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EXHIBIT 4.1
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CREDIT AGREEMENT
DATED AS OF OCTOBER 24, 2000
AMONG
INTERNATIONAL MULTIFOODS CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS,
SUNTRUST BANK,
AS SYNDICATION AGENT,
U.S. BANK NATIONAL ASSOCIATION
AS DOCUMENTATION AGENT,
AND
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
AND LETTER OF CREDIT ISSUING LENDER
BANC OF AMERICA SECURITIES, LLC
LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS ...........................................................1
1.1 Certain Defined Terms .........................................1
1.2 Other Interpretive Provisions ................................16
1.3 Accounting Principles ........................................17
ARTICLE II
THE CREDITS..........................................................17
2.1 Amounts and Terms of Commitments .............................17
2.2 Loan Accounts.................................................17
2.3 Procedure for Committed Borrowing.............................18
2.4 Conversion and Continuation Elections for
Committed Borrowings..........................................19
2.5 Bid Borrowings................................................20
2.6 Procedure for Bid Borrowings..................................20
2.7 Voluntary Termination or Reduction of Commitments.............24
2.8 Optional Prepayments..........................................24
2.9 Repayment.....................................................24
2.10 Interest......................................................24
2.11 Fees..........................................................25
2.12 Computation of Fees and Interest..............................26
2.13 Payments by the Company.......................................26
2.14 Payments by the Lenders to the Administrative Agent...........27
2.15 Sharing of Payments, etc......................................28
2.16 Optional Increase in Aggregate Commitment.....................30
2.17 Extension of Termination Date.................................30
ARTICLE III
THE LETTERS OF CREDIT................................................31
3.1 The Letter of Credit Subfacility..............................31
3.2 Issuance, Amendment and Extension of Letters of Credit........32
3.3 Risk Participations, Drawings and Reimbursements..............34
3.4 Repayment of Participations...................................36
3.5 Role of the Issuing Lender....................................37
3.6 Obligations Absolute..........................................37
3.7 Cash Collateral Pledge........................................38
3.8 Letter of Credit Fees.........................................38
3.9 International Standby Practices...............................39
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ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY...............................39
4.1 Taxes ........................................................39
4.2 Illegality....................................................41
4.3 Increased Costs and Reduction of Return.......................41
4.4 Funding Losses................................................42
4.5 Inability to Determine Rates..................................43
4.6 Certificates of Lenders.......................................43
4.7 Substitution of Lenders.......................................44
4.8 Survival......................................................44
ARTICLE V
CONDITIONS PRECEDENT.................................................44
5.1 Conditions of Initial CreditExtension ........................44
5.2 Conditions to All Credit Extensions...........................45
ARTICLE VI
REPRESENTATIONS AND WARRANTIES.......................................46
6.1 Organization and Existence ...................................46
6.2 Power and Authority; Authorization; Validity .................46
6.3 Financial Position ...........................................47
6.4 Litigation ...................................................47
6.5 No Violation of Law or Instrument ............................47
6.6 Federal Reserve Regulations ..................................47
6.7 No Default ...................................................48
6.8 ERISA Compliance .............................................48
6.9 Environmental Matters ........................................48
6.10 Regulated Entities ...........................................48
6.11 Subsidiaries .................................................48
6.12 Full Disclosure ..............................................48
6.13 Use of Proceeds ..............................................49
ARTICLE VII
AFFIRMATIVE COVENANTS ...............................................49
7.1 Corporate Existence ...........................................49
7.2 Payment of Taxes and Claims ...................................49
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7.3 Financial Statements ..........................................49
7.4 Compliance Certificate ........................................50
7.5 Notice of Default .............................................50
7.6 Compliance with Laws ..........................................50
7.7 Inspection of Property; Books and Records; Discussions ........50
7.8 Maintenance of Property .......................................51
7.9 Insurance .....................................................51
7.10 Compliance with ERISA .........................................51
7.11 Environmental Laws ............................................51
7.12 Notice of Ratings Change ......................................51
ARTICLE VIII
NEGATIVE COVENANTS ..................................................51
8.1 Financial Condition Covenants .................................51
8.2 Limitation on Liens ...........................................52
8.3 Consolidation, Merger and Sale of Assets ......................54
8.4 Use of Proceeds ...............................................54
8.5 ERISA .........................................................54
8.6 Change in Business ............................................55
ARTICLE IX
EVENTS OF DEFAULT ...................................................55
9.1 Event of Default ..............................................55
9.2 Remedies ......................................................57
9.3 Rights Not Exclusive ..........................................57
ARTICLE X
THE AGENT ...........................................................58
10.1 Appointment and Authorization .................................58
10.2 Delegation of Duties ..........................................58
10.3 Liability of Agents ...........................................58
10.4 Reliance by Agents ............................................59
10.5 Notice of Default .............................................59
10.6 Credit Decision ...............................................60
10.7 Indemnification of Agents .....................................60
10.8 Agents in Individual Capacity .................................61
10.9 Resignation; Removal; Successor Administrative Agent ..........61
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10.10 Withholding Tax ...............................................62
ARTICLE XI
MISCELLANEOUS .......................................................63
11.1 Amendments and Waivers ........................................63
11.2 Notices .......................................................64
11.3 No Waiver; Cumulative Remedies ................................65
11.4 Costs and Expenses ............................................65
11.5 Company Indemnification .......................................65
11.6 Payments Set Aside ............................................66
11.7 Successors and Assigns ........................................66
11.8 Assignments, Participations, etc ..............................66
11.9 Confidentiality ...............................................68
11.10 Set-off .......................................................69
11.11 Notification of Addresses, Lending Offices, Etc ...............69
11.12 Counterparts; Effective Date and Closing Date .................69
11.13 Severability ..................................................70
11.14 No Third Parties Benefitted ...................................70
11.15 Governing Law and Jurisdiction ................................70
11.16 Waiver of Jury Trial ..........................................70
11.17 Entire Agreement ..............................................71
11.18 Termination of the Existing Agreement .........................71
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SCHEDULES
Schedule 1.1 Pricing Schedule
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 6.11 Restricted Subsidiaries
Schedule 11.2 Offshore and Domestic Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Committed Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Invitation for Competitive Bids
Exhibit D Form of Competitive Bid
Exhibit E Form of Note
Exhibit F Form of Compliance Certificate
Exhibit G Form of Legal Opinion of Counsel to the Company
Exhibit H Form of Legal Opinion of Special Counsel to the
Administrative Agent
Exhibit I Form of Assignment and Acceptance
Exhibit J Form of Request for Increase
Exhibit K Form of Extension Request
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 24, 2000 among
INTERNATIONAL MULTIFOODS CORPORATION, a Delaware corporation (the "COMPANY"),
the several financial institutions from time to time party to this Agreement
(collectively the "LENDERS"; individually each a "LENDER"), Bank of America,
N.A., as letter of credit issuing lender, SUNTRUST BANK, as Syndication
Agent, U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent, and BANK OF
AMERICA, N.A., as Administrative Agent.
WHEREAS, the Lenders have agreed to make available to the Company a
revolving credit facility (with a letter of credit subfacility) upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
ABSOLUTE RATE - see SUBSECTION 2.6(b)(ii)(D).
ABSOLUTE RATE AUCTION means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to SECTION 2.6.
ABSOLUTE RATE BID LOAN means a Bid Loan that bears interest at
a rate determined with reference to the Absolute Rate.
ACQUISITION means the purchase, in one transaction or a series
of related transactions, directly or indirectly (including by merger,
tender offer, exchange offer, consolidation or otherwise) by the
Company and/or any of its Subsidiaries of more than 50% of the assets
or issued and outstanding stock of another Person.
ADJUSTED PRO RATA SHARE means for any Lender at any time the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) of such Lender's Commitment divided by the Aggregate
Commitment (or, after the Commitments have terminated, (i) the
principal amount of such Lender's Loans PLUS (without duplication) the
participation of such Lender in (or in the case of the Issuing Lender,
its unparticipated
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portion of) the Effective Amount of all L/C Obligations divided by
(ii) Total Outstandings.
ADMINISTRATIVE AGENT means Bank of America in its capacity as
administrative agent for the Lenders hereunder, and any successor
administrative agent arising under SECTION 10.9.
ADMINISTRATIVE AGENT'S PAYMENT OFFICE means the address for
payments to the Administrative Agent set forth on SCHEDULE 11.2 or
such other address as the Administrative Agent may from time to time
specify pursuant to SECTION 11.2.
AFFILIATE means, as to any Person, any other Person which,
directly or indirectly, is in control of, or is controlled by, or is
under common control with, such Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly
or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract or
otherwise.
AGENTS means the Administrative Agent, the Documentation Agent
and the Syndication Agent; and AGENT means any of the Administrative
Agent, the Documentation Agent or the Syndication Agent.
AGENT-RELATED PERSONS means Bank of America in its capacity as
Administrative Agent and in its capacity as Issuing Lender and any
successor administrative agent and any successor letter of credit
issuing lender hereunder, together with their respective Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
AGGREGATE COMMITMENT means at any time the aggregate amount of
the Commitments of all Lenders at such time. As of the Effective Date,
the Aggregate Commitment is $180,000,000.
AGREEMENT means this Credit Agreement.
APPLICABLE MARGIN means, (a) for any Base Rate Committed Loan,
zero, and (b) for any Offshore Rate Committed Loan, the applicable
percentage set forth in SCHEDULE 1.1 opposite the then-current Rating
Level.
ARRANGER means Banc of America Securities LLC., a Delaware
corporation, in its capacity as lead arranger and sole book manager
for the credit facility provided hereunder.
ASSIGNEE - see SUBSECTION 11.8(a).
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ATTORNEY COSTS means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all reasonable disbursements of
internal counsel.
BANK OF AMERICA means Bank of America, N.A., a national
banking association.
BANKRUPTCY CODE means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, ET SEQ.).
BASE RATE means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to
time by Bank of America as its "prime rate." (The "prime rate" is a
rate set by Bank of America based upon various factors including Bank
of America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced rate.)
Any change in the prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
BASE RATE COMMITTED LOAN means a Committed Loan, or an L/C
Advance, that bears interest based on the Base Rate.
BID BORROWING means a Borrowing hereunder consisting of one
or more Bid Loans made to the Company on the same day by one or more
Lenders.
BID LOAN means a Loan by a Lender to the Company under
SECTION 2.6, which may be a LIBOR Bid Loan or an Absolute Rate Bid
Loan.
BID LOAN LENDER means, in respect of any Bid Loan, the Lender
making such Bid Loan to the Company.
BORROWING means a borrowing hereunder consisting of Committed
Loans of the same Type, or LIBOR Bid Loans or Absolute Rate Bid Loans,
made to the Company on the same day by the Lenders under ARTICLE II
and, other than in the case of Base Rate Committed Loans, having the
same Interest Period. A Borrowing may be a Bid Borrowing or a
Committed Borrowing.
BORROWING DATE means any date on which a Borrowing occurs
under SECTION 2.3 or 2.6.
BUSINESS DAY means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City, Chicago,
Charlotte or San Francisco are authorized or required by law to close
and, if the applicable Business Day relates to any Offshore
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Rate Loan, means such a day on which dealings are carried on in the
applicable offshore dollar interbank market.
CAPITAL ADEQUACY REGULATION means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
CASH COLLATERALIZE means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Administrative
Agent, the Issuing Lender and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative
Agent and the Required Lenders. Derivatives of such term shall have
corresponding meanings. Cash collateral shall be maintained in blocked
accounts of Bank of America or, with Bank of America's consent, the
Issuing Lender.
CLOSING DATE means the date on which all conditions precedent
set forth in SECTION 5.1 are satisfied or waived by all Lenders (or,
in the case of SUBSECTION 5.1(e), waived by the Person entitled to
receive the applicable payment).
CODE means the Internal Revenue Code of 1986.
COMMITTED BORROWING means a Borrowing hereunder consisting of
Committed Loans made by the Lenders ratably according to their
respective Pro Rata Shares.
COMMITTED LOAN means a Loan by a Lender to the Company under
SECTION 2.3, which may be an Offshore Rate Committed Loan or a Base
Rate Committed Loan (each a "Type" of Committed Loan).
COMMITMENT - see SECTION 2.1. The amount of each Lender's
Commitment as of the Effective Date is specified on SCHEDULE 2.1.
COMMON STOCKHOLDERS' EQUITY means the common stockholders'
equity of the Company and its Subsidiaries determined on a
consolidated basis.
COMPANY - see the PREAMBLE.
COMPETITIVE BID means an offer by a Lender to make a Bid Loan
in accordance with SUBSECTION 2.6(b).
COMPLIANCE CERTIFICATE means a certificate substantially in
the form of EXHIBIT F.
CONVERSION/CONTINUATION DATE means any date on which, under
SECTION 2.4, the Company (a) converts Committed Loans of one Type to
another Type or (b) continues as
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Committed Loans of the same Type, but with a new Interest Period,
Committed Loans having an Interest Period expiring on such date.
CREDIT EXTENSION means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
DOCUMENTATION AGENT means U.S. Bank National Association in
its capacity as documentation agent hereunder.
DOLLARS, DOLLARS and $ each mean lawful money of the United
States.
EARNINGS BEFORE INCOME TAX means, for any period, total
pre-tax earnings from the continuing and discontinued operations of
the Company and its Subsidiaries, as determined for such period in
accordance with GAAP on a consolidated basis.
EFFECTIVE AMOUNT means, with respect to the L/C Obligations on
any date, the amount of the L/C Obligations on such date after giving
effect to any Issuances of Letters of Credit occurring on such date
and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursement of
outstanding unpaid drawings under any Letter of Credit or any
reduction in the maximum amount available for drawing under any Letter
of Credit taking effect on such date.
EFFECTIVE DATE means the date on which the Administrative
Agent has received counterparts of this Agreement executed by the
parties hereto.
ELIGIBLE ASSIGNEE means any of (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $500,000,000; (b) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the OECD), or a political subdivision of any such country, and having
a combined capital and surplus of at least $500,000,000, provided that
such bank is acting through a branch or agency located in the United
States; and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a
Subsidiary of a Person of which a Lender is a Subsidiary, or (iii) a
Person of which a Lender is a Subsidiary.
ENVIRONMENTAL CLAIMS means all claims, however asserted, by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
ENVIRONMENTAL LAWS means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with,
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any Governmental Authorities, in each case relating to environmental
and land use matters.
ERISA means the Employee Retirement Income Security Act
of 1974.
ERISA AFFILIATE means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
EVENT OF DEFAULT - see SECTION 9.1.
EXISTING AGREEMENT - see SECTION 5.1.
EXTENSION REQUEST means a request for an extension of the
Termination Date substantially in the form of EXHIBIT K.
FACILITY FEE RATE means the applicable rate set forth in
SCHEDULE 1.1 opposite the then-current Rating Level.
FEDERAL FUNDS RATE means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by the
Administrative Agent.
FIXED CHARGE COVERAGE means the quotient of:
(a) the consolidated sum of (i) net interest expense (meaning
interest expense reduced by capitalized interest and interest income),
(ii) minimum rentals for operating leases of the Company and its
consolidated Subsidiaries and (iii) Earnings Before Income Tax (exclusive
of unusual or nonrecurring non-cash items) DIVIDED BY
(b) the consolidated sum of net interest expense (meaning
interest expense reduced by capitalized interest and interest income) and
minimum rentals for operating leases of the Company and its consolidated
Subsidiaries.
FRB means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
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FURTHER TAXES means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account
of amounts payable or paid pursuant to SECTION 4.1.
GAAP means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature
and authority within the U.S. accounting profession), which are applicable
to the circumstances as of the date of any determination.
GOVERNMENTAL AUTHORITY means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
HONOR DATE - see SUBSECTION 3.3(b).
INDEMNIFIED LIABILITIES - see SECTION 11.5.
INDEMNIFIED PERSON - see SECTION 11.5.
INSOLVENCY PROCEEDING means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case undertaken under any U.S. Federal,
state or foreign law, including the Bankruptcy Code.
INTEREST PAYMENT DATE means, as to any Loan other than a Base Rate
Committed Loan, the last day of each Interest Period applicable to such
Loan and, as to any Base Rate Committed Loan, the last Business Day of
each calendar quarter, PROVIDED that (a) if any Interest Period for an
Offshore Rate Committed Loan exceeds three months, the date that falls
three months after the beginning of such Interest Period shall also be an
Interest Payment Date and (b) as to any Bid Loan, such intervening dates
prior to the maturity thereof as may be specified by the Company and
agreed to by the applicable Bid Loan Lender in the applicable Competitive
Bid also shall be Interest Payment Dates.
INTEREST PERIOD means, (a) as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or, in the case of any
Offshore Rate Committed
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Loan, on the Conversion/Continuation Date on which such Loan is converted
into or continued as an Offshore Rate Committed Loan, and ending on the
date one, two, three or six months thereafter (or during the first thirty
days following the Closing Date, ending on any date which is less than
thirty days thereafter) as selected by the Company in its Notice of
Committed Borrowing, Notice of Conversion/Continuation or Invitation for
Competitive Bids, as the case may be; and (b) as to any Absolute Rate Bid
Loan, a period of not less than seven days and not more than 180 days as
selected by the Company in the applicable Invitation for Competitive Bids;
PROVIDED that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless, in the case of an
Offshore Rate Loan, the result of such extension would be to
carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business
Day;
(ii) any Interest Period for an Offshore Rate Loan
(other than an Interest Period which is less than thirty days)
that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
INVITATION FOR COMPETITIVE BIDS - see SECTION 2.6(a).
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
ISSUANCE DATE - see SUBSECTION 3.1(a).
ISSUE means, with respect to any Letter of Credit, to issue or to
extend the expiry of, or to increase the amount of, such Letter of Credit;
and the terms "ISSUED," "ISSUING" and "ISSUANCE" have corresponding
meanings.
ISSUING LENDER means Bank of America in its capacity as issuer of
one or more Letters of Credit hereunder, together with any replacement
letter of credit issuer arising under SUBSECTION 10.1(b) or SECTION 10.9.
L/C ADVANCE means each Lender's participation in any L/C Borrowing
in accordance with its Pro Rata Share.
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L/C AMENDMENT APPLICATION means an application form for
amendment of an outstanding standby letter of credit as shall at any
time be in use by the Issuing Lender, as the Issuing Lender shall
request.
L/C APPLICATION means an application form for issuance of a standby
letter of credit as shall at any time be in use by the Issuing Lender, as
the Issuing Lender shall request.
L/C BORROWING means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the
date when made nor converted into a Borrowing of Committed Loans under
SUBSECTION 3.3(d).
L/C COMMITMENT means the commitment of the Issuing Lender to Issue,
and the commitment of the Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under SECTION 3 in an
aggregate amount not to exceed on any date the lesser of $20,000,000 and
the Aggregate Commitment; it being understood that the L/C Commitment is a
part of the Aggregate Commitment rather than a separate, independent
commitment.
L/C FEE RATE means, at any time, the applicable rate set forth on
SCHEDULE 1.1 opposite the then-current Rating Level; PROVIDED that upon
notice to the Company from the Administrative Agent (acting at the request
or with the consent of the Required Lenders) during the existence of any
Event of Default, and for so long as such Event of Default continues, such
rate shall be increased by 2%.
L/C OBLIGATIONS means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit, including
all outstanding L/C Borrowings.
L/C-RELATED DOCUMENTS means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Lender's
standard form documents for letter of credit issuances.
LENDER - see the PREAMBLE. References to the "Lenders" shall
include Bank of America in its capacity as Issuing Lender; for purposes
of clarification only, to the extent that the Issuing Lender may have
any rights or obligations in addition to that of the other Lenders due
to its status as Issuing Lender, its status as such will be specifically
referenced.
LENDING OFFICE means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office", as the case may be, on SCHEDULE 11.2, or
such other office or offices as such
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Lender may from time to time notify the Company and the Administrative
Agent pursuant to SECTION 11.2.
LETTER OF CREDIT means any standby letter of credit Issued by the
Issuing Lender pursuant to SECTION 3.
LIBOR AUCTION means a solicitation of Competitive Bids setting
forth a LIBOR Bid Margin pursuant to SECTION 2.6.
LIBOR BID LOAN means any Bid Loan that bears interest at a rate
based upon the Offshore Rate.
LIBOR BID MARGIN - see SUBSECTION 2.6(b)(ii)(C).
LIEN means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance,
lien (statutory or other) or preferential arrangement of any kind or
nature whatsoever in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease, or
any financing lease having substantially the same economic effect as any
of the foregoing, but not including the interest of a lessor under an
operating lease).
LOAN means an extension of credit by a Lender to the Company under
ARTICLE II or ARTICLE III. A Loan may be a Committed Loan, Bid Loan or L/C
Advance.
LOAN DOCUMENTS means this Agreement, any Notes and the L/C-Related
Documents.
MATERIAL ADVERSE EFFECT means a material adverse change in, or a
material adverse effect upon, the business, assets or condition, financial
or otherwise, of the Company and its Subsidiaries taken as a whole.
MATERIAL SUBSIDIARY means, at any time, any Restricted Subsidiary
that had a net worth of $10,000,000 or more as of the last day of any
month during the preceding 12-month period.
MOODY'S means Moody's Investors Service, Inc. or any successor
thereto.
MULTIEMPLOYER PLAN means a "multiemployer plan", within the meaning
of Section 4001(a)(3) of ERISA, with respect to which the Company or any
ERISA Affiliate may have any liability.
NET WORTH means Common Stockholders' Equity plus (a) any preferred
stock of the Company, as set forth on a consolidated balance sheet of the
Company, and (b) the
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lesser of (i) the outstanding amount of any guaranty of an obligation
given by the Company or any Subsidiary of the Company to a lender to a
trust holding assets of any employee benefit plan of the Company or any
Subsidiary of the Company for the purpose of allowing such trust to borrow
monies, which amount has been reflected on the consolidated balance sheet
of the Company as a reduction of common stockholders' equity, or (ii)
two-thirds of the value of any stock owned by such trust securing such
obligation of the trust. The value of a share of common stock (par value
ten cents per share) of the Company at any point in time shall be the
average closing price of a share of such common stock on the New York
Stock Exchange, Inc. (or its successor) for the 90-day period immediately
preceding the date of determination.
NOTE means a promissory note executed by the Company in favor
of a Lender pursuant to SUBSECTION 2.2(b), in substantially the form of
EXHIBIT E.
NOTICE OF COMMITTED BORROWING means a notice in substantially
the form of EXHIBIT A.
NOTICE OF CONVERSION/CONTINUATION means a notice in
substantially the form of EXHIBIT B.
OBJECTING LENDER - see SECTION 2.17.
OBLIGATIONS means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Lender, any Agent or any Indemnified Person,
whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, or now existing or
hereafter arising.
OFFSHORE RATE means:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate on such other page
or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of
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approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upward to the
next 1/100th of 1%) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Offshore Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in
the offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period.
OFFSHORE RATE COMMITTED LOAN means a Committed Loan that bears
interest based on the Offshore Rate.
OFFSHORE RATE LOAN means an Offshore Rate Committed Loan or a
LIBOR Bid Loan.
OPERATING PROPERTY means any manufacturing or processing plant,
office facility, warehouse or distribution center, together with the
land upon which it is situated and fixtures comprising a part thereof,
located in the United States or its territories or possessions or in
Canada and owned and operated now or hereafter by the Company or any
Restricted Subsidiary and having a net book value on the date as of
which the determination is being made of more than 0.5% of Tangible Net
Worth.
OTHER TAXES means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
PARTICIPANT - see SUBSECTION 11.8(c).
PAYMENT SHARING NOTICE means a written notice from the Company
or any Lender informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the Administrative
Agent to allocate payments received from the Company in accordance with
SUBSECTION 2.15(b).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
PENSION PLAN means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA, other than a Multiemployer Plan, with
respect to which the Company or any ERISA Affiliate may have any
liability.
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PERSON means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
PLAN means an employee benefit plan (as defined in Section 3(3)
of ERISA), other than a Multiemployer Plan, with respect to which the
Company may have any liability.
PRO RATA SHARE means, as to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) of such Lender's Commitment divided by the Aggregate
Commitment (or, after the Commitments have terminated, (i) the principal
amount of such Lender's Committed Loans plus (without duplication) the
participation of such Lender in (or in the case of the Issuing Lender,
the unparticipated portion of) the Effective Amount of all L/C
Obligations divided by (ii) the aggregate principal amount of all
Committed Loans PLUS (without duplication) the Effective Amount of all
L/C Obligations).
RATING LEVEL means at any time the Level set forth in the table
below opposite the then-current rating for the senior unsecured
non-credit-enhanced long-term debt of the Company by Moody's or S&P,
whichever results in the numerically higher (one being highest) Level;
PROVIDED that (a) if there is a numerical difference of two or more
Levels between the Moody's Rating and the S&P Rating, the
then-applicable Rating Level shall be one Level below the higher of such
Levels; and (b) if at any time there is no Moody's Rating AND no S&P
Rating, the Rating Level shall be Level VI.
<TABLE>
<CAPTION>
Level Moody's Rating S&P Rating
----- -------------- ----------
<S> <C> <C>
I A2 or better A or better
II A3 A-
III Baa1 BBB+
IV Baa2 BBB
V Baa3 BBB-
VI less than Baa3 less than BBB-
</TABLE>
The Rating Level shall change two days after any applicable change in
rating by Moody's or S&P.
REPLACEMENT LENDER - see SECTION 4.7.
REQUIRED LENDERS means Lenders holding Adjusted Pro Rata Shares
aggregating more than 50%.
REQUIREMENT OF LAW means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator
or of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property
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or to which such Person or any of its property is subject.
RESPONSIBLE OFFICER means the Chairman, the President, any Vice
President, the Chief Financial Officer, the Controller, the Treasurer
or any Assistant Treasurer of the Company.
RESTRICTED SUBSIDIARY means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
S&P means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto. ---
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
SUBSIDIARY of a Person means any corporation, association,
partnership, limited liability company, joint venture or other
business entity of which more than 50% of the voting stock, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by such
Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the Company.
SYNDICATION AGENT means SunTrust Bank in its capacity as
syndication agent hereunder.
TANGIBLE NET WORTH means, at any time, Net Worth less the amount of
goodwill, debt discount and other like intangibles of the Company and its
Subsidiaries determined on a consolidated basis.
TAXES means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, such taxes (including
income taxes or franchise taxes) as are taxes imposed on or measured by
each Lender's or the Administrative Agent's net income, profits or
capitalization by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or maintains a lending office.
TERMINATION DATE means the earlier to occur of:
(a) October 21, 2005 (or such later date to which the
Termination Date may have been extended pursuant to SECTION 2.17);
and
(b) the date on which the Commitments terminate in
accordance with
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the provisions of this Agreement.
TOTAL CAPITALIZATION means, at any time, the sum of Total
Indebtedness and Net Worth. For purposes of computing Total
Capitalization, any decrease since August 26, 2000 to Common
Stockholders' Equity as a component of Net Worth resulting from a
non-recurring non-cash charge in connection with the write-off of
goodwill and other intangibles shall be added back to Common
Stockholders' Equity.
TOTAL INDEBTEDNESS means, at any time, total indebtedness for
monies borrowed by the Company or any of its Subsidiaries as such items
appear on the consolidated balance sheet of the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP.
TOTAL OUTSTANDINGS means the sum of the aggregate principal
amount of all outstanding Loans (whether Committed Loans or Bid Loans)
plus the Effective Amount of all L/C Obligations.
TYPE has the meaning specified in the definition of "Committed
Loan."
UNITED STATES and U.S. each means the United States of America.
UNMATURED EVENT OF DEFAULT means any event or circumstance
which, with the giving of notice, the lapse of time, or both, would (if
not cured or otherwise remedied during such time) constitute an Event
of Default.
UNRESTRICTED SUBSIDIARY means (a) any Subsidiary substantially
all of the physical properties of which are located, or substantially
all of the business of which is carried on, outside of the United
States, and its territories and possessions, and Canada, (b)(i) any
Subsidiary the primary business of which consists of financing
operations in connection with leasing and conditional sales transactions
on behalf of the Company and its Subsidiaries and/or purchasing accounts
receivable, and/or making loans secured by accounts receivable or
inventory, or which is otherwise primarily engaged in the business of a
financing company, (ii) Lucan Feed Service, Inc., (iii) The Pickaway
Grain Company, (iv) Sea-Pac Corp., (v) The Boston Sea Party Restaurants,
Inc., (vi) Davenport Industrial Supply Co., (vii) International
Multifoods Charitable Foundation, (viii) MINETCO - Minnesota
International Export Trading Company, Inc. (ix) Multifoods Bakery
Distributors, Inc., (x) Multifoods Bakery International, Inc., or (xi)
any other Subsidiary which has been designated as an Unrestricted
Subsidiary by the Board of Directors of the Company (provided that no
Restricted Subsidiary may be designated as an Unrestricted Subsidiary if
at the time of such designation such Restricted Subsidiary owns and
operates an Operating Property or owns any shares of stock or
indebtedness of a Restricted Subsidiary), in each case unless and until
any of the Subsidiaries referred to in the foregoing CLAUSES (i) through
(xi) shall be designated by the Board of Directors of the Company as a
Restricted Subsidiary, and (c) any Subsidiary a majority of the voting
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stock of which shall at any time be owned, directly or indirectly, by one
or more Unrestricted Subsidiaries
1.2 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to
the singular and lural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and subsection, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent such
amendments and other modifications are not prohibited by the terms of
any Loan Document, and (ii) references to any statute or regulation are
to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of
this Agreement.
(f) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their
terms. Unless otherwise expressly provided herein, any reference to any
action of any Agent, the Lenders or the Required Lenders by way of
consent, approval or waiver shall be deemed modified by the phrase "in
its/their sole discretion."
(g) This Agreement and the other Loan Documents are the
result of
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negotiations among and has been reviewed by counsel to the Agents, the
Company and the other parties, and is the product of all parties.
Accordingly, this Agreement shall not be construed against the Lenders
or the Agents merely because of the Agents' or Lenders' involvement in
its preparation.
1.3 ACCOUNTING PRINCIPLES.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and
all financial computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied; PROVIDED that if the
Company notifies the Administrative Agent that the Company wishes to
amend any covenant in ARTICLE VIII to eliminate the effect of any change
in GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Company that the Required Lenders wish to amend
ARTICLE VIII for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory
to the Company and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS. Each Lender severally
agrees, on the terms and conditions set forth herein, to make Committed
Loans to the Company from time to time on any Business Day during the
period from the Closing Date to the Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth on
SCHEDULE 2.1 (such amount, as the same may be reduced under SECTION 2.7
or as a result of one or more assignments under SECTION 11.8, such
Lender's "COMMITMENT"); PROVIDED that the Total Outstandings shall not
at any time exceed the Aggregate Commitment; and PROVIDED, FURTHER, that
the aggregate principal amount of the Committed Loans of any Lender PLUS
the participation of such Lender in the Effective Amount of all L/C
Obligations shall not at any time exceed the amount of such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject
to the other terms and conditions hereof, the Company may borrow under
this SECTION 2.1, prepay under SECTION 2.8 and reborrow under this
SECTION 2.1.
2.2 LOAN ACCOUNTS. (a) The Loans made by each Lender and the
Letters of Credit Issued by the Issuing Lender shall be evidenced by one
or more accounts or records maintained by such Lender or the Issuing
Lender, as the case may be, in the
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ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Lender and each Lender shall be
conclusive (absent manifest error) of the amount of the Loans made by
the Lenders to the Company, and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit
or otherwise affect the obligation of the Company hereunder to pay any
amount owing with respect to the Loans or the Letters of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by
one or more Notes, instead of or in addition to loan accounts. Each such
Lender shall endorse on the schedules annexed to its Note(s) the date,
amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto. Each such
Lender is irrevocably authorized by the Company to endorse its Note(s)
and each Lender's record shall be conclusive absent manifest error;
PROVIDED, HOWEVER, that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the Company hereunder or under any
such Note to such Lender.
2.3 PROCEDURE FOR COMMITTED BORROWING. (a) Each Committed
Borrowing shall be made upon the Company's irrevocable written notice
delivered to the Administrative Agent in the form of a Notice of
Committed Borrowing, which notice must be received by the Administrative
Agent prior to (i) 10:30 a.m. (Chicago time) two Business Days prior to
the requested Borrowing Date, in the case of Offshore Rate Loans, and
(ii) 11:00 a.m. (Chicago time) on the requested Borrowing Date, in the
case of Base Rate Loans, specifying:
(A) the amount of the Committed Borrowing, which
shall be in an aggregate amount of $5,000,000 or a higher
integral multiple of $1,000,000;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising such Committed
Borrowing; and
(D) in the case of Offshore Rate Committed Loans,
the duration of the initial Interest Period therefor.
(b) The Administrative Agent will promptly notify each
Lender of its receipt of any Notice of Committed Borrowing and of the
amount of such Lender's Pro Rata Share of such Borrowing.
(c) Subject to the conditions precedent set forth herein,
each Lender
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will make the amount of its Pro Rata Share of each Committed Borrowing
available to the Administrative Agent for the account of the Company at
the Administrative Agent's Payment Office by 12:00 noon (Chicago time)
on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. Such amounts will then be made
available promptly to the Company by the Administrative Agent, at such
account and office as the Company shall direct from time to time, in
like funds as received by the Administrative Agent.
(d) After giving effect to any Committed Borrowing, unless
the Administrative Agent otherwise consents, there may not be more than
15 different Interest Periods in effect for all Borrowings (whether
Committed Borrowings or Bid Borrowings).
2.4 CONVERSION AND CONTINUATION ELECTIONS FOR COMMITTED
BORROWINGS. (a) The Company may, upon irrevocable written Administrative
Agent in accordance with SUBSECTION 2.4(b):
(i) elect, as of any Business Day, in the case of Base
Rate Committed Loans, or as of the last day of the applicable
Interest Period, in the case of Offshore Rate Committed Loans, to
convert any such Committed Loans (or any part thereof in an
aggregate amount of $5,000,000 or a higher integral multiple of
$1,000,000) into Committed Loans of the other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Committed Loans having Interest
Periods expiring on such day (or any part thereof in an aggregate
amount of $5,000,000 or a higher integral multiple of $1,000,000);
PROVIDED that if at any time the aggregate amount of Offshore Rate
Committed Loans in respect of any Committed Borrowing is reduced, by
payment, prepayment, or conversion of any part thereof, to be less than
$5,000,000, such Offshore Rate Committed Loans shall automatically
convert into Base Rate Committed Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not
later than (i) 10:30 a.m. (Chicago time) at least two Business Days in
advance of the Conversion/Continuation Date, if the Committed Loans are
to be converted into or continued as Offshore Rate Committed Loans; and
(ii) 11:00 a.m. (Chicago time) on the Conversion/Continuation Date, if
the Committed Loans are to be converted into Base Rate Committed Loans,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be
converted or continued;
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(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) in the case of conversions into Offshore Rate
Committed Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Committed Loans, the Company has failed to
select timely a new Interest Period to be applicable to such Offshore
Rate Committed Loans, the Company shall be deemed to have elected to
convert such Offshore Rate Committed Loans into Base Rate Committed
Loans effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation, or, if no
timely notice is provided by the Company, the Administrative Agent will
promptly notify each Lender of the details of any automatic conversion.
All conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Committed Loans held by
each Lender with respect to which the notice was given.
(e) Unless the Required Lenders otherwise consent, during
the existence of an Event of Default or Unmatured Event of Default, the
Company may not elect to have a Loan converted into or continued as an
Offshore Rate Committed Loan.
(f) After giving effect to any conversion or continuation
of Committed Loans, unless the Administrative Agent shall otherwise
consent, there may not be more than 15 different Interest Periods in
effect for all Loans (whether Committed Loans or Bid Loans).
2.5 BID BORROWINGS. In addition to Committed Borrowings pursuant
to SECTION 2.3, each Lender severally agrees that the Company may, as
set forth in SECTION 2.6, from time to time prior to the Termination
Date request the Lenders to submit offers to make Bid Loans to the
Company; PROVIDED that the Lenders may, but shall have no obligation to,
submit such offers and the Company may, but shall have no obligation to,
accept any such offers; and PROVIDED, FURTHER, that (a) the Total
Outstandings shall not at any time exceed the Aggregate Commitment and
(b) after giving effect to any Bid Borrowing, there may not be more than
15 different Interest Periods in effect for all Borrowings (whether Bid
Borrowings or Committed Borrowings).
2.6 PROCEDURE FOR BID BORROWINGS. (a) When the Company wishes to
request the Lenders to submit offers to make Bid Loans hereunder, it
shall transmit to each Lender by facsimile transmission a notice in
substantially the form of EXHIBIT C (an "INVITATION FOR COMPETITIVE
BIDS") so as to be received no later than 9:00 a.m. (Chicago time) (x)
four Business Days prior to the date of a proposed Bid Borrowing in the
case of a LIBOR Auction or (y) one Business Day prior to the date of a
proposed Bid Borrowing
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in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the amount of such Bid Borrowing, which shall be in
an aggregate amount of $5,000,000 or a higher integral multiple
of $1,000,000;
(iii) whether the Competitive Bids requested are to be
for LIBOR Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of "Interest
Period" herein.
(b) (i) Each Lender may at its discretion submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to
any Invitation for Competitive Bids. Each Competitive Bid must
comply with the requirements of this SUBSECTION 2.6(b) and must be
submitted to the Company by facsimile transmission not later than
(A) 8:30 a.m. (Chicago time) three Business Days prior to the
proposed date of Borrowing, in the case of a LIBOR Auction, or (B)
8:30 a.m. (Chicago time) on the proposed date of Borrowing, in the
case of an Absolute Rate Auction.
(ii) Each Competitive Bid shall be in substantially the
form of EXHIBIT D, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid Loan
for which such Competitive Bid is being made, which
principal amount (1) may be equal to, greater than or less
than the Commitment of the quoting Lender, (2) must be
$5,000,000 or a higher integral multiple of $1,000,000 and
(3) may not exceed the principal amount of Bid Loans for
which Competitive Bids were requested;
(C) if the Company elects a LIBOR Auction,
the margin above or below Offshore Rate (the "LIBOR BID
MARGIN") offered for each such Bid Loan, expressed as a
percentage (rounded to the nearest 1/16th of 1%) to be added
to or subtracted from the applicable Offshore Rate, and the
Interest Period applicable thereto;
(D) if the Company elects an Absolute Rate
Auction, the rate of interest per annum (which shall be an
integral multiple of 1/100th of 1%) (the "ABSOLUTE RATE")
offered for each such Bid Loan, and
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the Interest Period applicable thereto; and
(E) the identity of the quoting Lender.
A Competitive Bid may contain up to three separate offers by the
quoting Lender with respect to each Interest Period specified in
the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with
EXHIBIT D or does not specify all of the information
required by SUBSECTION (b)(ii) of this Section;
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for
Competitive Bids; or
(D) arrives after the time set forth in
SUBSECTION (b)(i) of this Section.
(iv) Subject only to the provisions of SECTIONS 4.2,
4.5 and 5.2 hereof and the provisions of this SUBSECTION (b), any
Competitive Bid shall be irrevocable except with the written
consent of the Company.
(c) Not later than 9:30 a.m. (Chicago time) three Business
Days prior to the proposed date of Borrowing, in the case of a LIBOR
Auction, or 9:30 a.m. (Chicago time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction, the Company shall notify (x)
each Lender which submitted a Competitive Bid if its offer has been
accepted and, if applicable, the amount of the Bid Loan or Bid Loans to
be made by it on the date of the relevant Bid Borrowing and (y) the
Administrative Agent of the amount of, rate of interest on and Interest
Period for, and the identity of the Lender which is to make, each Bid
Loan to be made on the date of each Bid Borrowing resulting from each
LIBOR Auction and Absolute Rate Auction. The Company shall be under no
obligation to accept any offer and may choose to reject all offers. In
the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that is accepted.
The Company may accept any Competitive Bid in whole or in part; PROVIDED
that:
(i) the aggregate principal amount of each Bid Borrowing
may not exceed the applicable amount set forth in the related
Invitation for Competitive Bids;
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(ii) the principal amount of each Bid Borrowing must be
$5,000,000 or a higher integral multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis
of ascending LIBOR Bid Margins or Absolute Rates, as the case may be,
within each Interest Period; and
(iv) the Company may not accept any offer that is
described in SUBSECTION 2.6(b)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(d) If offers are made by two or more Lenders with the
same LIBOR Bid Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal
amount of Bid Loans in respect of which such offers are accepted shall
be allocated by the Company among such Lenders as nearly as possible (in
such multiples, not less than $1,000,000, as the Company may deem
appropriate) in proportion to the aggregate principal amounts of such
offers. Determination by the Company of the amount of Bid Loans shall be
conclusive in the absence of manifest error.
(e) Subject to the conditions precedent set forth herein
(including, if applicable, SECTIONS 4.2 and 4.5), each Lender which has
received notice pursuant to SUBSECTION 2.6(c) that its Competitive Bid
has been accepted shall make the amounts of such Bid Loans available to
the Administrative Agent for the account of the Company at the
Administrative Agent's Payment Office by 1:00 p.m. (Chicago time) on
such date of Bid Borrowing, in funds immediately available to the
Administrative Agent. Such funds will then be made available promptly to
the Company by the Administrative Agent, at such account and office as
the Company shall direct from time to time, in like funds as received by
the Administrative Agent.
(f) Promptly following each Bid Borrowing, the Company
shall notify the Administrative Agent and each Lender which so requests
of the ranges of bids submitted and the highest and lowest Bids accepted
for each Interest Period requested by the Company and the aggregate
amount borrowed pursuant to such Bid Borrowing.
(g) From time to time, the Company and the Lenders shall
furnish such information to the Administrative Agent as the
Administrative Agent may request relating to the making of Bid Loans,
including the amounts, interest rates, dates of borrowings and
maturities thereof, for purposes of the allocation of amounts received
from the Company for payment of all amounts owing hereunder.
(h) Nothing in this SECTION 2.6 shall be construed as a
right of first offer in favor of the Lenders or to otherwise limit the
ability of the Company to request
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and accept credit facilities from any Person (including any of the
Lenders), provided that no Event of Default or Unmatured Event of
Default would otherwise arise or exist as a result of the Company
executing, delivering or performing under such other credit facilities.
2.7 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The
Company may, upon not less than five Business Days' prior notice to the
Administrative Agent, terminate the Commitments, or permanently reduce
the Aggregate Commitment, without penalty, by an aggregate amount of
$5,000,000 or a higher integral multiple of $1,000,000; UNLESS, after
giving effect thereto and to any payments or prepayments of Loans made
on the effective date thereof, the Total Outstandings would exceed the
amount of the Aggregate Commitment then in effect. Once reduced in
accordance with this Section, the Commitments may not be increased
(except as provided in SECTION 2.16). Any reduction of the Commitments
shall be applied to each Lender according to its Pro Rata Share.
2.8 OPTIONAL PREPAYMENTS. (a) Subject to SECTION 4.4, the
Company may, from time to time, upon irrevocable notice to the
Administrative Agent not later than 10:30 a.m. (Chicago time) on any
Business Day, in the case of Base Rate Loans, and on the day which is
two Business Days prior to the date of prepayment, in the case of
Offshore Rate Loans, ratably prepay Committed Loans in whole or in part,
in an aggregate amount of $5,000,000 or a higher integral multiple of
$1,000,000. Such notice of prepayment shall specify the date and amount
of such prepayment and the Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of
any such notice, and of such Lender's Pro Rata Share of such prepayment.
If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein, together with, in the case of
Offshore Rate Committed Loans, accrued interest to such date on the
amount prepaid and any amounts required pursuant to SECTION 4.4.
(b) Bid Loans may not be voluntarily prepaid.
2.9 REPAYMENT. The Company shall repay each Bid Loan on the last
day of each Interest Period therefor. The Company shall repay all Loans
(including any outstanding Bid Loan) on the Termination Date.
2.10 INTEREST. (a) Each Committed Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Offshore Rate or the Base Rate, as
the case may be (and subject to the Company's right to convert to the
other Type of Committed Loan under SECTION 2.4), PLUS the Applicable
Margin as in effect from time to time. Each Bid Loan shall bear interest
on the outstanding principal amount thereof from the relevant Borrowing
Date at a rate per annum equal to the Offshore Rate plus (or minus) the
LIBOR Bid Margin or at the Absolute Bid Rate, as the case may be.
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(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest also shall be paid on the date of any
conversion of Offshore Rate Committed Loans under SECTION 2.4 and
prepayment of Offshore Rate Committed Loans under SECTION 2.8, in each
case for the portion of the Loans so converted or prepaid.
(c) The Company shall pay to each Lender, as long as such
Lender shall be required under regulations of the FRB to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional interest on the unpaid principal
amount of each Offshore Rate Committed Loan equal to the actual costs of
such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive),
payable on each date on which interest is payable on such Loan, provided
that the Company shall have received at least 15 days' prior written
notice (with a copy to the Administrative Agent) of the amount of such
additional interest from such Lender. If a Lender fails to give notice
15 days prior to the relevant Interest Payment Date, such additional
interest shall be payable 15 days after receipt of such notice.
(d) Notwithstanding the foregoing provisions of this
Section, if all or any portion of the principal amount of any Loan shall
not be paid when due (whether at stated maturity, by acceleration or
otherwise), THEN the Company shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on such
overdue principal amount at a rate per annum equal to the rate otherwise
applicable thereto pursuant to the terms hereof (or, after the end of
the applicable Interest Period for any Offshore Rate Committed Loan or
Bid Loan, the Base Rate) plus 2%. All such interest shall be payable on
demand.
(e) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period
for which interest is computed hereunder, to the extent (but only to the
extent) that contracting for or receiving such payment by such Lender would
be contrary to the provisions of any law applicable to such Lender limiting
the highest rate of interest that may be lawfully contracted for, charged
or received by such Lender, and in such circumstances the Company shall pay
such Lender interest at the highest rate permitted by applicable law.
2.11 FEES.
(a) ADMINISTRATIVE AGENT'S AND ARRANGER'S FEES. The Company
agrees to pay to the Administrative Agent and the Arranger such fees at
such times and in such amounts as are mutually agreed to from time to time
by the Company and the Administrative Agent or the Arranger, as the case
may be.
(b) FACILITY AND UTILIZATION FEES. The Company shall pay to
the
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Administrative Agent for the account of each Lender a facility fee computed
at the Facility Fee Rate on the average daily amount of such Lender's
Commitment (whether used or unused) or, if the Commitments have terminated,
on the principal amount of all of such Lender's Committed Loans plus the
participation of such Lender in (or in the case of the Issuing Lender, its
unparticipated portion of) the Effective Amount of all L/C Obligations. The
Company shall pay to the Administrative Agent for the account of each
Lender a utilization fee at 0.125% per annum on the total principal amount
of such Lender's outstanding Committed Loans for each day on which the
aggregate principal amount of all Loans is equal to or greater than 33% of
the Aggregate Commitment. Such facility fees and (to the extent applicable)
utilization fees shall accrue from the Closing Date to the Termination
Date, and thereafter until all Loans and L/C Obligations are paid in full
and all Letters of Credit are terminated, and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter,
with the final payment to be made on the Termination Date (or, if later,
the date all Loans and L/C Obligations are paid in full and all Letters of
Credit are terminated); provided that, in connection with any reduction of
the Commitments under SECTION 2.7, the accrued facility fee calculated for
the period ending on the date of such reduction shall be paid on the date
of such reduction, with the following quarterly payment being calculated on
the basis of the period from such reduction date to the quarterly payment
date. The facility fees and (to the extent applicable) utilization fees
shall continue to accrue notwithstanding that one or more conditions to
borrowing in ARTICLE V are not met.
2.12 COMPUTATION OF FEES AND INTEREST. (a) All computations of
interest for Base Rate Committed Loans when the Base Rate is determined by
Bank of America's "prime rate" shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day
year and actual days elapsed. Interest and fees shall accrue during each
period during which such interest or such fees are computed from the first
day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and
the Lenders in the absence of manifest error. The Administrative Agent
will, at the request of the Company or any Lender, deliver to the
Company or such Lender, as the case may be, a statement showing the
quotations used by the Administrative Agent in determining any interest
rate and the resulting interest rate.
2.13 PAYMENTS BY THE COMPANY. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except
as otherwise expressly provided herein, all payments by the Company shall
be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent's Payment Office, and shall be made in Dollars and in
immediately available funds, no later than 12:00 noon (Chicago time) on the
date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable
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share as expressly provided herein) of such payment in like funds as
received. Any payment received by the Administrative Agent later than 12:00
noon (Chicago time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day
(unless, in the case of an Offshore Rate Loan, the following Business
Day is in another calendar month, in which case such payment shall be
made on the preceding Business Day), and such extension of time shall in
such case be included in the computation of interest or fees, as the
case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that
the Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in
full to the Administrative Agent on such date in immediately available
funds and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Lender on such due date
an amount equal to the amount then due such Lender. If and to the extent
the Company has not made such payment in full to the Administrative Agent,
each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
2.14 PAYMENTS BY THE LENDERS TO THE ADMINISTRATIVE AGENT. (a) Unless
the Administrative Agent receives notice from a Lender on or prior to the
Closing Date or, with respect to any Committed Borrowing after the Closing
Date, at least one Business Day prior to the date of a Committed Borrowing
that such Lender will not make available as and when required hereunder to
the Administrative Agent for the account of the Company the amount of such
Lender's Pro Rata Share of such Committed Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent in immediately available funds on the Borrowing Date
and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Lender shall not have made
its full amount available to the Administrative Agent in immediately
available funds and the Administrative Agent in such circumstances has made
available to the Company such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate for
each day during such period. A notice of the Administrative Agent submitted
to any Lender with respect to amounts owing under this SUBSECTION (a) shall
be conclusive, absent manifest error. If such amount is so made available,
such payment to the Administrative Agent shall constitute such Lender's
Committed Loan on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Administrative Agent on
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the Business Day following the Borrowing Date, the Administrative Agent
will notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at
a rate per annum equal to the interest rate applicable at the time to the
Committed Loans comprising such Committed Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation
hereunder to make a Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on any Borrowing Date.
2.15 SHARING OF PAYMENTS, ETC. (a) Whenever any payment received by
the Administrative Agent to be distributed to the Lenders is insufficient
to pay in full the amounts then due and payable to the Lenders, and the
Administrative Agent has not received a Payment Sharing Notice, such
payment shall be distributed to the Lenders (and for purposes of this
Agreement shall be deemed to have been applied by the Lenders,
notwithstanding the fact that any Lender may have made a different
application in its books and records) in the following order: FIRST, to the
payment of reimbursement obligations of the Company in respect of any
Letter of Credit; SECOND, to the payment of the principal amount of the
Loans which is then due and payable, ratably among the Lenders in
accordance with the aggregate principal amount owed to each Lender; THIRD,
to the payment of interest then due and payable on the Loans and L/C
Obligations (including contingent obligations under outstanding Letters of
Credit), ratably among the Lenders in accordance with the aggregate amount
of interest owed to each Lender; FOURTH, to the payment of the facility
fees, letter of credit fees payable under SECTION 3.8 and utilization fees
payable under SUBSECTION 2.11(b), ratably among the Lenders in accordance
with the amount of such fees owed to each Lender; and FIFTH, to the payment
of any other amount payable under this Agreement, ratably among the Lenders
in accordance with the aggregate amount owed to each Lender.
(b) After the Administrative Agent has received a Payment
Sharing Notice, and for so long thereafter as any Event of Default
exists, all payments received by the Administrative Agent to be
distributed to the Lenders shall be distributed to the Lenders (and for
purposes of this Agreement shall be deemed to have been applied by the
Lenders, notwithstanding the fact that any Lender may have made a
different application in its books and records) in the following order:
FIRST, to the payment of amounts payable under SECTION 11.4, ratably
among the Lenders in accordance with the aggregate amount owed to each
Lender; SECOND, to the payment of facility fees and utilization fees
payable under SUBSECTION 2.11(b) and letter of credit fees payable under
Section 3.8, ratably among the Lenders in accordance with the amount of
such fees owed to each Lender; THIRD, to the payment of the interest
accrued on and the principal amount of all of the Loans and L/C
Obligations (including contingent obligations under outstanding Letters
of Credit), regardless of whether any such amount is then due and
payable, ratably among
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the Lenders in accordance with the aggregate accrued interest plus the
aggregate principal amount owed to each Lender; and FOURTH, to the payment
of any other amount payable under this Agreement, ratably among the Lenders
in accordance with the aggregate amount owed to each Lender.
(c) If, other than as expressly provided elsewhere herein,
any Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of principal of or interest on any Loan, or any other amount
payable hereunder, in excess of the share of payments and other recoveries
such Lender would have received if such payment or other recovery had been
distributed pursuant to the provisions of SUBSECTION 2.15(a) or (b)
(whichever is applicable at the time of such payment or other recovery),
such Lender shall immediately (i) notify the Administrative Agent of such
fact and (ii) purchase from the other Lenders such participations in the
Loans made by (or other Obligations owed to) them as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
pro rata with each of them in accordance with the order of payments set
forth in SUBSECTION 2.15(a) or (b), as the case may be; PROVIDED that if
all or any portion of such excess payment or other recovery is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (A) the amount of
such paying Lender's required repayment 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 Company agrees that any Lender so purchasing a participation
from another Lender may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off, but subject to
SECTION 11.10) with respect to such participation as fully as if such
Lender were the direct creditor of the Company in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders
following any such purchases or repayments.
(d) Any amount that would be applied to a contingent
obligation of the Company in respect of a Letter of Credit under CLAUSE
THIRD of SUBSECTION 2.15(b) shall be held by the Administrative Agent as
cash collateral hereunder. If such Letter of Credit is thereafter drawn
upon, the Administrative Agent shall pay the Issuing Lender an amount
equal to the lesser of the amount of such drawing and the amount of the
funds so held as cash collateral for such Letter of Credit. If and to
the extent that such Letter of Credit expires or terminates (or the
maximum amount available for drawing thereunder is reduced), the funds
so held as cash collateral for such Letter of Credit (or the portion
thereof in excess of the maximum amount available for drawing
thereunder) shall be applied by the Administrative Agent as set forth in
SUBSECTION 2.15(a) or 2.15(b), as applicable.
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2.16 OPTIONAL INCREASE IN AGGREGATE COMMITMENT. The Company may
at any time (but not more than once in any calendar year), by means of a
letter to the Administrative Agent substantially in the form of EXHIBIT
J, request that the Aggregate Commitment be increased by (a) increasing
the amount of the Commitment of one or more Lenders which have agreed to
such increase and/or (b) adding an Eligible Assignee as a party hereto
with a Commitment in an amount agreed to by such Eligible Assignee;
PROVIDED that (i) no Eligible Assignee shall be added as a party hereto
unless such Eligible Assignee shall have been approved in writing by the
Administrative Agent (which approval shall not be unreasonably withheld)
and (ii) in no event shall the Aggregate Commitment exceed $200,000,000
without the written consent of all Lenders, (iii) at the time of such
increase, and after giving effect thereto, no Event of Default or
Unmatured Event of Default shall exist and (iv) both before and after
giving effect to such increase, the Company shall be in pro forma
compliance with all financial covenants set forth in SECTION 8. Any
increase in the Aggregate Commitment pursuant to this SECTION 2.16 shall
become effective three Business Days after the date on which the
Administrative Agent has received and accepted the applicable increase
letter in the form of Annex 1 to EXHIBIT J (in the case of an increase
in the amount of the Commitment of an existing Lender) or assumption
letter in the form of Annex 2 to EXHIBIT J (in the case of the addition
of an Eligible Assignee as a new Lender) or on such other date as is
agreed among the Company, the Administrative Agent and the increasing or
new Lender. The Administrative Agent shall promptly notify the Company
and the Lenders of any increase in the amount of the Aggregate
Commitment pursuant to this SECTION 2.16 and of the amount of the
Commitment and Pro Rata Share of each Lender after giving effect
thereto. The Company acknowledges that a reallocation of the Commitments
as a result of a non-pro-rata increase in the Aggregate Commitment may
require prepayment of all or portions of certain Committed Loans on the
date of such increase (and any such prepayment shall be subject to the
provisions of SECTION 4.4).
2.17 EXTENSION OF TERMINATION DATE. (a) The Company may, at any time
after the first anniversary of the Effective Date (but not more than once
in any calendar year), request an extension of the Termination Date for
an additional year by submitting to the Administrative Agent an Extension
Request. The Administrative Agent shall promptly furnish a copy of any
Extension Request to each Lender. Each Lender shall, not more than 45 days
after its receipt of an Extension Request, notify the Company and the
Administrative Agent of its election to extend or not extend the
Termination Date as requested in such Extension Request (it being
understood that any Lender which fails to respond on a timely basis shall
be deemed to have rejected such Extension Request). If all Lenders approve
an Extension Request on a timely basis, then the Termination Date shall be
extended for an additional one year and the Administrative Agent shall
promptly notify the Company and the Lenders of such extension. If all
Lenders do not approve an Extension Request on a timely basis, the
Administrative Agent shall so notify the Company and the Lenders and the
provisions of SUBSECTION (b) shall apply.
(b) During the 60-day period following its receipt from the
Administrative Agent of notice that an Extension Request has not been
approved by all
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Lenders, the Company may, upon notice to the Administrative Agent and
any Lender which elected not to extend the Termination Date or failed to
respond to such Extension Request (any such Lender, an "OBJECTING
LENDER"), require such Objecting Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained
in SECTION 11.8), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment);
PROVIDED that (i) the Company shall have received the prior written
consent of the Administrative Agent to each such assignment and
delegation, which consent shall not be unreasonably withheld (and shall
not be required if the Objecting Lender is the Administrative Agent),
and (ii) such Objecting Lender shall have received payment of an amount
equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and
accrued interest and fees) and the Company (in the case of all other
amounts). If all Objecting Lenders are replaced as parties to this
Agreement during the 60-day period referenced above, then the
Termination Date shall be extended for an additional one year pursuant
to the relevant Extension Request and the Administrative Agent shall
promptly notify the Company and the Lenders of such extension. If all
Objecting Lenders are not so replaced, then no extension shall be made
pursuant to the relevant Extension Request.
(c) Notwithstanding anything to the contrary in this
Section 2.17, in no event may the Termination Date be extended more than
twice.
ARTICLE III
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY. (a) On the terms and
conditions set forth herein (i) the Issuing Lender agrees (A) from time
to time on any Business Day during the period from the Effective Date to
the date which is seven days prior to the scheduled Termination Date, to
issue Letters of Credit for the account of the Company, and to amend
Letters of Credit previously issued by it, in accordance with
SUBSECTIONS 3.2(c) and 3.2(d), and (B) to honor properly drawn drafts
under Letters of Credit; and (ii) the Lenders severally agree to
participate in Letters of Credit Issued for the account of the Company;
PROVIDED that the Issuing Lender shall not be obligated to Issue, and no
Lender shall be obligated to participate in, any Letter of Credit if as
of the date of Issuance of such Letter of Credit (the "ISSUANCE DATE")
(1) the Total Outstandings would exceed the Aggregate Commitment, (2)
the Effective Amount of all L/C Obligations would exceed the L/C
Commitment or (3) the participation of any Lender in the Effective
Amount of all L/C Obligations plus the outstanding principal amount of
the Committed Loans of such Lender would exceed such Lender's
Commitment. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Company's ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
which have expired or which have been drawn upon and
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reimbursed.
(b) The Issuing Lender shall not be under any obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from Issuing such Letter of Credit, or
any Requirement of Law applicable to the Issuing Lender or any
request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the Issuing
Lender shall prohibit, or request that the Issuing Lender refrain
from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Lender is not otherwise
compensated hereunder) not in effect on the Effective Date, or
shall impose upon the Issuing Lender any unreimbursed loss, cost or
expense which was not applicable on the Effective Date and which
the Issuing Lender in good faith deems material to it (it being
understood that the Issuing Lender shall promptly notify the
Company and the Administrative Agent of any of the foregoing events
or circumstances);
(ii) the Issuing Lender has received written notice
from any Lender, the Administrative Agent or the Company, on or
prior to the Business Day prior to the requested date of Issuance
of such Letter of Credit, that one or more of the applicable
conditions contained in SECTION 5.2 is not then satisfied;
(iii) the expiry date of such requested Letter of
Credit is (A) more than one year after the date of issuance thereof
or (B) after the date which is seven days prior to the scheduled
Termination Date, unless all of the Lenders have approved such
expiry date in writing; or
(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable to the
Issuing Lender, or the Issuance of such Letter of Credit shall
violate any applicable policies of the Issuing Lender;
(v) such Letter of Credit is denominated in a currency
other than Dollars.
3.2 ISSUANCE, AMENDMENT AND EXTENSION OF LETTERS OF CREDIT. (a)
Each Letter of Credit shall be issued upon the irrevocable written
request of the Company received by the Issuing Lender (with a copy sent
by the Company to the Administrative Agent) at least three Business Days
(or such shorter time as the Issuing Lender and the Administrative Agent
may agree in a particular instance in their sole discretion) prior to
the proposed date of issuance. Each such request for issuance of a
Letter of Credit shall be by facsimile, confirmed immediately (by
messenger or overnight courier) in an original writing, in the form of an
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L/C Application, and shall specify in form and detail satisfactory to
the Issuing Lender: (i) the face amount of the Letter of Credit; (ii)
the expiry date of the Letter of Credit; (iii) the name and address of
the beneficiary thereof; (iv) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(v) the full text of any certificate to be presented by the beneficiary
in case of any drawing thereunder; (vi) the proposed date of Issuance of
such Letter of Credit (which shall be a Business Day); and (vii) such
other matters as the Issuing Lender may reasonably require.
(b) Promptly upon receipt of any L/C Application or L/C
Amendment Application, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such L/C Application or L/C
Amendment Application from the Company and, if not, the Issuing Lender
will provide the Administrative Agent with a copy thereof. Unless the
Issuing Lender has received on or before the Business Day immediately
preceding the date the Issuing Lender is to issue a requested Letter of
Credit, (A) notice from the Administrative Agent directing the Issuing
Lender not to issue such Letter of Credit because such issuance is not
then permitted under SUBSECTION 3.1(a) as a result of the limitations
set forth in CLAUSES (1) through (3) thereof or (B) a notice described
in SUBSECTION 3.1(b)(ii), then, subject to the terms and conditions
hereof, the Issuing Lender shall, on the requested date, issue a Letter
of Credit for the account of the Company in accordance with the Issuing
Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the date which is seven days prior to the
scheduled Termination Date, the Issuing Lender will, upon the written
request of the Company received by the Issuing Lender (with a copy sent
by the Company to the Administrative Agent) at least three Business Days
(or such shorter time as the Issuing Lender and the Administrative Agent
may agree in a particular instance in their sole discretion) prior to
the proposed date of amendment, amend any Letter of Credit issued by it.
Each such request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately (by messenger or overnight courier) in
an original writing, made in the form of an L/C Amendment Application
and shall specify in form and detail satisfactory to the Issuing Lender:
(i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment; and (iv) such other matters
as the Issuing Lender may require. The Issuing Lender shall not have any
obligation to amend any Letter of Credit if: (A) the Issuing Lender
would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit. The Administrative Agent will
promptly notify the Lenders of any Issuance of a Letter of Credit.
(d) The Issuing Lender and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the date which is seven
days prior to the scheduled Termination Date, at the option of the
Company and upon the written request of the Company received by the
Issuing Lender (with a copy sent by the Company to the
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Administrative Agent) at least three Business Days (or such shorter time
as the Issuing Lender and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed date
of notification of extension, the Issuing Lender shall be entitled to
authorize the automatic extension of any Letter of Credit. Each such
request for extension of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail satisfactory
to the Issuing Lender: (i) the Letter of Credit to be extended; (ii) the
proposed date of notification of extension of such Letter of Credit
(which shall be a Business Day); (iii) the revised expiry date of such
Letter of Credit (which, unless all Lenders otherwise consent in
writing, shall be prior to the date which is seven days prior to the
scheduled Termination Date); and (iv) such other matters as the Issuing
Lender may reasonably require. The Issuing Lender shall not be under any
obligation to extend any Letter of Credit if: (A) the Issuing Lender
would have no obligation at such time to issue or amend such Letter of
Credit in its extended form under the terms of this Agreement; or (B)
the beneficiary of such Letter of Credit does not accept the proposed
extension of such Letter of Credit. If any outstanding Letter of Credit
shall provide that it shall be automatically extended unless the
beneficiary thereof receives notice from the Issuing Lender that such
Letter of Credit shall not be extended, and if at the time of extension
the Issuing Lender would be entitled to authorize the automatic
extension of such Letter of Credit in accordance with this SUBSECTION
3.2(d) upon the request of the Company but the Issuing Lender shall not
have received any L/C Amendment Application from the Company with
respect to such extension or other written direction by the Company with
respect thereto, the Issuing Lender shall nonetheless be permitted to
allow such Letter of Credit to be extended, and the Company and the
Lenders hereby authorize such extension, and, accordingly, the Issuing
Lender shall be deemed to have received an L/C Amendment Application
from the Company requesting such extension.
(e) The Issuing Lender may, at its election (or as
required by the Administrative Agent at the direction of the Required
Lenders), deliver any notice of termination or other communication to
any Letter of Credit beneficiary or transferee, and take any other
action as necessary or appropriate, at any time and from time to time,
in order to cause the expiry date of such Letter of Credit to be a date
not later than the date which is seven days prior to the scheduled
Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Lender will deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or extension of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of such Letter
of Credit or of such amendment or extension.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (a)
Immediately upon the Issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably
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and unconditionally agrees to, purchase from the Issuing Lender a
participation in such Letter of Credit and each drawing thereunder in an
amount equal to the product of (i) such Lender's Pro Rata Share times (ii)
the maximum amount available to be drawn under such Letter of Credit and
the amount of such drawing, respectively. For purposes of SECTION 2.1, each
Issuance of a Letter of Credit shall be deemed to utilize the Commitment of
each Lender by an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing
Lender will promptly notify the Company and the Administrative Agent.
The Company shall (subject, if applicable, to its right to obtain Base
Rate Committed Loans as provided below) reimburse the Issuing Lender
prior to 10:00 a.m. Chicago time on each date that any amount is paid by
the Issuing Lender under any Letter of Credit (each such date, an "HONOR
DATE") in an amount equal to the amount so paid by the Issuing Lender.
If the Company fails to reimburse the Issuing Lender for the full amount
of any drawing under any Letter of Credit by 10:00 a.m. Chicago time on
the Honor Date, the Issuing Lender will promptly notify the
Administrative Agent and the Administrative Agent will promptly notify
each Lender thereof, and the Company shall be deemed to have requested
that Base Rate Committed Loans be made by the Lenders to be disbursed on
the Honor Date under such Letter of Credit, subject to the amount of the
unutilized portion of the Aggregate Commitment and subject to the
conditions set forth in SECTION 5.2 other than SECTION 5.2(a). Any
notice given by the Issuing Lender or the Administrative Agent pursuant
to this SUBSECTION 3.3(b) may be oral if immediately confirmed in
writing (including by facsimile); PROVIDED that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Lender shall upon any notice pursuant to SUBSECTION
3.3(b) make available to the Administrative Agent for the account of the
Issuing Lender an amount in Dollars and in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the
Lenders shall (subject to SUBSECTION 3.3(e)) each be deemed to have made a
Committed Loan consisting of a Base Rate Committed Loan to the Company in
such amount. If any Lender so notified fails to make available to the
Administrative Agent for the account of the Issuing Lender the amount of
such Lender's Pro Rata Share of the amount of such drawing by no later than
1:00 p.m. Chicago time on the Honor Date, then interest shall accrue on
such Lender's obligation to make such payment, from the Honor Date to the
date such Lender makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the
Honor Date, but failure of the Administrative Agent to give any such notice
on the Honor Date or in sufficient time to enable any Lender to effect such
payment on such date shall not relieve such Lender from its obligations
under this SECTION 3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Base Rate Committed Loans in whole or in part, because of
the Company's failure to satisfy the conditions set forth in SECTION 5.2
(other than SUBSECTION 5.2(a), which need not be
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satisfied) or for any other reason, the Company shall be deemed to have
incurred from the Issuing Lender an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand and shall
bear interest (payable on demand) at a rate per annum equal to the Base
Rate plus 2%, and each Lender's payment to the Issuing Lender pursuant to
SUBSECTION 3.3(c) shall be deemed payment in respect of its participation
in such L/C Borrowing and shall constitute an L/C Advance from such Lender
in satisfaction of its participation obligation under this SECTION 3.3.
(e) Each Lender's obligation in accordance with this
Agreement to make the Committed Loans or L/C Advances, as contemplated
by this SECTION 3.3, as a result of a drawing under a Letter of Credit,
shall be absolute and unconditional and without recourse to the Issuing
Lender and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Issuing Lender, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of
an Event of Default, an Unmatured Event of Default or a Material Adverse
Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; PROVIDED that each
Lender's obligation to make Committed Loans under this SECTION 3.3 is
subject to the conditions set forth in SECTION 5.2 (other than
SUBSECTION 5.2(a)).
3.4 REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt
by the Administrative Agent for the account of the Issuing Lender of
immediately available funds from the Company (i) in reimbursement of any
payment made by the Issuing Lender under a Letter of Credit with respect to
which any Lender has paid the Administrative Agent for the account of the
Issuing Lender for such Lender's participation in such Letter of Credit
pursuant to SECTION 3.3 or (ii) in payment of interest thereon, the
Administrative Agent will pay to each Lender, in the same funds as those
received by the Administrative Agent for the account of the Issuing Lender,
the amount of such Lender's Pro Rata Share of such funds, and the Issuing
Lender shall receive the amount of the Pro Rata Share of such funds of any
Lender that did not so pay the Administrative Agent for the account of the
Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is
required at any time to return to the Company, or to a trustee,
receiver, liquidator or custodian, or to any official in any Insolvency
Proceeding, any portion of any payment made by the Company to the
Administrative Agent for the account of the Issuing Lender pursuant to
SUBSECTION 3.4(a) in reimbursement of a payment made under a Letter of
Credit or interest or fee thereon, each Lender shall, on demand of the
Administrative Agent, forthwith return to the Administrative Agent or
the Issuing Lender the amount of its Pro Rata Share of any amount so
returned by the Administrative Agent or the Issuing Lender plus interest
thereon from the date such demand is made to the date such amount is
returned by Lender to the Administrative Agent or the Issuing Lender, at
a rate per annum equal to the Federal Funds Rate in effect from time to
time.
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3.5 ROLE OF THE ISSUING LENDER. (a) Each Lender and the Company
agree that, in paying any drawing under a Letter of Credit, the Issuing
Lender shall not have any responsibility to obtain any document (other
than any sight draft and certificate expressly required by such Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering
any such document.
(b) Neither the Issuing Lender nor any Agent-Related
Person, nor any of their respective correspondents, participants or
assignees, shall be liable to any Lender for: (i) any action taken or
omitted in connection herewith at the request or with the approval of
the Lenders (including the Required Lenders, as applicable); (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; PROVIDED that this assumption is not intended to,
and shall not, preclude the Company's pursuing such rights and remedies
as it may have against the beneficiary or transferee at law or under any
other agreement. Neither the Issuing Lender nor any Agent-Related
Person, nor any of their respective correspondents, participants or
assignees, shall be liable or responsible for any of the matters
described in CLAUSES (i) through (vii) of SECTION 3.6; PROVIDED that,
anything in such clauses to the contrary notwithstanding, the Company
may have a claim against the Issuing Lender, and the Issuing Lender may
be liable to the Company, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by
the Company which the Company proves were caused by the Issuing Lender's
willful misconduct or gross negligence or the Issuing Lender's willful
failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the Issuing
Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Issuing Lender shall
not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
3.6 OBLIGATIONS ABSOLUTE. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for
a drawing under a Letter of Credit, and to repay any L/C Borrowing and any
drawing under a Letter of Credit converted into Committed Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any
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L/C-Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Company may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated
hereby or by any L/C-Related Document or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(v) any payment by the Issuing Lender under any Letter
of Credit against presentation of a draft or certificate that does
not strictly comply with the terms of such Letter of Credit; or any
payment made by the Issuing Lender under any Letter of Credit to
any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including
any arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Company or a guarantor.
3.7 CASH COLLATERAL PLEDGE. If any Letter of Credit remains
outstanding and partially or wholly undrawn as of the Termination Date,
then the Company shall immediately Cash Collateralize the L/C Obligations
in an amount equal to the maximum amount then available to be drawn under
all Letters of Credit.
3.8 LETTER OF CREDIT FEES. (a) The Company shall pay to the
Administrative Agent
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for the account of each Lender a letter of credit fee with respect to each
Letter of Credit equal to the L/C Fee Rate per annum of the average daily
maximum amount available to be drawn on such Letter of Credit, computed on
a quarterly basis in arrears on the last Business Day of each calendar
quarter and on the Termination Date (or such later date on which such
Letter of Credit shall expire or be fully drawn).
(b) The letter of credit fees payable under SUBSECTION 3.8(a)
shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the Closing
Date, through the Termination Date (or such later date upon which all
outstanding Letters of Credit shall expire or be fully drawn), with the
final payment to be made on the Termination Date (or such later date).
(c) The Company shall pay to the Issuing Lender a letter of
credit fronting fee at such times and in such amounts as are mutually
agreed to from time to time by the Company and the Issuing Lender.
(d) The Company shall pay to the Issuing Lender from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Issuing
Lender relating to letters of credit as from time to time in effect.
3.9 INTERNATIONAL STANDBY PRACTICES. The International Standby
Practices as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless
otherwise expressly provided in such Letter of Credit) apply to such Letter
of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES. (a) Any and all payments by the Company to each
Lender and each Agent hereunder or under any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any
Taxes. In addition, the Company shall pay all Other Taxes. Each Lender
represents and warrants to the Company and the Administrative Agent that
under applicable law and treaties as in effect on the date of this
Agreement, no Taxes, Other Taxes or Further Taxes are required to be
deducted or withheld by the Company or the Administrative Agent with
respect to any payments to be made to such Lender hereunder or under any
other Loan Document.
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Lender or any Agent, then:
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(i) the Company shall make such deductions and
withholdings;
(ii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iii) the Company shall also pay to the Administrative
Agent for the account of any applicable Lender or Agent, at the time
interest is paid, all additional amounts which such Lender or such
Agent reasonably determines as necessary to preserve the after-tax
yield such Lender or Agent would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(c) The Company agrees to indemnify and hold harmless each
Lender and each Agent for the full amount of Taxes, Other Taxes and
Further Taxes in the amount that such Lender or such Agent reasonably
determines as necessary to preserve the after-tax yield such Lender
would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were
correctly or legally asserted. Payment under this indemnification shall
be made within 30 days after the date such Lender or such Agent makes
written demand therefor.
(d) Within 30 days after the date of any payment by the
Company of Taxes, Other Taxes or Further Taxes, the Company shall
furnish to each Lender and the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to such Lender or the Administrative
Agent.
(e) If the Company is required to pay any amount to any
Lender or any Agent pursuant to SUBSECTION (b) or (c) of this Section,
then such Lender or such Agent shall use reasonable efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of
its Lending Office or other relevant office so as to eliminate any such
additional payment by the Company which may thereafter accrue, if such
change in the sole judgment of such Lender or such Agent is not
otherwise disadvantageous to such Lender or such Agent.
(f) Notwithstanding the foregoing provisions of this
SECTION 4.1, if any Lender fails to notify the Company of any event or
circumstance which will entitle such Lender to compensation pursuant to
this SECTION 4.1 within 120 days after such Lender obtains knowledge of
such event or circumstance, then such Lender shall not be entitled to
compensation from the Company for any amount arising prior to the date
which is 120 days before the date on which such Lender notifies the
Company of such event or circumstance.
(g) If any Lender determines in good faith that any
deduction, withholding or payment pursuant to the foregoing provisions
of this SECTION 4.1 in respect
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of Taxes, Other Taxes or Further Taxes can be used by such Lender (in a
manner consistent with its overall tax policies) to reduce its otherwise
payable tax liabilities, then such Lender shall promptly pay to the Company
an amount equal to such reduction.
4.2 ILLEGALITY. (a) If any Lender determines that the
introduction of any Requirement of Law, or any change in any Requirement
of Law, or in the interpretation or administration of any Requirement of
Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable Lending Office to make Offshore Rate Loans, then, on
notice thereof by the Lender to the Company through the Administrative
Agent, any obligation of such Lender to make Offshore Rate Loans
(including in respect of any LIBOR Bid Loan as to which the Company has
accepted such Lender's Competitive Bid, but which has not yet been
borrowed) shall be suspended until the Lender notifies the
Administrative Agent and the Company that the circumstances giving rise
to such determination no longer exist.
(b) If a Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending
Office to maintain any Offshore Rate Loan, the Company shall, upon its
receipt of notice of such fact and demand from such Lender (with a copy to
the Administrative Agent), prepay in full such Offshore Rate Loan of such
Lender then outstanding, together with interest accrued thereon and any
amount required under SUBSECTION 4.4(d), either on the last day of the
Interest Period thereof or, if earlier, on the date on which such Lender
may no longer lawfully continue to maintain such Offshore Rate Loan. If the
Company is required to so prepay any Offshore Rate Committed Loan, then
concurrently with such prepayment, the Company shall borrow from the
affected Lender, in the amount of such repayment, a Base Rate Committed
Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Committed Loans has been so terminated or suspended, all
Loans which would otherwise be made by such Lender as Offshore Rate
Committed Loans shall be instead Base Rate Committed Loans.
(d) Before giving any notice to the Administrative Agent
or demand upon the Company under this Section, the affected Lender shall
designate a different Lending Office with respect to its Offshore Rate
Loans if such designation will avoid the need for giving such notice or
making such demand and will not, in the judgment of the Lender, be
illegal or otherwise disadvantageous to the Lender.
4.3 INCREASED COSTS AND REDUCTION OF RETURN. (a) If after the date
hereof any Lender reasonably determines that, due to either (i) the
introduction of or any change (other than any change by way of imposition
of or increase in reserve requirements included in the
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calculation of the Offshore Rate pursuant to SUBSECTION 2.10(c)) in or in
the interpretation of any law or regulation or (ii) the compliance by that
Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Offshore Rate Loan or participating in
any Letter of Credit, or, in the case of the Issuing Lender, any increase
in the cost to the Issuing lender of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding
or maintaining any unpaid drawing under any Letter of Credit, then the
Company shall be liable for, and shall from time to time, upon demand (with
a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as
are sufficient to compensate such Lender for such increased costs.
(b) If after the date hereof any Lender shall have reasonably
determined that (i) the introduction of any Capital Adequacy Regulation,
(ii) any change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Lender
(or its Lending Office) or any corporation controlling the Lender with any
Capital Adequacy Regulation affects or would affect the amount of capital
required or expected to be maintained by the Lender or any corporation
controlling the Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) and such Lender
reasonably determines that the amount of such capital is increased as a
consequence of its Commitment, Loans, credits or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Administrative Agent, the Company shall pay to the Lender, from time to
time as specified by the Lender, additional amounts sufficient to
compensate the Lender for such increase.
(c) Notwithstanding the foregoing provisions of this
SECTION 4.3, if any Lender fails to notify the Company of any event or
circumstance which will entitle such Lender to compensation pursuant to
this SECTION 4.3 within 60 days after such Lender obtains knowledge of
such event or circumstances, then such Lender shall not be entitled to
compensation from the Company for any amount arising prior to the date
which is 60 days before the date on which such Lender notifies the
Company of such event or circumstance.
4.4 FUNDING LOSSES. The Company shall reimburse each Lender and
hold each Lender harmless from any reasonable loss or expense which the
Lender may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given)
a Notice of Committed Borrowing, a
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Notice of Conversion/ Continuation or accepted a Competitive Bid;
(c) the failure of the Company to make any prepayment of a
Committed Loan in accordance with any notice delivered under SECTION 2.8;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan on a day that is not the
last day of the relevant Interest Period; or
(e) the automatic conversion under SUBSECTION 2.4(a) of any
Offshore Rate Committed Loan to a Base Rate Committed Loan on a day that is
not the last day of the relevant Interest Period;
including any such reasonable loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its Offshore Rate Loans
or from fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Company to the
Lenders under this Section and under SUBSECTION 4.3(a), each Offshore Rate
Loan made by a Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the
Offshore Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Offshore Rate Loan is in fact
so funded.
4.5 INABILITY TO DETERMINE RATES. If (a) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist
for determining the Offshore Rate for any requested Interest Period with
respect to a proposed Offshore Rate Loan, or (b) the Required Lenders
reasonably determine that the Offshore Rate applicable pursuant to
SUBSECTION 2.10(a) for any requested Interest Period with respect to a
proposed Offshore Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, the obligation
of the Lenders to make LIBOR Bid Loans (in the case of CLAUSE (a) only) or
to make or maintain Offshore Rate Committed Loans shall be suspended until
the Administrative Agent revokes such notice in writing (at the request or
with the consent of the Required Lenders in the case of a notice pursuant
to CLAUSE (b)). Upon receipt of such notice, the Company may revoke any
Notice of Committed Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Lenders
shall make, convert or continue the Committed Loans, as proposed by the
Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate
Committed Loans instead of Offshore Rate Committed Loans.
4.6 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this ARTICLE IV shall deliver to the Company (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the amount payable to the Lender hereunder and such certificate
shall be conclusive and binding on the Company
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in the absence of manifest error.
4.7 SUBSTITUTION OF LENDERS. Upon the receipt by the Company
from any Lender (an "AFFECTED LENDER") of a claim for compensation under
SECTION 4.1 or 4.3 or a notice of the type described in SUBSECTION
4.2(a) or 4.2(b) , the Company may: (i) request the Affected Lender to
use its best efforts to obtain a replacement bank or financial
institution satisfactory to the Company to acquire and assume all or a
ratable part of all of such Affected Lender's Loans and Commitment (a
"REPLACEMENT LENDER"); (ii) request one or more of the other Lenders to
acquire and assume all or part of such Affected Lender's Loans and
Commitment; or (iii) designate a Replacement Lender. Any such
designation of a Replacement Lender under CLAUSE (i) or (iii) shall be
subject to the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld).
4.8 SURVIVAL. The agreements and obligations of the Company in this
ARTICLE IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension, (whether in the form of a Loan
or a Letter of Credit), is, in addition to the conditions precedent set
forth in SECTION 5.2, subject to the conditions that (i) the Company shall
have paid (or shall concurrently pay) all outstanding obligations of the
Company under the Credit Agreement dated as of March 22, 1996 (the
"EXISTING AGREEMENT") with various financial institutions and Bank of
America (then known as Bank of America National Trust and Savings
Association), as administrative agent, and (ii) the Administrative Agent
shall have received all of the following, in form and substance
satisfactory to the Administrative Agent and each Lender, and (except for
the Notes) in sufficient copies for each Lender:
(a) CREDIT AGREEMENT AND NOTES. This Agreement executed by
each party hereto and the Notes executed by the Company.
(b) RESOLUTIONS; INCUMBENCY.
(i) Copies of the resolutions of the board of directors
of the Company authorizing the execution and delivery of the Loan
Documents and the consummation of the transactions contemplated
hereby, certified as of the Closing Date by the Secretary or an
Assistant Secretary of the Company; and
(ii) a certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of
the officers of the Company
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authorized to execute and deliver the Loan Documents and all other
documents to be delivered by the Company hereunder.
(c) GOOD STANDING. A copy of a good standing certificate
as of a recent date for the Company from the Secretary of State of
Delaware.
(d) LEGAL OPINIONS. (i) An opinion of Frank W. Bonvino, Vice
President and General Counsel of the Company, substantially in the form of
EXHIBIT G; and (ii) an opinion of Mayer, Brown & Platt, special counsel to
the Administrative Agent, substantially in the form of EXHIBIT H.
(e) PAYMENT OF FEES. Evidence of payment by the Company of
all accrued and unpaid fees, costs and expenses to the extent due and
payable on the Closing Date, together with Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of Attorney Costs as shall constitute
the Administrative Agent's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final
settling of accounts between the Company and the Administrative Agent),
including any such costs, fees and expenses arising under or referenced
in SECTIONS 2.11 and 11.4.
(f) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
ARTICLE VI are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default
exists or would result from a Borrowing on such date; and
(iii) since February 29, 2000, no event or circumstance
has occurred that has resulted or could reasonably be expected to
result in a Material Adverse Effect (except as described in the
Form 10-K filed by the Company with the SEC for the fiscal year ended
on such date or in any Form 10-Q or 8-K filed by the Company with the
SEC after such date and prior to the Effective Date).
(g) OTHER DOCUMENTS. Such other approvals, opinions,
documents or materials as the Administrative Agent or any Lender may
reasonably request.
5.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to make any Loan to be made by it and the obligation of the
Issuing Lender to Issue any Letter of Credit is subject to the
satisfaction of the following conditions precedent on the relevant
Borrowing Date or Issuance Date, as applicable:
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(a) NOTICE, APPLICATION. In the case of any Committed
Loan, the Administrative Agent shall have received a Notice of Committed
Borrowing and, in the case of the Issuance of any Letter of Credit, the
Issuing Lender and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application as required under SECTION 3.2.
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in ARTICLE VI (excluding the representations
and warranties contained in SECTIONS 6.3, 6.4 and 6.11) shall be true and
correct on and as of such Borrowing Date with the same effect as if made on
and as of such Borrowing Date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall
be true and correct as of such earlier date).
(c) NO EXISTING DEFAULT. No Event of Default or Unmatured
Event of Default shall exist or shall result from such Borrowing.
Each Notice of Committed Borrowing, Invitation for Competitive Bids, L/C
Application and L/C Amendment Application submitted by the Company
hereunder shall constitute a representation and warranty by the Company
that, as of the date of such notice or request and as of the applicable
Borrowing Date, the conditions in this SECTION 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agents and each Lender
that:
6.1 ORGANIZATION AND EXISTENCE. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware. In all respects material to the
Company and its Subsidiaries taken as a whole, the Company has all
requisite power and authority, corporate and otherwise, to own, operate
and lease its properties and to carry on its business as now being
conducted. The Company is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
character of its properties owned or leased or the nature of the
activities conducted by the Company makes such qualification necessary
and where failure so to qualify could have a Material Adverse Effect.
6.2 POWER AND AUTHORITY; AUTHORIZATION; VALIDITY. (a) The Company
has all power and authority necessary to execute, deliver and
perform the terms and provisions of the Loan Documents. All action
on the part of the Company which is required for the execution,
delivery and performance of the Loan Documents has been duly taken.
(b) This Agreement and each other Loan Document constitute
the valid
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and binding obligation of the Company enforceable in accordance with its
terms, in each case as enforceability may be subject to bankruptcy,
reorganization, insolvency, moratorium or other similar laws and court
decisions relating to or affecting the enforcement of creditors' rights
generally and as enforceability may be subject to limitations imposed by
law upon the availability of specific enforcement, injunctive relief or
other equitable remedies.
6.3 FINANCIAL POSITION. The Company has delivered to the Lenders
the consolidated balance sheet of the Company and its Subsidiaries as of
February 29, 2000, accompanied by related consolidated statements of
operations, cash flows and shareholders' equity, for the fiscal year ended
on such date and the related report of the Company's auditors, KPMG LLP.
Such financial statements, with the notes thereto, present fairly the
consolidated financial position of the Company and its Subsidiaries and the
results of their operations and cash flows as of the date and for the
period indicated, and were prepared in accordance with generally accepted
accounting principles. Since February 29, 2000 to the date of this
Agreement, no event has occurred which has had or is reasonably likely to
have a Material Adverse Effect (except as described in the Form 10-K filed
by the Company with the SEC for the fiscal year ended on such date or in
any Form 10-Q or 8-K filed by the Company with the SEC after such date and
prior to the Effective Date).
6.4 LITIGATION. Except as disclosed in the notes to the Company's
financial statements referred to in SECTION 6.3 or as described in the Form
10-K filed by the Company with the SEC for the fiscal year ended February
29, 2000 or in any 10-Q or 8-K filed by the Company with the SEC after such
date and prior to the Effective Date, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company
or any of its Subsidiaries or against any of its or their respective
properties or revenues which would reasonably be expected to have a
Material Adverse Effect.
6.5 NO VIOLATION OF LAW OR INSTRUMENT. The execution, delivery and
performance of this Agreement and the other Loan Documents do not and,
after giving effect to each borrowing hereunder, the borrowings then
outstanding hereunder at the time of such borrowing will not, require any
action or consent of, or any registration with, any Governmental Authority,
or of any other party under any material contract or agreement to which the
Company or any of its Subsidiaries is a party, or under any order or decree
to which the Company or any of its Subsidiaries is a party or to which any
of their properties or assets are subject, or conflict with, or entitle any
party, with the giving of notice or lapse of time or otherwise, to
terminate or declare a default under, any such contract, agreement, order
or decree.
6.6 FEDERAL RESERVE REGULATIONS. (a) The Company is not and will
not be engaged principally in the business of extending credit for the
purpose of "purchasing" or "carrying" (within the meaning of Regulation U
or X of the FRB) any margin stock (as defined in Regulation U or X of
the FRB).
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(b) No part of the proceeds of the Loans will be used for any
purpose that violates, or which is inconsistent with, the provisions of
Regulation U or X of the FRB.
6.7 NO DEFAULT. No Event of Default or Unmatured Event of Default
has occurred and remains in existence.
6.8 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or
state law. The Company and each ERISA Affiliate has made all required
contributions to any Pension Plan, and no application for a funding
waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Pension Plan.
(b) There is no pending or, to the best knowledge of the
Company, threatened claim, action or lawsuit, or action by any
Governmental Authority, with respect to any Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with
respect to any Pension Plan which has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(c) Neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan or Multiemployer Plan (other
than premiums due and not delinquent under Section 4007 of ERISA).
6.9 ENVIRONMENTAL MATTERS. The Company is not in violation of any
applicable Environmental Laws, except for any such violations which,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect. No Environmental Claims have
been made against the Company or any of its Subsidiaries which,
individually or in the aggregate, have had or would reasonably be expected
to have a Material Adverse Effect.
6.10 REGULATED ENTITIES. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the
meaning of the Investment Company Act of 1940. The Company is not subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or any state public utilities code.
6.11 SUBSIDIARIES. As of the Closing Date, the Company has no
Restricted Subsidiaries other than those specifically disclosed in SCHEDULE
6.11.
6.12 FULL DISCLOSURE. None of the representations or warranties made
by the Company in this Agreement as of the date such representations and
warranties are made or
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deemed made, and none of the statements contained in any exhibit, report,
statement or certificate furnished by or on behalf of the Company in
connection with this Agreement (including the offering and disclosure
materials delivered by or on behalf of the Company to the Lenders prior to
the Effective Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they
are made, not misleading as of the time when made or deemed made.
6.13 USE OF PROCEEDS. The proceeds of the Loans will be used by the
Company for general corporate purposes, including, without limitation,
stock repurchases and acquisitions, and the Commitments will be used as
support for commercial paper issued by the Company.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Required Lenders waive
compliance in writing:
7.1 CORPORATE EXISTENCE. The Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) of the Company.
7.2 PAYMENT OF TAXES AND CLAIMS. The Company and its
Subsidiaries will pay or discharge or cause to be paid or discharged, or
make adequate provision for, before the same shall become delinquent,
(a) all taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, the Company and its Subsidiaries shall not be required to so
pay or discharge or cause to be paid or discharged, or make adequate
provision for, any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings, or if such failure would not be disadvantageous
in any material respect to the Company and its Subsidiaries taken as a
whole.
7.3 FINANCIAL STATEMENTS. (a) The Company will furnish to the
Administrative Agent and each Lender: (i) within 95 days after the end of
each fiscal year, a consolidated balance sheet of the Company and its
Subsidiaries as at the close of such fiscal year and consolidated
statements of operations, cash flows and shareholders' equity of the
Company and its Subsidiaries for such year, certified by independent public
accountants of national
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standing selected by the Company, (ii) within 15 days after the date of
their filing, copies of all reports on Forms 8-K, 10-Q and 10-K (or any
substantially equivalent reports at any time prescribed by applicable
regulations) filed by the Company with the SEC and (iii) promptly following
any request therefor, such other financial data (excluding projections
unless the then-current Rating Level is Level VI) as any Lender may
reasonably request from time to time.
(b) The Company will furnish to the Administrative Agent
and each Lender as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year, the unaudited consolidated condensed balance sheet of the
Company and its Subsidiaries as at the end of such quarterly period and
the related unaudited consolidated condensed statements of operations
and cash flows of the Company and its Subsidiaries for such quarterly
period (except that the statement of cash flows shall be on a
year-to-date basis) and the portion of the fiscal year through such
date, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer (subject to normal
year-end audit adjustments) in accordance with GAAP (it being understood
that delivery of a report on Form 10-Q filed by the Company with the SEC
for the relevant quarter shall satisfy the requirements of this CLAUSE
(b)).
(c) All financial statements delivered hereunder shall be
prepared in accordance with GAAP.
7.4 COMPLIANCE CERTIFICATE. The Company will deliver to the
Administrative Agent and each Lender, at the time of the delivery of each
set of financial statements furnished pursuant to SUBSECTION 7.3(a) or (b),
a Compliance Certificate signed by a Responsible Officer.
7.5 NOTICE OF DEFAULT. Promptly after the occurrence of an Event of
Default or Unmatured Event of Default shall have become known to the
Company, the Company shall notify the Administrative Agent and each Lender
of such event and, within 15 Business Days, provide a statement by a
Responsible Officer setting forth the actions being taken by the Company to
remedy such event.
7.6 COMPLIANCE WITH LAWS. The Company will, and will cause each
of its Subsidiaries to, comply with all Requirements of Law except to
the extent that failure to comply therewith could not reasonably be
expected to, individually or in the aggregate, have a Material Adverse
Effect.
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The
Company will, and will cause each of its Subsidiaries to, keep proper books
of records and account in which true and correct entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and, after the
occurrence and during the continuance of an Event of Default, permit
representatives of the Administrative Agent and any Lender to visit and
inspect any of its properties and examine
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any of its books and records at any reasonable time, upon reasonable notice
and as often as may reasonably be desired, and to discuss the business,
operations, properties and financial and other condition of the Company and
its Subsidiaries with officers of the Company and its Subsidiaries and with
their independent certified public accountants. All information obtained by
the Agents and the Lenders and their representatives pursuant to this
SECTION 7.7 shall be subject to and governed by the confidentiality
provisions contained in SECTION 11.9.
7.8 MAINTENANCE OF PROPERTY. The Company will, and will cause each
of its Subsidiaries to, keep all property, plant and equipment useful and
necessary in its business in good working order and condition (ordinary
wear and tear excepted), except to the extent that failure to so keep such
property, plant and equipment in such good working order and condition
could not reasonably be expected to, individually or in the aggregate, have
a Material Adverse Effect.
7.9 INSURANCE. The Company will, and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable independent
insurers, insurance of such types and in such amounts (and with such
deductibles and self-insured retentions) as is customarily maintained by
Persons engaged in the same or similar business.
7.10 COMPLIANCE WITH ERISA. The Company shall, and shall cause each
of its ERISA Affiliates to, maintain each Pension Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and
other federal or state law.
7.11 ENVIRONMENTAL LAWS. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, except to the extent that failure
to so conduct such operations and keep and maintain such property could not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect.
7.12 NOTICE OF RATINGS CHANGE. The Company will promptly notify the
Administrative Agent (which shall promptly notify each Lender) after any
change in the rating of the Company's senior, unsecured non-credit-enhanced
long term debt by Moody's or S&P.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Required Lenders waive
compliance in writing:
8.1 FINANCIAL CONDITION COVENANTS.
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(a) TOTAL INDEBTEDNESS TO TOTAL CAPITALIZATION. The
Company will not permit the ratio of Total Indebtedness to Total
Capitalization at any time to be greater than .60 to 1.0.
(b) MAINTENANCE OF FIXED CHARGE COVERAGE. The Company will
not permit, as of the last day of any fiscal quarter, the Fixed Charge
Coverage for the period of four consecutive fiscal quarters ending on
such last day to be less than 1.5.
8.2 LIMITATION ON LIENS. (a) The Company will not, and will not
permit any Restricted Subsidiary to, issue, assume or guaranty any
obligation secured by any Lien upon any Operating Property of the Company
or of a Restricted Subsidiary or upon any shares of stock or indebtedness
of any Restricted Subsidiary (whether such Operating Property, shares of
stock or indebtedness is now owned or hereafter acquired) or upon any of
its or their property, assets or revenues without in any such case
effectively securing the Obligations, concurrently with the issuance,
assumption or guaranty of any such obligation (together with, if the
Company shall so determine, any other indebtedness of or guarantied by
the Company or such Restricted Subsidiary ranking equally with or prior
to the Obligations and then existing or thereafter created) equally and
ratably with such obligation; PROVIDED that the foregoing restrictions
shall not apply to:
(i) Liens on any property acquired, constructed or improved by
the Company or any Restricted Subsidiary after August 26, 2000 which
are created or assumed contemporaneously with, or within 180 days
after, such acquisition, or completion of such construction or
improvement, or within six months thereafter pursuant to a firm
commitment for financing arranged with a lender or investor within
such 180-day period, to secure or provide for the payment of all or
any part of the purchase price of such property or the cost of such
construction or improvement incurred after August 26, 2000, PROVIDED
that such Lien shall not apply to any property theretofore owned by
the Company or any Restricted Subsidiary other than, in the case of
any such construction or improvement, any theretofore unimproved real
property on which the property so constructed, or the improvement, is
located;
(ii) Liens on any property existing at the time of acquisition
thereof (including acquisition through merger or consolidation) and
Liens on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary, PROVIDED that each such
Lien shall at all times be confined solely to the property subject to
such Lien immediately prior to such acquisition or such corporation
becoming a Restricted Subsidiary and shall not have been incurred at
the request of or, if required, with the consent of the Company in
contemplation of such event;
(iii) Liens to secure obligations of a Restricted Subsidiary to
the Company or to another Restricted Subsidiary;
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(iv) Liens in favor of the United States or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States or any State thereof, to secure
partial progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the
cost of constructing or improving the property subject to such
Liens; and
(v) Liens for the sole purpose of extending, renewing or
replacing in whole or in part obligations secured by any Lien referred
to in the foregoing CLAUSES (i) to (iv), inclusive, or in this CLAUSE
(v) or any Lien existing on the date of this Agreement, PROVIDED,
HOWEVER, that the principal amount of the obligations secured thereby
shall not exceed the obligations so secured at the time of such
extension, renewal or replacement and that the property securing such
extension, renewal or replacement shall be limited to all or part of
the property which secured the obligations so extended, renewed or
replaced (plus improvements on such property).
(b) The provisions of SUBSECTION 8.2(a) shall not apply to:
(i) the issuance, assumption or guaranty by the
Company or any Restricted Subsidiary of obligations secured by a
Lien which would otherwise be subject to the foregoing restrictions
up to an aggregate amount which, together with all other
obligations of the Company and its Restricted Subsidiaries secured
by Liens (other than Liens existing on August 26, 2000 and Liens
permitted by SUBSECTION 8.2(a)) which would otherwise be subject to
the foregoing restrictions, does not at the time exceed $30,000,000;
(ii) any Lien arising pursuant to any order of
attachment, execution, distraint or similar legal process arising
in connection with any court proceeding being contested or appealed
in good faith by appropriate proceedings, PROVIDED such Lien is
released or dismissed or the judicial order relating thereto is
revoked or stayed within a period of 60 days from the date of the
creation thereof;
(iii) Liens for taxes not yet due and payable or which
are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books
of the Company or its Subsidiaries, as the case may be, in
accordance with GAAP;
(iv) carriers', warehousemen's, mechanics',
material-men's, repairmen's or other like Liens arising in the
ordinary course of business for obligations which are not overdue
for a period of more than 30 days or which are being contested in
good faith and by appropriate proceedings;
(v) pledges or deposits in connection with workers'
compensation,
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unemployment insurance and other social security legislation;
(vi) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(vii) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of
the business of the Company or its Subsidiaries; and
(viii) inchoate Liens arising under ERISA to secure the
contingent liability of the Company or other Liens arising out of
trusts or otherwise designed to assist the Company in fulfilling the
obligations of the Company under non-qualified employee benefit plans
of the Company.
8.3 CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company will not
consolidate or merge with or into any other corporation or sell or transfer
all or substantially all of its property and assets (considered on a
consolidated basis) to any other Person, except for any such merger or
consolidation after giving effect to which (a) no Event of Default or
Unmatured Event of Default exists and (b) the Company or, in the case of
any transaction not involving the Company, a Subsidiary of the Company is
the surviving entity.
8.4 USE OF PROCEEDS. The Company shall not, and shall not permit
any Subsidiary to, use any portion of the proceeds of any Loan or any
Letter of Credit, directly or indirectly, (a) to engage in any
transaction having as its purpose the Acquisition of any Person if such
Person (or its Board of Directors or equivalent governing body) has (i)
announced that it will oppose such Acquisition or (ii) commenced any
litigation which alleges that such Acquisition violates, or will
violate, any Requirement of Law; or (b) to (i) knowingly purchase
Ineligible Securities from the Arranger during any period in which the
Arranger makes a market in such Ineligible Securities, (ii) knowingly
purchase during the underwriting or placement period Ineligible
Securities being underwritten or privately placed by the Arranger or
(iii) make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Arranger and issued by or for
the benefit of the Company or any Affiliate of the Company. The Arranger
is a registered broker-dealer and permitted to underwrite and deal in
certain Ineligible Securities; and "INELIGIBLE SECURITIES" means
securities which may not be underwritten or dealt in by member banks of
the Federal Reserve System under Section 16 of the Banking Act of 1933
(12 U.S.C. Section 24, Seventh), as amended.
8.5 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) knowingly engage in a prohibited transaction
or violation of the fiduciary
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responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in liability of the Company in an
aggregate amount in excess of $5,000,000; or (b) knowingly engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
8.6 CHANGE IN BUSINESS. The Company and its Subsidiaries, taken as
a whole, shall not engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
ARTICLE IX
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute an
"EVENT OF DEFAULT":
(a) NON-PAYMENT. The Company fails to pay, (i) within one
Business Day after the same becomes due, any amount of principal of any
Loan or any L/C Obligation, or (ii) within five Business Days after the
same becomes due, any interest, fee or any other amount payable hereunder
or under any other Loan Document.
(b) REPRESENTATION OR WARRANTY. Any representation or
warranty by the Company made or deemed made herein or any other Loan
Document, or which is contained in any certificate, document or
financial or other statement by the Company or any Responsible Officer
furnished at any time under or in connection with this Agreement or any
other Loan Document, is incorrect in any material respect on or as of
the date made or deemed made.
(c) CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company
fails to perform or observe any covenant or agreement contained in
SECTION 8.3.
(d) OTHER DEFAULTS. The Company fails to perform or
observe any other covenant contained in this Agreement or any other Loan
Document, and such default shall continue unremedied for a period of 30
days.
(e) CROSS-DEFAULT. (i) The Company or any of its Restricted
Subsidiaries shall default (subject to any applicable grace period) in the
payment of any principal of or interest on or any other amount owing under
any indebtedness for money borrowed of, or guarantied by, the Company or
such Restricted Subsidiary or for the deferred purchase price of property
or of a capitalized lease obligation, or (ii) there occurs a default in the
observance or performance of any other agreement or material term or
condition relating to any such indebtedness the effect of which default is
to cause, or permit the holder or holders of such indebtedness to cause,
such indebtedness to become due prior to its stated maturity;
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PROVIDED that no such default under CLAUSE (i) or (ii) shall constitute an
Event of Default hereunder unless the amount of such indebtedness in
default is in the principal amount of at least $15,000,000 in any single
instance.
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. The Company or any
Material Subsidiary (i) generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing.
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Material
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process is issued or levied against a substantial part of the
Company's or any Material Subsidiary's properties, and any such proceeding
or petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released, vacated or
fully bonded, within 60 days after commencement, filing, issuance or levy;
(ii) the Company or any Material Subsidiary admits in writing the material
allegations of a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any Material Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or
other similar Person for itself or a substantial portion of its property or
business.
(h) MONETARY JUDGMENTS. Final judgments for the payment of
money aggregating in excess of $10,000,000 (which amount has not been
paid or is not covered by insurance) shall be rendered against the
Company or one of its Restricted Subsidiaries and remain undischarged
for a period of more than 60 days during which execution shall not be
stayed or contested in good faith.
(i) OWNERSHIP OF THE COMPANY. Any Person or group of Persons
acting in concert acquires beneficial ownership of 40% or more of the
outstanding shares of voting stock of the Company, unless such acquisition
is approved by a majority of the Board of Directors of the Company
comprised of (i) persons who are members of the Board of Directors of the
Company on the Effective Date (the "ORIGINAL MEMBERS") or (ii) persons
thereafter endorsed for election to the Board of Directors of the Company
by all of the then-current Original Members the "Endorsed Members") and by
all then-current Endorsed Members.
(j) CHANGE IN DIRECTORS. At any time at least 51% of the
members of the Board of Directors of the Company are not Original
Members or Endorsed Members (as such terms are defined in SUBSECTION (i)
above).
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(k) ENVIRONMENTAL MATTERS. The Company or any of its
Subsidiaries shall become liable for remediation and/or environmental
compliance expenses and/or fines, penalties or other charges which, in
the aggregate, are reasonably expected to result in payments by the
Company and its Subsidiaries (other than with the proceeds of insurance)
having a present value (based upon the then-applicable Base Rate) in
excess of $15,000,000.
(l) ERISA. (i) The Company or any ERISA Affiliate incurs
liability under Title IV of ERISA to a Pension Plan, a Multiemployer Plan
or the PBGC in an aggregate amount in excess of $5,000,000; or (ii) a
contribution failure shall have occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
9.2 REMEDIES. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders,
(a) declare the commitment of each Lender to make
Committed Loans and any obligation of the Issuing Lender to Issue
Letters of Credit to be terminated, whereupon such Commitments and
obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Company; and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the Loan
Documents and applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in
SUBSECTION (f) or (g) of SECTION 9.1 (in the case of CLAUSE (i) of
SUBSECTION (g) upon the expiration of the 60-day period mentioned therein),
the obligation of each Lender to make Loans and any obligation of the
Issuing Lender to Issue Letters of Credit shall automatically terminate and
the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable
without further act of the Administrative Agent, the Issuing Lender or any
Lender.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or
hereafter arising.
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ARTICLE X
THE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. (a) Each Lender hereby
irrevocably (subject to SECTION 10.9) appoints, designates and
authorizes each Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, nor
shall any Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
any other Loan Document, or otherwise exist against any Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to any Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to
act for the Issuing Lender with respect thereto; PROVIDED that the
Issuing Lender shall have all of the benefits and immunities (i)
provided to the Administrative Agent in this SECTION 10 with respect to
any acts taken or omissions suffered by the Issuing Lender in connection
with Letters of Credit Issued by it or proposed to be Issued by it and
the application and agreements pertaining to the Letters of Credit as
fully as if the term "Administrative Agent", as used in this SECTION 10,
included the Issuing Lender with respect to such acts or omissions, and
(ii) as additionally provided in this Agreement with respect to the
Issuing Lender.
10.2 DELEGATION OF DUTIES. Each Agent may execute any of its
duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. No Agent
shall be responsible to any of the Lenders for the negligence or
misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.3 LIABILITY OF AGENTS. None of the Agent-Related Persons shall
(a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner
to any of the Lenders for any recital, statement, representation or
warranty made by the Company
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or any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided
for in, or received by any Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document, or for any failure of the Company or any other
party to any Loan Document to perform its obligations hereunder or under
such Loan Document. No Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of,
this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Company or any of the Company's Subsidiaries or
Affiliates.
10.4 RELIANCE BY AGENTS. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by such Agent. Each
Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in SECTION 5.1, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lender.
10.5 NOTICE OF DEFAULT. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default (except, in the case of the Administrative
Agent, with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account
of the Lenders) unless such Agent shall have received written notice
from a Lender or the Company referring to this Agreement, describing
such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". If the Administrative Agent
receives such a notice, the Administrative Agent will notify the Lenders
of its receipt of such notice. The Administrative Agent shall take such
action with respect to such Event of Default or
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Unmatured Event of Default as may be requested by the Required Lenders
in accordance with SECTION 9.2; PROVIDED, HOWEVER, that unless and until
the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or
in the best interest of the Lenders.
10.6 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and
that no act by any Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to
any Lender. Each Lender represents to each Agent that it has,
independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all applicable
bank regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly
herein required to be furnished to the Lenders by the Administrative
Agent, no Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of
any Agent-Related Person.
10.7 INDEMNIFICATION OF AGENTS. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company
to do so), pro rata, from and against any and all Indemnified
Liabilities; PROVIDED, HOWEVER, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of the Indemnified
Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf
of the Company. The undertaking in this Section shall survive the
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payment of all Obligations hereunder and the resignation or replacement
of any Agent.
10.8 AGENTS IN INDIVIDUAL CAPACITY. Each of Bank of America and
its Affiliates, SunTrust Bank ("SunTrust") and its Affiliates and U.S.
Bank National Association ("U.S. Bank") and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with
the Company and its Subsidiaries and Affiliates as though Bank of
America, SunTrust and U.S. Bank were not Agents and Bank of America was
not the Issuing Lender hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, any
of Bank of America, SunTrust or U.S. Bank, or its respective Affiliates,
may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality
obligations in favor of the Company or such Affiliates) and acknowledge
that no Agent shall be under any obligation to provide such information
to them. With respect to their respective Loans, Bank of America,
SunTrust and U.S. Bank, and any of their respective Affiliates, shall
have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though Bank of America, SunTrust and U.S.
Bank were not Agents hereunder or the Issuing Lender, as the case may be.
10.9 RESIGNATION; REMOVAL; SUCCESSOR ADMINISTRATIVE AGENT. Any
Agent may, and at the request of the Required Lenders shall, resign as
an Agent upon 30 days' notice to the Lenders. If the Administrative
Agent resigns, the Required Lenders shall appoint from among the Lenders
a successor administrative agent for the Lenders. If no successor
administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Company, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties
of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent, and the retiring
Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
ARTICLE X and SECTIONS 11.4 and 11.5 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by
the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Administrative Agent hereunder until
such time, if any, as the Required Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, Bank of
America may not be removed as the Administrative Agent at the request of
the Required Lenders unless Bank of America and any applicable Affiliate
thereof shall also simultaneously be replaced as "Issuing Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
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10.10 WITHHOLDING TAX. (a) If any Lender is a "foreign
corporation, partnership or trust" within the meaning of the Code and
such Lender claims exemption from, or a reduction of, U.S. withholding
tax under Sections 1441 or 1442 of the Code, such Lender agrees with and
in favor of the Administrative Agent, to deliver to the Administrative
Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under
the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent of
any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Lender sells, assigns, grants a participation in, or
otherwise transfers, all or part of the Obligations owed by the Company
to such Lender, such Lender agrees to notify the Administrative Agent of
the percentage amount in which it is no longer the beneficial owner of
Obligations owed by the Company to such Lender. To the extent of such
percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers, all
or part of the Obligations owed by the Company to such Lender, such
Lender agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from
any interest payment to such Lender an amount equivalent to the
applicable withholding tax after taking into account such reduction. If
the forms or other documentation required by SUBSECTION (a) of this
Section are not
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delivered to the Administrative Agent, then the Administrative Agent may
withhold from any interest payment to such Lender not providing such
forms or other documentation an amount equivalent to the applicable
withholding tax without deduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to
or for the account of any Lender (because the appropriate form was not
delivered or was not properly executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly,
by the Administrative Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, together
with all costs and expenses (including Attorney Costs). The obligation
of the Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Administrative
Agent.
ARTICLE XI
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent
with respect to any departure by the Company or any applicable
Subsidiary therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by the Administrative
Agent at the written request of the Required Lenders) and the Company
and acknowledged by the Administrative Agent, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED that no such waiver,
amendment or consent shall, unless in writing and signed by all of the
Lenders and the Company and acknowledged by the Administrative Agent, do
any of the following:
(a) increase or extend the Commitment of any Lender, other
than as set forth in SECTIONS 2.16 and 2.17 (or reinstate any Commitment
terminated pursuant to SECTION 9.2);
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan, or reduce any fees (other than fees
referred to in SUBSECTION 2.11(a)) or other amounts payable hereunder;
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(d) change the percentage of the Aggregate Commitment or
of the aggregate unpaid principal amount of the Loans which is required
for the Lenders or any of them to take any action hereunder; or
(e) amend this Section, or SECTION 2.15, or any provision
herein providing for consent or other action by all Lenders;
and PROVIDED, FURTHER, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Lender in addition to the
Required Lenders or all Lenders, as the case may be, affect the rights
and duties of the Issuing Lender under this Agreement or any L/C-Related
Document, and (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the
Required Lenders or all Lenders, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other
Loan Document.
11.2 NOTICES. (a) All notices, requests and other communications
shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified
on SCHEDULE 11.2 and (ii) shall be followed promptly by delivery of a
hard copy original thereof) and mailed, faxed or delivered to the
address or facsimile number specified for notices on SCHEDULE 11.2; or,
as directed to the Company or the Administrative Agent, to such other
address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address
as shall be designated by such party in a written notice to the Company
and the Administrative Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail; except that notices pursuant to ARTICLE
II, ARTICLE III or X to the Administrative Agent or the Issuing Lender
shall not be effective until actually received by the Administrative
Agent or the Issuing Lender, as the case may be.
(c) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Company. The
Administrative Agent and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Administrative Agent and the Lenders
shall not have any liability to the Company or any other Person on
account of any action taken or not taken in good faith by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans and
L/C Obligations shall not be affected in any way or to any extent by any
failure by the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at
variance with the terms
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understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.
11.4 COSTS AND EXPENSES. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse Bank of America (including in its
capacity as Administrative Agent and Issuing Lender) and the Arranger
within five Business Days after demand (subject to SUBSECTION 4.1(f))
for all reasonable costs and expenses incurred by the Bank of America
(including in its capacity as Administrative Agent and Issuing Lender)
and the Arranger in connection with the development, preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Loan Document and any other
document prepared in connection herewith, and the consummation of the
transactions contemplated hereby, including Attorney Costs incurred by
the Bank of America (including in its capacity as Administrative Agent
and Issuing Lender) and the Arranger with respect thereto; and
(b) pay or reimburse each Agent, the Arranger and each
Lender within five Business Days after demand for all reasonable costs
and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement or preservation of any
rights or remedies under this Agreement and any other Loan Document
during the existence of an Event of Default or after acceleration of the
Loans (including in connection with any "workout" or restructuring
regarding the Loans, any Insolvency Proceeding or any appellate
proceeding).
11.5 COMPANY INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and
hold harmless the Agent-Related Persons, and each Lender and each of
their respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each an "INDEMNIFIED PERSON"), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken or
omitted by any such Person under or in connection with any of the
foregoing, including with respect
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to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED that (a) the
Company shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities to the extent incurred by reason
of the gross negligence or willful misconduct of such Indemnified Person
and (b) the Company shall not be liable to any Indemnified Person for
any such loss, claim, damage, liability or expense to the extent caused
by or relating to any legal proceedings commenced against any
Indemnified Person by any security holder, depositor or creditor of such
Indemnified Person or his or her employer arising out of and based upon
rights afforded any such security holder, depositor or creditor solely
in its capacity as such. The agreements in this Section shall survive
payment of all other Obligations.
11.6 PAYMENTS SET ASIDE. To the extent that the Company makes a
payment to any Agent or any Lender, or any Agent or any Lender exercises
its right of set-off, and such payment or the proceeds of such set-off
or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to
any settlement entered into by such Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the
extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such set-off had not
occurred and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Administrative Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent and each
Lender.
11.8 ASSIGNMENTS, PARTICIPATIONS, ETC. (a) Any Lender may, with
the prior written consent of the Company, the Issuing Lender and the
Administrative Agent (which consents shall not be unreasonably
withheld), at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company, the Issuing
Lender or the Administrative Agent shall be required in connection with
any assignment and delegation by a Lender to an Eligible Assignee that
is an Affiliate of such Lender) (each an "ASSIGNEE") all, or any ratable
part of all, of the Committed Loans, the Commitment, the L/C Obligations
and the other rights and obligations of such Lender hereunder, in a
minimum amount of $10,000,000 (or, in the case of an assignment and
delegation to an Affiliate of such Lender or another Lender,
$5,000,000); PROVIDED that no Lender may (subject to, so long as no
Event of Default has occurred and is continuing, the consent of the
Company, which may be withheld for any reason) make any assignment
(other than to an Affiliate of such Lender)
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<PAGE>
which would result in the amount of such Lender's Commitment being less
than the product of (x) $15,000,000 and (y) the quotient (but not more
than one) of the then-current Aggregate Commitment DIVIDED BY
$180,000,000; and PROVIDED, FURTHER, that the Company, the Issuing
Lender and the Administrative Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to
an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company, the Issuing Lender
and the Administrative Agent by such Lender and the Assignee; (ii) such
Lender and its Assignee shall have delivered to the Company, the Issuing
Lender and the Administrative Agent an Assignment and Acceptance in the
form of EXHIBIT I ("ASSIGNMENT AND ACCEPTANCE") together with any Note
or Notes subject to such assignment and (iii) the assignor Lender or
Assignee (or, in the case of an assignment required by SECTION 2.17, the
Company) has paid to the Administrative Agent a processing fee in the
amount of $3,500.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received and provided its
consent (and received, if applicable, the consent of the Company) with
respect to an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender hereunder and under
the other Loan Documents and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations
hereunder and under the other Loan Documents.
(c) Any Lender may at any time, with the prior written
consent of the Company (which consent shall not be unreasonably
withheld) sell to one or more commercial banks or other Persons not
Affiliates of the Company (a "PARTICIPANT") participating interests in
any Loans, the Commitment of such Lender and the other interests of such
Lender (the "ORIGINATING LENDER") hereunder and under the other Loan
Documents, in a minimum amount of $5,000,000; PROVIDED that no Lender
may (subject to, so long as no Event of Default has occurred and is
continuing, the consent of the Company, which may be withheld for any
reason) sell any participation which would result in the amount of such
Lender's Commitment MINUS the amount of all participating interests sold
by such Lender being less than the product of (x) $15,000,000 and (y)
the quotient (but not more than one) of the then-current amount of the
Aggregate Commitment DIVIDED BY $180,000,000; and PROVIDED, FURTHER,
that (i) the originating Lender's obligations under this Agreement shall
remain unchanged, (ii) the originating Lender shall remain solely
responsible for the performance of such obligations, (iii) the Company,
the Issuing Lender and the Administrative Agent shall continue to deal
solely and directly with the originating Lender in connection with the
originating Lender's rights and obligations under this Agreement and the
other Loan Documents and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to approve
any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Documents, except to the extent
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<PAGE>
such amendment, consent or waiver would require unanimous consent of the
Lenders as described in the FIRST PROVISO to SECTION 11.1. In the case
of any such participation, the Participant shall be entitled to the
benefit of SECTIONS 4.1, 4.3, 4.4, 11.4 and 11.5 as though it were also
a Lender hereunder (provided that no Participant shall be entitled to
receive any greater amount pursuant to such Sections than the
originating Lender would have been entitled to receive if no such
participation had been sold), and if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of
its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement.
(d) Notwithstanding any other provision in this Agreement,
any Lender may at any time (i) sell, assign or grant participations in
any Bid Loan made by such Lender or (ii) create a security interest in,
or pledge, all or any portion of its rights under and interest in this
Agreement and any Note held by it in favor of any Federal Reserve Bank
in accordance with Regulation A of the FRB or U.S. Treasury Regulation
31 CFR Section 203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
11.9 CONFIDENTIALITY. Each Lender agrees that all information
concerning the Company or its Subsidiaries that is furnished or has
previously been furnished to such Lender by or on behalf of the Company
or any Subsidiary, or by the Administrative Agent or the Arranger on the
Company's or such Subsidiary's behalf, in connection with this Agreement
and the other Loan Documents will be held in confidence and treated as
confidential by such Lender and its Affiliates and will not, except as
hereinafter provided, without the prior written consent of the Company,
be disclosed by such Lender or its Affiliates in any manner whatsoever,
in whole or in part, or be used by such Lender or its Affiliates other
than in connection with or in enforcement of the Loan Documents or in
connection with other business now or hereafter existing or contemplated
by such Lender or any of its Affiliates with the Company or any
Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure
by such Lender or any of its Affiliates, or (ii) was or becomes
available on a non-confidential basis from a source other than the
Company, provided that, insofar as known to such Lender, such source is
not prohibited from providing such information by any contractual, legal
or fiduciary obligation to the Company; PROVIDED, HOWEVER, that any
Lender may disclose such information (A) at the request or pursuant to
any requirement of any Governmental Authority to which such Lender is
subject or in connection with an examination of such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection
with any litigation or proceeding relating to this Agreement to which
the Administrative Agent or any Lender or any of their respective
Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other
Loan Document;
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<PAGE>
(F) to such Lender's independent auditors and other professional
advisors (each of which shall be required to keep such information
confidential to the extent provided in this SECTION 11.9); (G) to any
Participant or Assignee, actual or prospective provided that such Person
agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder; (H) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Company or any
Subsidiary is party with such Lender or such Affiliate; and (I) to its
Affiliates (each of which shall be required to keep such information
confidential to the extent provided in this SECTION 11.9).
11.10 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior
notice to the Company, any such notice being expressly waived by the
Company to the extent permitted by applicable law, upon the occurrence
of any Insolvency Proceeding with respect to the Company, the issuance
of any execution against any of the property of the Company, the
issuance of a subpoena or order, in supplementary proceedings, against
or with respect to any of the property of the Company, or the issuance
of a warrant of attachment against any of the property of the Company,
to set-off and apply against any indebtedness, whether matured or
unmatured, of the Company to such Lender, any amount owing from such
Lender to the Company, at or at any time after the happening of any of
the above-mentioned events, and the aforesaid right of set-off may be
exercised by such Lender against the Company or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or executor, judgment or attachment creditor of the Company, or
against anyone else claiming through or against the Company or such
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or executor, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or
service upon such Lender of, or of notice of, any such Insolvency
Proceeding or the issuance of such execution, subpoena, order or
warrant. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Lender, PROVIDED that the failure to give such notice shall not affect
the validity of such set-off and application.
11.11 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender
shall notify the Administrative Agent in writing of any change in the
address to which notices to such Lender should be directed, of addresses
of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative
information as the Administrative Agent shall reasonably request.
11.12 COUNTERPARTS; EFFECTIVE DATE AND CLOSING DATE. This
Agreement may be executed in any number of separate counterparts, each
of which, when so executed, shall be deemed an original, and all of
which taken together shall be deemed to constitute but one and the same
instrument. The Administrative Agent shall advise the Company and each
Lender promptly upon the occurrence of each of the Effective Date and
the Closing Date.
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<PAGE>
11.13 SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or such
instrument or agreement.
11.14 NO THIRD PARTIES BENEFITTED. This Agreement is made and
entered into for the sole protection and legal benefit of the Company,
the Lenders, the Agents and the Agent-Related Persons, and their
permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any other Loan
Document.
11.15 GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
SUCH COURTS. EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
11.16 WAIVER OF JURY TRIAL. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH
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<PAGE>
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS,
IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
11.17 ENTIRE AGREEMENT. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among
the Company, the Lenders and the Administrative Agent, and supersedes
all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and
thereof (except for the fee letter dated July 10, 2000 among the
Company, the Administrative Agent and the Arranger).
11.18 TERMINATION OF THE EXISTING AGREEMENT. The Company and the
Lenders which are parties to the Existing Agreement (which Lenders
constitute the "Required Lenders" under and as defined in the Existing
Agreement) agree that, concurrently with the occurrence of the Closing
Date (and notwithstanding any provision of the Existing Agreement which
requires advance notice of termination of the "Commitments" thereunder),
the Existing Agreement shall immediately terminate and be of no further
force and effect (except for provisions thereof which by their terms
survive termination thereof).
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
INTERNATIONAL MULTIFOODS
CORPORATION
By: /s/ GREGORY J. KEMP
--------------------------------------
Title: VICE PRESIDENT AND TREASURER
----------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent, as Issuing Lender
and as a Lender
By: /s/ G. BURTON QUEEN
--------------------------------------
Title: MANAGING DIRECTOR
----------------------------------
SUNTRUST BANK,
as Syndication Agent and as a Lender
By: /s/ MICHAEL PUGSLEY
--------------------------------------
Title: VICE PRESIDENT
----------------------------------
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ DAVID A. DRAXLER
--------------------------------------
Title: VICE PRESIDENT
----------------------------------
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD,
CHICAGO BRANCH
By: /s/ PATRICK MCCUE
--------------------------------------
Title: VICE PRESIDENT & MANAGER
----------------------------------
THE BANK OF NEW YORK
By: /s/ RICHARD A. RALTETTO
--------------------------------------
Title: VICE PRESIDENT
----------------------------------
BANK HAPOALIM B.M.
By: /s/ MICHAEL J. BYRNE
--------------------------------------
Title: VP-SR. LENDING OFFICER
----------------------------------
By: /s/ THOMAS J. HEPPERLE
--------------------------------------
Title: VICE PRESIDENT
----------------------------------
<PAGE>
SCHEDULE 1.1
PRICING SCHEDULE
The Applicable Margin for Offshore Rate Committed Loans and Facility
Fee Rate shall be determined based on the then-current Rating Level as set forth
below.
<TABLE>
<CAPTION>
Applicable
Rating Margin for Offshore L/C Facility
Level Rate Committed Loans Fee Rate Fee Rate
------ -------------------- -------- --------
<S> <C> <C> <C>
I 0.150% 0.150% 0.100%
II 0.250% 0.250% 0.125%
III 0.350% 0.350% 0.150%
IV 0.450% 0.450% 0.175%
V 0.675% 0.675% 0.200%
VI 1.075% 1.075% 0.300%
</TABLE>
<PAGE>
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
<TABLE>
<CAPTION>
Pro Rata
Lender Commitment Share
------ ---------- --------
<S> <C> <C>
Bank of America, N.A. $50,000,000 27.8%
SunTrust Bank 40,000,000 22.2
U.S. Bank National Association 35,000,000 19.4
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch 25,000,000 13.9
The Bank of New York 20,000,000 11.1
Bank Hapoalim B.M. 10,000,000 5.6
---------- ----
TOTAL $180,000,000 100%
</TABLE>
<PAGE>
SCHEDULE 6.11
RESTRICTED SUBSIDIARIES
<TABLE>
<CAPTION>
Jurisdiction
of
Name of Subsidiary Incorporation
------------------ -------------
<S> <C>
Fantasia Confections, Inc. California
Multifoods Distribution Management, Inc. Delaware
Better Brands, Inc. Delaware
Multifoods Distribution Group, Inc. Colorado
Multifoods Merchandising, Inc. Delaware
Robin Hood Multifoods Inc. Ontario
Multifoods Inc. Ontario
1403810 Ontario Inc. Ontario
Gourmet Baker Inc. Ontario
980964 Ontario Limited Ontario
</TABLE>
<PAGE>
SCHEDULE 11.2
OFFSHORE AND DOMESTIC LENDING OFFICES;
ADDRESSES FOR NOTICES
BANK OF AMERICA, N.A.,
as Administrative Agent, as Issuing Lender and as a Lender
Bank of America, N.A.
Credit Services
901 Main Street, 14th Floor
Mail Code: TX1-492-14-11
Dallas, Texas 75202
Attention: Chris Morris
Telephone: 214-209-2133
Facsimile: 214-290-9435
U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent and as a Lender
U.S. Bank Place, MPFP0607
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Attention: Mary Murphy, Relationship Banking
Telephone: 612-973-0549
Facsimile: 612-973-0224
Email: [email protected]
SUNTRUST BANK, as Syndication Agent and as a Lender
25 Park Place
Atlanta, Georgia 30088
Attention: Barbara Thomas, CBA
Telephone: 404-588-4237
Facsimile: 404-230-1940
BANK HAPOALIM B.M.
225 North Michigan Avenue
Suite 900
Chicago, Illinois 60601
Attention: Karen M. Adams, Loan Administrator
Telephone: 312-228-6453
Facsimile: 312-228-6490
Email: [email protected]
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD.
90 South 7th Street
5100 Wells Fargo Center
Minneapolis, MN 55402
Attention: Patrick McCue
Telephone: 612-333-0505
Facsimile: 612-333-3735
Email: [email protected]
THE BANK OF NEW YORK
One Wall Street, 19th Floor
New York, New York 10286
Attention: Yvonne M. Forbes, Assistant Treasurer
Telephone: 212-635-6691
Facsimile: 212-635-7926
INTERNATIONAL MULTIFOODS CORPORATION
110 Cheshire Lane, Suite 300
Minnetonka, MN 55305-1060
Attention: Treasurer
Telephone: (952) 594-3322
Facsimile: (952) 594-3362
with (except in the case of notices
pursuant to Article II) a copy to:
Frank W. Bonvino
Vice President, Secretary and
General Counsel
International Multifoods Corporation
110 Cheshire Lane, Suite 300
Minnetonka, MN 55305-1060
Telephone: (952) 594-3579
<PAGE>
EXHIBIT A
FORM OF
NOTICE OF COMMITTED BORROWING
Date:
-------------------
To: Bank of America, N.A., as Administrative Agent under the Credit
Agreement, dated as of October 24, 2000 (as amended or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among
International Multifoods Corporation, various financial institutions,
SunTrust Bank, as Syndication Agent, U.S. Bank National Association,
as Documentation Agent, and Bank of America, N.A., as Administrative
Agent.
Ladies and Gentlemen:
The undersigned, International Multifoods Corporation (the "COMPANY"),
refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section
2.3 of the Credit Agreement, of the Committed Borrowing specified below:
1. The Business Day of the proposed Committed Borrowing
is _______________, ____.
2. The Committed Borrowing is to be comprised of [Base Rate]
[Offshore Rate] Loans.
3. The aggregate amount of the proposed Committed Borrowing
is $______________________.
[ 4. The duration of the Interest Period for the Offshore Rate
Loans included in the Committed Borrowing shall be _____ months.]
The Company certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Committed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement (excluding the representations and warranties
contained in Sections 6.3, 6.4 and 6.11) are true and correct in all
material respects as though made on and as of such date (except to the
extent such representations and warranties expressly relate to an
earlier date, in which case they are true and correct as of such
date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Committed
Borrowing; and
<PAGE>
(c) the proposed Committed Borrowing will not cause Total
Outstandings to exceed the Aggregate Commitment.
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
-2-
<PAGE>
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
Date:
-------------------
To: Bank of America, N.A., as Administrative Agent under the Credit
Agreement, dated as of October 24, 2000 (as amended or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among
International Multifoods Corporation, various financial institutions,
SunTrust Bank, as Syndication Agent, U.S. Bank National Association,
as Documentation Agent, and Bank of America, N.A., as Administrative
Agent.
Ladies and Gentlemen:
The undersigned, International Multifoods Corporation (the "COMPANY"),
refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section
2.4 of the Credit Agreement, with respect to the [conversion] [continuation] of
the Committed Loans specified herein, that:
1. The Conversion/Continuation Date is __________________, ____.
2. The aggregate amount of the Committed Loans to be [converted]
[continued] is $_________________.
3. The Committed Loans are to be [converted into] [continued as]
[Offshore Rate] [Base Rate] Committed Loans.
[ 4. The duration of the Interest Period for the Offshore Rate
Committed Loans included in the [conversion] [continuation] shall be
____ months.]
The Company certifies that on the date hereof, and on the proposed
Conversion/Continuation Date both before and after giving effect thereto:
(a) solely in the case of conversion into a continuation of an
Offshore Rate Committed Loan, no Event of Default or Unmatured Event
of Default has occurred and is continuing, or would result from such
proposed [conversion] [continuation]; and
<PAGE>
(b) the proposed continuation/conversion will not cause Total
Outstandings to exceed the Aggregate Commitment.
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
-2-
<PAGE>
EXHIBIT C
FORM OF
INVITATION FOR COMPETITIVE BIDS
VIA FACSIMILE
Date:
--------------------
To: The Lenders Listed on SCHEDULE A attached hereto.
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 24,
2000 (as amended or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among International Multifoods Corporation, various financial
institutions, SunTrust Bank, as Syndication Agent, U.S. Bank National
Association, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Capitalized terms used herein have the meanings specified
in the Credit Agreement.
This is an Invitation for Competitive Bids pursuant to Section 2.6 of
the Credit Agreement as follows:
1. The Business Day of the proposed Bid Borrowing
is _________________, ___.
2. The aggregate amount of the proposed Bid Borrowing is
$___________ , comprised of [$_________ as Absolute Rate Bid Loans]
[and] [$__________ as LIBOR Bid Loans].
3. The Interest Period[s] for the Bid Loans comprising the
Borrowing shall be ________________[, ________ and ________________].
The Company certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Bid Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement (excluding the representations and warranties
contained in Sections 6.3, 6.4 and 6.11) are true and correct in all
material respects as though made on and as of such date (except to the
extent such representations and warranties expressly relate to an
earlier date, in which case they are true and correct as of such
date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Bid
Borrowing; and
<PAGE>
(c) the proposed Bid Borrowing will not cause Total Outstandings
to exceed the Aggregate Commitment.
All Competitive Bids must be in the form of Exhibit D to the Credit
Agreement and must be received by the undersigned no later than 8:30 a.m.
(Chicago time) [on _______________, ____, in the case of a LIBOR Auction]
[and] [on _______________, ____, in the case of an Absolute Rate Auction].
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
Facsimile:
-------------------------------
-2-
<PAGE>
SCHEDULE A
List of Lenders
<PAGE>
EXHIBIT D
FORM OF COMPETITIVE BID
Date:
--------------------
To: International Multifoods Corporation
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October 24,
2000 (as amended or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among International Multifoods Corporation, various financial
institutions, SunTrust Bank, as Syndication Agent, U.S. Bank National
Association, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Capitalized terms used herein have the meanings specified
in the Credit Agreement.
In response to the Invitation for Competitive Bids of International
Multifoods Corporation, dated ______________, _____, and in accordance with
subsection 2.6(b) of the Credit Agreement, the undersigned Lender offers to make
[a] Bid Loan[s] thereunder in the following principal amount[s] at the following
interest rates for the following Interest Period[s]:
Borrowing Date: ____________________, ____
Aggregate Maximum Bid Amount: $______________________
<TABLE>
<S> <C> <C>
Principal Principal Principal
Amount $_______ Amount $_______ Amount $_______
Absolute Absolute Absolute
Rate __% Rate __% Rate __%
LIBOR LIBOR LIBOR
Bid Margin __% Bid Margin __% Bid Margin __%
Interest Interest Interest
Period __________ Period __________ Period __________
</TABLE>
[NAME OF LENDER]
By:______________________________________
Name:____________________________________
Title:___________________________________
<PAGE>
EXHIBIT E
FORM OF
NOTE
_________________, 2000
FOR VALUE RECEIVED, the undersigned, International Multifoods
Corporation (the "COMPANY"), hereby promises to pay to the order of
_________________ (the "LENDER") the aggregate unpaid principal amount of all
Committed Loans and Bid Loans made by the Lender to the Company pursuant to
the Credit Agreement, dated as of October 24, 2000 (as amended or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Company,
various financial institutions, SunTrust Bank, as Syndication Agent, U.S.
Bank National Association, as Documentation Agent, and Bank of America, N.A.,
as Administrative Agent, on the dates and in the amounts provided in the
Credit Agreement. The Company further promises to pay interest on the unpaid
principal amount of the Loans evidenced hereby from time to time at the
rates, on the dates, and otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which
each Loan is made and each payment of principal with respect thereto on the
schedules annexed hereto and made a part hereof, or on continuations thereof
which shall be attached hereto and made a part hereof; provided that any failure
to endorse such information on such schedule or continuation thereof shall not
in any manner affect any obligation of the Company under the Credit Agreement
and this Promissory Note (this "NOTE").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Illinois applicable to contracts made and to be performed entirely
within such State.
INTERNATIONAL MULTIFOODS CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
<PAGE>
Schedule A to Note
BASE RATE COMMITTED LOANS AND REPAYMENTS OF
BASE RATE COMMITTED LOANS
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
(2) (3)
(1) Amount of Base Amount of Base Rate (4)
Date Rate Committed Loan Committed Loan Repaid Notation Made By
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
-----------------------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE>
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENTS OF OFFSHORE RATE LOANS
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
(4)
(2) (3) Amount of (5)
(1) Amount of Offshore Interest Period for Offshore Rate Notation
Date Rate Loan Offshore Rate Loan Loan Repaid Made By
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule C to Note
ABSOLUTE RATE BID LOANS AND REPAYMENTS OF
ABSOLUTE RATE BID LOANS
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------
(4)
(2) (3) Amount of
Amount of Interest Rate for Absolute Rate (5)
(1) Absolute Rate Absolute Rate Bid Loan Notation
Date Bid Loan Bid Loan Repaid Made By
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
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</TABLE>
-2-
<PAGE>
EXHIBIT F
FORM OF
COMPLIANCE CERTIFICATE
To: Bank of America, N.A., as Administrative Agent, SunTrust Bank, as
Syndication Agent, U.S. Bank National Association, as Documentation
Agent, and the Lenders which are party to the Credit Agreement
referred to below
Reference is made to the Credit Agreement dated as of October 24, 2000
(as amended or otherwise modified from time to time, the "Credit Agreement")
among International Multifoods Corporation (the "Company"), various financial
institutions, SunTrust Bank, as Syndication Agent, U.S. Bank National
Association, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Terms used but not otherwise defined herein are used
herein as defined in the Credit Agreement.
I. REPORTS. Pursuant to Section 7.3 of the Credit Agreement, enclosed
herewith [are copies of (i) the Annual Report of the Company
containing the consolidated balance sheet of the Company and its
subsidiaries as at the close of the fiscal year of the Company ended
February __, _______and consolidated statements of earnings and cash
flows of the Company and its subsidiaries for such year, certified by
the Company's independent public accountants, and (ii) the Company's
most recent Form 10-K filed with the SEC.] [is a copy of the Company's
most recent Form 10-Q filed with the SEC.]
II. FINANCIAL TESTS. The Company hereby certifies and warrants to you that
the following is a true and correct computation as at the Computation
Date of the following ratios and/or financial restrictions contained
in the Credit Agreement:
<PAGE>
A. SUBSECTION 8.1(a) TOTAL INDEBTEDNESS TO TOTAL CAPITALIZATION
<TABLE>
<S> <C>
Long-term Debt (net of current portion) $
Current portion of long-term debt $
Notes payable $
-----
Total Indebtedness $
Common Stockholders' Equity $
Preferred stock $
Other(1) $
-----
Net Worth $
Plus: Non-recurring write-offs of $
goodwill and other intangibles since -----
August 26, 2000.
Total Capitalization $
Total Indebtedness to Total Capitalization _____%
Maximum permitted ratio 0.60%
</TABLE>
(1) "Other" equals the lesser of (i) the outstanding amount of any
guaranty of an obligation given by the Company or any Subsidiary of
the Company to a lender to a trust holding assets of any employee
benefit plan of the Company or any Subsidiary of the Company for the
purpose of allowing such trust to borrow monies, which amount has been
reflected on the consolidated balance sheet of the Company as a
reduction of common stockholders' equity, or (ii) two-thirds of the
value of any stock owned by such trust securing such obligation of the
trust.
-2-
<PAGE>
B. SUBSECTION 8.1(b) MAINTENANCE OF FIXED CHARGE COVERAGE
<TABLE>
<CAPTION>
[FQE] [FQE] [FQE] [FQE] TOTAL
<S> <C> <C> <C> <C> <C>
1. Consolidated net interest expense $____ $____ $____ $____ $____
(reduced by capitalized interest
and interest income)
2. Minimum rentals for operating $____ $____ $____ $____ $____
leases of the Company and its
consolidated subsidiaries
3. Earnings Before Income Tax $____ $____ $____ $____ $____
(exclusive of unusual or
non-recurring non-cash items).
4. Item 1 plus Item 2 plus Item 3 $_____
5. Item 1 plus Item 2 $_____
6. Ratio of Item 4 to Item 5 _.__ to 1.00
7. Required Fixed Charge Coverage 1.50 to 1.00
</TABLE>
-3-
<PAGE>
III. DEFAULTS. The Company hereby further certifies and warrants to you
that no Event of Default or Unmatured Event of Default has occurred
and is continuing.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed and delivered by its duly authorized officer this _________________ day
of _______________________, ____.
INTERNATIONAL MULTIFOODS CORPORATION
By: ______________________________
Title:____________________________
-4-
<PAGE>
EXHIBIT G
FORM OF
LEGAL OPINION OF COUNSEL TO THE COMPANY
October 24, 2000
Bank of America, N.A., as Administrative Agent
and Letter of Credit Issuing Lender,
and the Lenders under the
Credit Agreement referred to below
Credit Services
901 Main Street, 14th Floor
Mail Code: TX1-492-14-11
Dallas, Texas 75202
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of International
Multifoods Corporation, a Delaware corporation (the "Company"), and I have acted
as counsel to the Company in connection with the execution and delivery of the
Credit Agreement (the "Agreement") dated as of October 24, 2000 among the
Company, various financial institutions, SunTrust Bank, as Syndication Agent,
U.S. Bank National Association, as Documentation Agent, and Bank of America,
N.A., as Administrative Agent and Letter of Credit Issuing Lender. This opinion
is being delivered pursuant to Section 5.1 of the Agreement. Capitalized terms
used in this opinion shall have the meanings attributed to them in the
Agreement.
For purposes of this opinion, I have examined the following:
1. The Restated Certificate of Incorporation, as amended, of the
Company;
2. The Bylaws of the Company, as amended;
3. Resolutions of the Board of Directors of the Company adopted on
September 15, 2000;
4. An executed copy of the Agreement; and
5. The notes issued by the Company pursuant to the Agreement on the
date hereof (the "Notes").
I have also examined such other documents and reviewed such questions
of law as I have considered necessary and appropriate for the purposes of this
opinion.
<PAGE>
In rendering my opinions set forth below, I have assumed the
authenticity of all documents submitted to me as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to me as copies. I have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to certain questions of fact material to my opinion, I have
relied upon certificates or representations of officers of the Company and of
public officials.
Based on the foregoing, and subject to the assumptions and
qualifications set forth below, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has the power and authority (corporate and other) to own its properties and
carry on its business as now being conducted.
2. The Company has the corporate power and authority to execute and
deliver the Agreement and the Notes and to perform its obligations thereunder.
The execution, delivery and performance by the Company of the Agreement and
Notes have been duly authorized by all necessary corporate action on the part of
the Company.
3. The Agreement and the Notes are valid and binding obligations of
the Company enforceable in accordance with their terms, in each case as
enforceability may be subject to bankruptcy, reorganization, insolvency,
moratorium or other similar laws and court decisions relating to or affecting
the enforcement of creditors' rights generally and as enforceability may be
subject to limitations imposed by law upon the availability of specific
enforcement, injunctive relief or other equitable remedies.
4. To the best of my knowledge, there is no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority pending or threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
which would reasonably be expected to have a material adverse effect on the
consolidated financial position of the Company and its Subsidiaries, taken as a
whole.
5. The execution, delivery and performance by the Company of the
Agreement and the Notes (a) do not require any action or consent of, or any
registration with, any Governmental Authority, or of any other party under any
contract or agreement known to me to which the Company or any of its
Subsidiaries is a party, or under any order or decree known to me to which the
Company or any of its Subsidiaries is a party or to which any of their
properties or assets are subject and (b) will not conflict with the
<PAGE>
terms and conditions of, or constitute a default under, any contract, agreement,
order or decree known to me to which the Company or any of its Subsidiaries is a
party or to which any of their properties or assets are subject.
I express no opinion as to (a) indemnification or contribution
obligations which contravene public policy, (b) any provision of the Credit
Agreement purporting to convey rights to Persons other than parties to the
Credit Agreement or (c) any waiver of (i) the right to a jury trial, (ii) any
objection to venue or (iii) any right to bring legal proceedings in any court
having jurisdiction.
My opinions expressed above are limited to the laws of the State of
Minnesota, the Delaware General Corporation Law and the federal laws of the
United States of America, in each case as in effect on the date hereof, and no
opinion is expressed herein as to the laws of any other jurisdiction. In
rendering the opinions set forth in paragraph 3 above, I have assumed that the
laws of the State of Minnesota would apply notwithstanding the selection of
Illinois law as the governing law in the Agreement and with respect to the
Notes. In the event that the Agreement and the Notes were sought to be enforced
against the Company in the State of Minnesota, the courts of competent
jurisdiction in Minnesota, subject to public policy, would give effect to the
choice of Illinois law as the governing law with respect to the Agreement and
the Notes. I am not aware of any reason as to why the recognition and
application of Illinois law would be contrary to public policy in Minnesota.
Minnesota Statutes, Section 290.371, Subdivision 4, provides that any
corporation required to file a Notice of Business Activities Report does not
have a cause of action upon which it may bring suit under Minnesota law unless
the corporation has filed a Notice of Business Activities Report and provides
that the use of the courts of the State of Minnesota for all contracts executed
and all causes of action that arose before the end of any period for which a
corporation failed to file a required report may be precluded or delayed.
Insofar as my opinion may relate to the valid, binding and enforceable character
of any agreement under Minnesota law or in a Minnesota court, I have assumed
that any party seeking to enforce such agreement has at all times been, and will
continue at all times to be, exempt from the requirement of filing a Notice of
Business Activities Report or, if not exempt, has duly filed, and will continue
to duly file, all Notice of Business Activities Reports.
This opinion is being furnished to you solely for the benefit of the
Agents and the Lenders under the Agreement and may not be relied upon by any
other person, or used for any other purpose, without my prior written consent.
Very truly yours,
Frank W. Bonvino
<PAGE>
EXHIBIT H
FORM OF OPINION OF SPECIAL COUNSEL
TO THE ADMINISTRATIVE AGENT
[Letterhead of Mayer, Brown & Platt]
________ __, 2000
Bank of America, N.A., as
Administrative Agent, and the
other financial institutions
which are parties to the Credit
Agreement referred to below
Re: INTERNATIONAL MULTIFOODS CORPORATION
Ladies and Gentlemen:
We have acted as special counsel to Bank of America, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent"), in
connection with the Credit Agreement (the "Credit Agreement") dated as of
October 24, 2000 among International Multifoods Corporation (the "Company"),
various financial institutions from time to time party thereto, SunTrust Bank,
as Syndication Agent, U.S. Bank National Association, as Documentation Agent,
and the Administrative Agent. Capitalized terms used herein and not otherwise
defined shall have the meanings attributed to them in the Credit Agreement.
In connection herewith, we have examined (i) counterparts of the
Credit Agreement executed by the Company, each of the Lenders and the
Administrative Agent; and (ii) the Notes issued by the Company on the date
hereof pursuant to the Credit Agreement (the "Notes"). In connection with such
examination, we have assumed the genuineness of all signatures, the authority of
the persons signing such documents and the authenticity of such documents. We
also have assumed, without any independent investigation, that (a) the Credit
Agreement and the Notes have been duly authorized, executed and delivered by
each of the parties thereto and (b) the Credit Agreement is the legal, valid and
binding obligation of each party thereto other than the Company, enforceable
against each such party in accordance with its terms.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that, under the laws of the State of Illinois:
<PAGE>
October 24, 2000
Page 2
(1) The Credit Agreement is the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance
with its terms.
(2) The Notes are the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms.
Our opinions are subject to the following qualifications:
(a) Our opinions are subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and to the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing.
(b) We express no opinion as to indemnification or contribution
obligations which contravene public policy.
(c) We express no opinion as to any provision of the Credit Agreement
purporting to convey rights to Persons other than parties to the Credit
Agreement.
(d) We express no opinion as to any waiver of (i) the right to a jury
trial, (ii) any objection to venue or (iii) any right to bring legal proceedings
in any court having jurisdiction.
(e) Our opinions are limited to the laws of the State of Illinois,
and we express no opinion as to the laws of any other jurisdiction.
This opinion letter is solely for the benefit of the addressees hereof
(and their respective successors and assigns) in connection with the
transactions contemplated by the Credit Agreement, and this opinion letter may
not be relied upon by any other Person or for any other purpose.
Very truly yours,
MAYER, BROWN & PLATT
RCB
-2-
<PAGE>
EXHIBIT I
FORM OF
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT AND
ACCEPTANCE") dated as of __________, ___is made between ______________________
(the "ASSIGNOR") and ______________________________(the "ASSIGNEE").
RECITALS
The Assignor is party to the Credit Agreement dated as of October 24,
2000 (as amended or otherwise modified from time to time, the "CREDIT
AGREEMENT") among International Multifoods Corporation (the "COMPANY"), SunTrust
Bank, as Syndication Agent, U.S. Bank National Association, as Documentation
Agent, and Bank of America, N.A., as Administrative Agent, and the several
financial institutions from time to time party thereto (including the Assignor,
the "LENDERS"). Terms defined in the Credit Agreement and not defined in this
Assignment and Acceptance are used herein as defined in the Credit Agreement.
The Assignor wishes to assign to the Assignee [part of the] [all]
rights and obligations of the Assignor under the Credit Agreement in respect of
the Committed Loans, the Commitment and the other rights and obligations of the
Assignor in connection therewith, and the Assignee wishes to accept assignment
of such rights and to assume such obligations from the Assignor, in each case on
the terms and subject to the conditions of this Assignment and Acceptance.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance), __% of the Assignor's Commitment,
together with a corresponding portion of the Assignor's outstanding Committed
Loans and all related rights, benefits, obligations, liabilities and indemnities
of the Assignor under and in connection with the Credit Agreement (all of the
foregoing being herein called the "ASSIGNED RIGHTS AND OBLIGATIONS").
<PAGE>
(b) With effect on and after the Effective Date (as defined in
SECTION 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification. The Assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender. It
is the intent of the parties hereto that the Assignor shall relinquish its
rights and be released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee; PROVIDED, HOWEVER,
that the Assignor shall not relinquish its rights under Article IV or Sections
11.4 or 11.5 of the Credit Agreement in respect of the Assigned Rights and
Obligations to the extent such rights relate to the time prior to the Effective
Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$__________ and the Assignor's Commitment will be $__________.
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's outstanding Committed Loans
will be $__________ and the Assignor's outstanding Committed Loans will be
$__________.
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in SECTION 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the principal amount of all outstanding and funded Loans and
participations included within the Assigned Rights and Obligations.
(b) The [Assignor] [Assignee] further agrees to pay to the
Administrative Agent a processing fee in the amount specified in Section 11.8(a)
of the Credit Agreement.
3. REALLOCATION OF PAYMENTS.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Assigned Rights and Obligations shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Rights and Obligations shall be for
the account of the Assignee. Each of the Assignor and the Assignee agrees that
it will hold in trust for the other party any interest, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding two sentences and pay to the other party any such amounts which it may
receive promptly upon receipt.
-2-
<PAGE>
4. INDEPENDENT CREDIT DECISION.
The Assignee (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, together with copies of
the most recent financial statements referred to in Section 7.3 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit and legal decisions in taking or not
taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective date
for this Assignment and Acceptance shall be __________, 2000 (the "EFFECTIVE
DATE"); PROVIDED that the following conditions precedent have been satisfied on
or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Administrative
Agent, if required for an effective assignment of the Assigned
Rights and Obligations by the Assignor to the Assignee under
Section 11.8(a) of the Credit Agreement, shall have been duly
obtained and shall be in full force and effect as of the
Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Acceptance; and
(iv) the processing fee referred to in SECTION 2(b) hereof
shall have been paid to the Administrative Agent.
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Administrative
Agent, for acknowledgment and consent by the Company and the Administrative
Agent, a Notice of Assignment substantially in the form attached hereto as
SCHEDULE 1.
[6. ADMINISTRATIVE AGENT. INCLUDE ONLY IF ASSIGNOR IS
ADMINISTRATIVE AGENT
(a) The Assignee hereby appoints and authorizes the Assignor to
take such action as Administrative Agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Administrative Agent
by the Lenders pursuant to the terms of the Credit Agreement.
-3-
<PAGE>
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Administrative Agent under the Credit
Agreement.]
7. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Company, or the performance or observance by the Company of any of its
obligations under the Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization
-4-
<PAGE>
and other laws of general application relating to or affecting creditors' rights
and to general equitable principles; and (iv) it is an Eligible Assignee.
8. FURTHER ASSURANCES.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Administrative Agent which may be
required in connection with the assignment and assumption contemplated hereby.
9. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Assignment
and Acceptance shall be in writing and signed by the parties hereto. No failure
or delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number
of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and
the Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in Chicago, Illinois over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Illinois State or Federal court. Each party to
this Assignment and Acceptance hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT 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 ASSIGNMENT AND
-5-
<PAGE>
ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN).
-6-
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By: _____________________________
Title: __________________________
Address: ________________________
[ASSIGNEE]
By: _____________________________
Title: __________________________
Address: ________________________
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<PAGE>
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
---------------, ----
Bank of America, N.A., as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Agency Management Services Illinois #69596
International Multifoods Corporation
110 Cheshire Lane
Suite 300
Minnetonka, MN 55305-1060
Attention: Treasurer
Ladies and Gentlemen:
We refer to the Credit Agreement, dated as of October 24, 2000 (as
amended or otherwise modified from time to time, the "CREDIT AGREEMENT"), among
International Multifoods Corporation (the "COMPANY"), various financial
institutions, SunTrust Bank, as Syndication Agent, U.S. Bank National
Association, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Terms defined in the Credit Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "ASSIGNOR") to _______________ (the
"ASSIGNEE") of [all][part of] the right, title and interest of the Assignor in
and to the Credit Agreement, (including, without limitation, [all][part of] the
right, title and interest of the Assignor in and to the Assignor's Commitment
and all outstanding Committed Loans of the Assignor pursuant to the Assignment
and Acceptance Agreement attached hereto (the "ASSIGNMENT AND ACCEPTANCE").
Before giving effect to such assignment (assuming no repayments, new fundings or
new issuances after ________), the Assignor's Pro Rata Share is _________% and
the outstanding principal amount of the Assignor's Committed Loans is
$___________. After giving effect to such assignment (assuming no repayments,
new fundings or new issuances after ________), the Assignor's Pro Rata Share is
_________%, the outstanding principal amount of the Assignor's Committed Loans
is $___________, the Assignee's Pro Rata Share is _________%, and the
outstanding principal amount of the Assignee's Committed Loans is $___________.
-8-
<PAGE>
2. The Assignee agrees that, upon receiving the consent, if
applicable, of the Administrative Agent and the Company to such assignment, the
Assignee will be bound by the terms of the Credit Agreement as fully and to the
same extent as if the Assignee were the Lender originally holding such interest
in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: __________________________
Address: ________________________________
__________________________
__________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
Telex (Answerback): ____________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and the Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
--------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
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<PAGE>
Title:
-----------------------------------
[NAME OF ASSIGNEE]
By:
--------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Title:
-----------------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
INTERNATIONAL MULTIFOODS CORPORATION
By:
----------------------------------
Its:
---------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Its:
---------------------------------
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<PAGE>
EXHIBIT J
FORM OF
REQUEST FOR INCREASE
---------------------------, ----
Bank of America, N.A., as
Administrative Agent
under the Credit Agreement
referred to below
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Agency Management Services Illinois #69596
Ladies/Gentlemen:
Reference is made to the Credit Agreement dated as of October 24, 2000
(as amended or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among International Multifoods Corporation, various financial institutions,
SunTrust Bank, as Syndication Agent, U.S. Bank National Association, as
Documentation Agent, and Bank of America, N.A., as Administrative Agent. Terms
used but not otherwise defined herein are used herein as defined in the Credit
Agreement.
In accordance with Section 2.16 of the Credit Agreement, the Company
hereby requests an increase in the Aggregate Commitment from $__________ to
$__________. Such increase shall be made by [increasing the Commitment of
____________ from $________ to $________] [adding _____________, an Eligible
Assignee, as a New Lender under the Credit Agreement with a Commitment of
$____________] as set forth in the letter attached hereto. Such increase shall
be effective three Business Days after the date on which the Administrative
Agent has received and accepted the applicable increase letter in the form of
Annex 1 hereto (in the case of an increase in the amount of the Commitment of an
existing Lender) or assumption letter in the form of Annex 2 hereto (in the case
of the addition of an Eligible Assignee as a new Lender) or such other date as
is agreed among the Company, the Administrative Agent and the [increasing] [new]
Lender.
The Company hereby certifies that as of the date hereof and the
effective date of the increase in the Aggregate Commitment pursuant hereto:
(a) attached hereto as Exhibit A is a true, complete and correct copy
of resolutions, duly adopted by the board of directors of the Company and
certified by [an Assistant Secretary] [the Secretary] of the Company, which
confirm that such increase has been authorized, and such resolutions have not
been amended, modified, rescinded or revoked since their adoption, and remain in
full force and effect;
<PAGE>
(b) all the representations and warranties contained in Article VI of
the Credit Agreement are true and correct on and as of such date with the same
effect as though made on such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they were true
and correct as of such earlier date); and
(c) no Event of Default or Unmatured Event of Default has occurred
and is continuing.
Very truly yours,
INTERNATIONAL MULTIFOODS CORPORATION
By:
-------------------------------------
Title:
-----------------------------------
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<PAGE>
ANNEX I TO EXHIBIT J
[Date]
Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Agency Management Services Illinois #69596
Ladies/Gentlemen:
Please refer to the letter dated ________, ____ from International
Multifoods Corporation (the "Company") requesting an increase in the Aggregate
Commitment from $__________ to $__________ pursuant to Section 2.16 of the
Credit Agreement dated as of October 24, 2000 (the "CREDIT AGREEMENT") among the
Company, the undersigned Lender, various financial institutions, SunTrust Bank,
as Syndication Agent, U.S. Bank National Association, as Documentation Agent,
and Bank of America, N.A., as Administrative Agent. Capitalized terms used but
not defined herein have the respective meanings set forth in the Credit
Agreement.
The undersigned hereby confirms that it has agreed to increase the
amount of its Commitment under the Credit Agreement from $__________ to
$__________ effective on the date which is three Business Days after the
acceptance hereof by the Administrative Agent or on such other date as may be
agreed among the Company, the Administrative Agent and the undersigned.
Very truly yours,
[NAME OF INCREASING LENDER]
By:
--------------------------------------
Title:
-----------------------------------
Accepted as of
---------, ----
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Title:
-------------------------------
-3-
<PAGE>
ANNEX II TO EXHIBIT J
[Date]
Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Agency Management Services Illinois #69596
Ladies/Gentlemen:
Please refer to the letter dated ________, ____ from International
Multifoods Corporation (the "COMPANY") requesting an increase in the Aggregate
Commitment from $__________ to $__________ pursuant to Section 2.16 of the
Credit Agreement dated as of October 24, 2000 (the "CREDIT AGREEMENT") among the
Company, various financial institutions, SunTrust Bank, as Syndication Agent,
U.S. Bank National Association, as Documentation Agent, and Bank of America,
N.A., as Administrative Agent. Capitalized terms used but not defined herein
have the respective meanings set forth in the Credit Agreement.
The undersigned hereby confirms that it has agreed to become a Lender
under the Credit Agreement with a Commitment of $__________ effective on the
date which is three Business Days after the acceptance hereof, and consent
hereto, by the Administrative Agent or on such other date as may be agreed among
the Company, the Administrative Agent and the undersigned.
The undersigned (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, together with copies of
the most recent financial statements delivered by Company pursuant to the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to become a Lender under
the Credit Agreement; (b) acknowledges that it meets the requirements of an
Eligible Assignee and (c) agrees that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit and legal decisions in taking or not taking action under the
Credit Agreement.
The undersigned represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this letter and to become a Lender under
the Credit Agreement; and (ii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution and delivery of this letter and the performance of its
obligations as a Lender under the Credit Agreement.
The undersigned agrees to execute and deliver such other instruments,
and take such other actions, as the Administrative Agent may reasonably request
in connection with the transactions contemplated by this letter.
The following administrative details apply to the undersigned:
(A) Notice Address:
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<PAGE>
Legal name: _____________________________
Address: _____________________________
_________________________________
_________________________________
Attention: _____________________________
Telephone: (___) _______________________
Facsimile: (___) _______________________
(B) Payment Instructions:
Account No.: ___________________________
At: _________________________________
_________________________________
_________________________________
Reference: ___________________________
Attention: ___________________________
The undersigned acknowledges and agrees that, on the date on which the
undersigned becomes a Lender under the Credit Agreement as set forth in the
second paragraph hereof, the undersigned will be bound by the terms of the
Credit Agreement as fully and to the same extent as if the undersigned were an
original Lender under the Credit Agreement.
Very truly yours,
[NAME OF NEW LENDER]
By:
--------------------------------------
Title:
-----------------------------------
Accepted and consented to as of
---------, ----
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------------
Title:
-------------------------------
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<PAGE>
EXHIBIT K
FORM OF EXTENSION REQUEST
Bank of America, N.A.,
as Administrative Agent
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Agency Management Services Illinois #69596
Reference is made to the Credit Agreement dated as of October 24, 2000
(as amended or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among International Multifoods Corporation, various financial institutions,
SunTrust Bank, as Syndication Agent, U.S. Bank National Association, as
Documentation Agent, and Bank of America, N.A., as Administrative Agent. Terms
used but not otherwise defined herein are used herein as defined in the Credit
Agreement.
This is an Extension Request pursuant to Section 2.17 of the Credit
Agreement requesting an extension of the Termination Date to [INSERT REQUESTED
TERMINATION DATE]. Please transmit a copy of this Extension Request to each of
the Lenders.
Very truly yours,
INTERNATIONAL MULTIFOODS
CORPORATION
By:
--------------------------------------
Title:
