UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 31, 1995
Interstate Bakeries Corporation
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
1-11165 43-1470322
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(Commission File Number) (IRS Employer Identification No.)
12 East Armour Boulevard, Kansas City, Missouri 64111
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (816) 561-6600
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
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On May 31, 1995, Interstate Brands Corporation, a wholly owned
subsidiary of Interstate Bakeries Corporation entered into a credit agreement
(the "Credit Agreement") with the Lenders and Issuing Bank (as defined
therein) and Chemical Bank, as agent for the Lenders and the Issuing Bank,
which provides for a credit facility to be provided to Brands by a group of
banks.
A copy of the Credit Agreement is filed herewith as Exhibit 1.
The Exhibit is incorporated herein by this reference.
<PAGE>
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
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Exhibit Description
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1 Credit Agreement, dated May 31, 1995, signed by Interstate
Brands Corporation, Chemical Bank, the Lenders and Issuing
Bank (as defined therein).
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERSTATE BAKERIES CORPORATION
/s/ Charles A. Sullivan
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Charles A. Sullivan, Chairman
and Chief Executive Officer
Date: June 7, 1995
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
1 Credit Agreement, dated May 31, 1995,
signed by Interstate Brands Corporation,
Chemical Bank, the Lenders and Issuing Bank
(as defined therein).
EXECUTION COPY
$650,000,000
CREDIT AGREEMENT
Dated as of May 31, 1995
Among
INTERSTATE BRANDS CORPORATION
as Borrower
THE LENDERS AND ISSUING BANKS NAMED HEREIN
and
CHEMICAL BANK
as Agent
<PAGE>
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Terms Generally . . . . . . . . . . . . . . . . . . 21
ARTICLE II. THE CREDITS
SECTION 2.01. The Term Loan Facility. . . . . . . . . . . . . . . 22
SECTION 2.02. Term Loans. . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.03. Repayment of the Term Loans . . . . . . . . . . . . 23
SECTION 2.04. The Revolving Credit Facility . . . . . . . . . . . 24
SECTION 2.05. Revolving Loans . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Notice of Borrowings of Revolving
Loans . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.07. Competitive Bid Procedures. . . . . . . . . . . . . 26
SECTION 2.08. Notes . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.09. Repayment of Revolving Credit
Facility Loans. . . . . . . . . . . . . . . . . . . 30
SECTION 2.10. Fees. . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.11. Interest on Loans . . . . . . . . . . . . . . . . . 32
SECTION 2.12. Default Interest. . . . . . . . . . . . . . . . . . 33
SECTION 2.13. Alternate Rate of Interest. . . . . . . . . . . . . 33
SECTION 2.14. Reduction or Cancellation of
Commitments . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.15. Conversion and Continuation of
Borrowings of Revolving Loans . . . . . . . . . . . 34
SECTION 2.16. Conversion and Continuation of
Term Loans. . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.17. Voluntary Prepayments . . . . . . . . . . . . . . . 37
SECTION 2.18. Mandatory Prepayments of Revolving
Loans . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.19. Mandatory Prepayments of Term Loans . . . . . . . . 37
SECTION 2.20. Letters of Credit . . . . . . . . . . . . . . . . . 38
SECTION 2.21. Additional Interest on Eurodollar
Loans; Reserve Requirements; Change
in Circumstances. . . . . . . . . . . . . . . . . . 42
SECTION 2.22. Change in Legality. . . . . . . . . . . . . . . . . 44
SECTION 2.23. Indemnity . . . . . . . . . . . . . . . . . . . . . 45
SECTION 2.24. Pro Rata Treatment. . . . . . . . . . . . . . . . . 46
SECTION 2.25. Sharing of Setoffs. . . . . . . . . . . . . . . . . 47
SECTION 2.26. Payments. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.27. Taxes . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 2.28. Duty to Mitigate Additional Costs,
Reductions in Rate of Return and Taxes. . . . . . . 51
SECTION 2.29. Assignment of Commitments Under
Certain Circumstances . . . . . . . . . . . . . . . 51
<PAGE>
ARTICLE III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers. . . . . . . . . . . . . . . . 51
SECTION 3.02. Authorization . . . . . . . . . . . . . . . . . . . 52
SECTION 3.03. Enforceability. . . . . . . . . . . . . . . . . . . 52
SECTION 3.04. Governmental Approvals. . . . . . . . . . . . . . . 52
SECTION 3.05. Financial Statements. . . . . . . . . . . . . . . . 53
SECTION 3.06. Title to Properties; Possession
Under Leases. . . . . . . . . . . . . . . . . . . . 53
SECTION 3.07. Subsidiaries. . . . . . . . . . . . . . . . . . . . 53
SECTION 3.08. Litigation; Compliance with Laws. . . . . . . . . . 54
SECTION 3.09. Agreements. . . . . . . . . . . . . . . . . . . . . 54
SECTION 3.10. Federal Reserve Regulations . . . . . . . . . . . . 54
SECTION 3.11. Investment Company Act; Public
Utility Holding Company Act . . . . . . . . . . . . 55
SECTION 3.12. Tax Returns . . . . . . . . . . . . . . . . . . . . 55
SECTION 3.13. No Material Misstatements . . . . . . . . . . . . . 55
SECTION 3.14. Employee Benefit Plans. . . . . . . . . . . . . . . 55
SECTION 3.15. Environmental and Safety Matters. . . . . . . . . . 55
ARTICLE IV. CONDITIONS PRECEDENT
SECTION 4.01. All Credit Events . . . . . . . . . . . . . . . . . 57
SECTION 4.02. First Credit Event. . . . . . . . . . . . . . . . . 57
SECTION 4.03. Execution of the Agreement. . . . . . . . . . . . . 59
SECTION 4.04. Termination of the Agreement. . . . . . . . . . . . 60
ARTICLE V. AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties. . . . . . . . 60
SECTION 5.02. Insurance . . . . . . . . . . . . . . . . . . . . . 60
SECTION 5.03. Obligations and Taxes . . . . . . . . . . . . . . . 61
SECTION 5.04. Financial Statements, Reports, etc. . . . . . . . . 61
SECTION 5.05. Litigation and Other Notices. . . . . . . . . . . . 63
SECTION 5.06. ERISA . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 5.07. Maintaining Records; Access to
Properties and Inspections. . . . . . . . . . . . . 64
SECTION 5.08. Use of Proceeds . . . . . . . . . . . . . . . . . . 64
SECTION 5.09. Assets of the Borrower. . . . . . . . . . . . . . . 64
ARTICLE VI. NEGATIVE COVENANTS
SECTION 6.01. Liens . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.02. Sale and Lease-Back Transactions. . . . . . . . . . 67
SECTION 6.03. Investments, Loans and Advances . . . . . . . . . . 67
SECTION 6.04. Mergers, Consolidations, Sales of
Assets and Acquisitions . . . . . . . . . . . . . . 68
SECTION 6.05. Dividends and Distributions . . . . . . . . . . . . 69
SECTION 6.06. Transactions with Affiliates. . . . . . . . . . . . 69
SECTION 6.07. Minimum Consolidated Net Worth. . . . . . . . . . . 69
SECTION 6.08. Limitation on Indebtedness. . . . . . . . . . . . . 70
SECTION 6.09. Fiscal Year . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.10. Amendments to Senior Note Agreement . . . . . . . . 70
SECTION 6.11. Subsidiary Stock and Indebtedness . . . . . . . . . 70
SECTION 6.12. Interest Coverage Ratio . . . . . . . . . . . . . . 71
<PAGE>
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . 71
SECTION 7.02. Remedies. . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VIII. THE AGENT
SECTION 8.02. Nature of Duties. . . . . . . . . . . . . . . . . . 76
SECTION 8.03. Rights, Exculpation, Etc. . . . . . . . . . . . . . 76
SECTION 8.04. Successor Agent; Resignation of
the Agent . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.05. The Agent Individually. . . . . . . . . . . . . . . 77
SECTION 8.06. Indemnification . . . . . . . . . . . . . . . . . . 78
SECTION 8.07. Independent Credit Analysis . . . . . . . . . . . . 78
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 9.02. Survival of Agreement . . . . . . . . . . . . . . . 79
SECTION 9.03. Binding Effect. . . . . . . . . . . . . . . . . . . 79
SECTION 9.04. Successors and Assigns. . . . . . . . . . . . . . . 80
SECTION 9.05. Expenses; Indemnity . . . . . . . . . . . . . . . . 83
SECTION 9.06. Right of Setoff . . . . . . . . . . . . . . . . . . 85
SECTION 9.07. Applicable Law. . . . . . . . . . . . . . . . . . . 85
SECTION 9.08. Waivers; Amendment. . . . . . . . . . . . . . . . . 85
SECTION 9.09. Interest Rate Limitation. . . . . . . . . . . . . . 86
SECTION 9.10. Confidentiality . . . . . . . . . . . . . . . . . . 87
SECTION 9.11. Entire Agreement. . . . . . . . . . . . . . . . . . 87
SECTION 9.12. Waiver of Jury Trial. . . . . . . . . . . . . . . . 88
SECTION 9.13. Severability. . . . . . . . . . . . . . . . . . . . 88
SECTION 9.14. Counterparts. . . . . . . . . . . . . . . . . . . . 88
SECTION 9.15. Headings. . . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.16. Jurisdiction; Consent to Service
of Process. . . . . . . . . . . . . . . . . . . . . 88
SECTION 9.17. Defaulting Lender . . . . . . . . . . . . . . . . . 89
SECTION 9.18. Issuing Banks . . . . . . . . . . . . . . . . . . . 91
<PAGE>
EXHIBITS
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Competitive Bid Accept/Reject Letter
Exhibit D -- Form of Issuing Bank Agreement
Exhibit E -- Form of Notice of Borrowing of Revolving Loans
Exhibit F -- Form of Notice of Competitive Bid Borrowing
Exhibit G -- Form of Notice of Competitive Bid Request
Exhibit H -- Form of Competitive Bid
Exhibit I-1 -- Form of Term Loan Note
Exhibit I-2 -- Form of Revolving Loan Note
Exhibit I-3 -- Form of Competitive Bid Note
Exhibit J-1 -- Form of Notice of Conversion/ Continuation of
Revolving Loans
Exhibit J-2 -- Form of Notice of Conversion/ Continuation of
Term Loans
Exhibit K -- List of Closing Documents
Exhibit L -- Form of Opinion of Counsel for the Borrower
Exhibit M -- Form of Opinion of General Counsel of the
Borrower
SCHEDULES
Schedule 1.01 -- Existing Indebtedness
Schedule 2.01 -- Commitments
Schedule 2.20 -- Existing Facility Letters of Credit
Schedule 3.04 -- Governmental Approvals
Schedule 3.07 -- Subsidiaries of Borrower
Schedule 3.08 -- Litigation
Schedule 3.15 -- Environmental and Safety Matters
Schedule 6.01 -- Liens
Schedule 6.03 -- Loans and Investments
Schedule 6.11 -- Preferred Stock of Subsidiaries
<PAGE>
This CREDIT AGREEMENT dated as of May 31, 1995 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, this
"Agreement") is entered into among INTERSTATE BRANDS CORPORATION, a Delaware
corporation (the "Borrower"); the "Lenders" and "Issuing Banks" (each as
defined herein); and CHEMICAL BANK, a New York banking corporation ("Chemical
Bank"), as agent for the Lenders and the Issuing Banks (in such capacity, the
"Agent").
In accordance with the terms and subject to the conditions set
forth in this Agreement, the Borrower (i) has requested the Term Lenders to
extend credit to the Borrower on a term basis on the Closing Date in the
aggregate principal amount of the Aggregate Term Loan Commitments hereunder,
and (ii) has requested the Revolving Credit Lenders to extend credit to the
Borrower to enable the Borrower to borrow on a revolving basis, at any time
and from time to time from and including the Closing Date, an aggregate
principal amount at any time outstanding not in excess of the Aggregate
Revolving Credit Commitments hereunder.
Accordingly, the Borrower, the Lenders, the Issuing Banks and the
Agent agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Revolving Loan or any portion of a Term
Loan bearing interest at a rate determined by reference to the Alternate Base
Rate in accordance with the provisions of Article II.
"Acquisition" shall mean the acquisition of all of the capital
stock of CBC by Bakeries and the Borrower in accordance with the terms of the
Purchase Agreement, and the contribution of all of such capital stock acquired
by Bakeries to the Borrower on the Closing Date.
"Acquisition Documents" shall mean the Purchase Agreement, the
Ralston Shareholder Agreement and each of the other documents executed or
obtained in connection with the Acquisition and/or the transactions
contemplated in connection therewith.
"Adjusted Consolidated Net Income" shall mean, with reference to
any period, the net income (or deficit) of the Borrower and Subsidiaries for
such period (taken as a cumulative whole), all determined in accordance with
GAAP on a consolidated basis, after eliminating all intercompany transactions
and after deducting portions of income properly attributable to the minority
interests, if any, in the stock and surplus of the Subsidiaries and the
portions of CBC's income properly attributable to the Sellers for periods
preceding the Acquisition; provided that there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date such Person
becomes a Subsidiary or is merged into or consolidated with the Borrower or a
Subsidiary, (b) the income (or deficit) of any Person (other than a
Subsidiary) in which the Borrower or any Subsidiary has an ownership interest,
except to the extent that any such income has been actually received by the
Borrower or such Subsidiary in the form of dividends or similar distributions,
(c) the undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of its charter or any
agreement permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable
to such Subsidiary, (d) any gain or loss arising from the acquisition of any
securities, or the extinguishment, under GAAP, of any Indebtedness, of the
Borrower or any Subsidiary, (e) in the case of a successor to the Borrower by
consolidation or merger or as a transferee of its assets, any earnings (or
deficit) of the successor corporation prior to such consolidation, merger or
transfer of assets, and (f) any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
"Agent" shall have the meaning given to such term in the preamble
to this Agreement.
"Agent Fee Letter" shall mean the Administrative Agent Fee Letter
dated January 23, 1995, from the Borrower to the Agent.
"Aggregate LC Commitments" shall mean the aggregate amount of the
LC Commitments of all Revolving Credit Lenders, which as of the date hereof is
$150,000,000.
"Aggregate Revolving Credit Commitments" shall mean the aggregate
amount of the Revolving Credit Commitments of all Revolving Credit Lenders,
which as of the date hereof is $425,000,000 and which may be reduced from time
to time pursuant to Section 2.14.
"Aggregate Term Loan Commitments" shall mean the aggregate amount
of the Term Loan Commitments of all Term Lenders, which as of the date hereof
is $225,000,000.
"Agreement" shall have the meaning given to such term in the
preamble hereto.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. "Base CD Rate" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently
estimated by Chemical Bank as the then current net annual assessment rate that
will be employed in determining amounts payable by the Agent to the Federal
Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in dollars at Chemical
Bank's domestic offices. "Statutory Reserves" shall mean a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any
other banking authority to which Chemical Bank is subject for new negotiable
nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months. Such reserve percentages shall include
those imposed pursuant to Regulation D of the Board. Statutory Reserves shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage. "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for the day of such transactions received
by the Agent from three Federal funds brokers of recognized standing selected
by it. If for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Base CD Rate or the Federal Funds Effective Rate or both for any reason,
including the inability or failure of the Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Facility Fee" shall mean for any date the applicable
number of basis points (expressed as a percentage) set forth below based on
the EBITDA/Interest Coverage as of the last day of the Borrower's most
recently ended period of four consecutive fiscal quarters:
EBITDA/Interest Coverage Applicable Facility Fee
(in basis points)
greater than 8.0 to 1.0. . . . . . . .15.0
greater than 6.0 to 1.0 but less
than or equal to 8.0 to 1.0. . . . .20.0
greater than 5.0 to 1.0 but less
than or equal to 6.0 to 1.0. . . . .22.5
greater than 4.0 to 1.0 but less
than or equal to 5.0 to 1.0. . . . .25.0
greater than 3.5 to 1.0 but less
than or equal to 4.0 to 1.0. . . . .37.5
less than or equal to 3.5 to 1.0 . . .50.0
For purposes of the foregoing, the Applicable Facility Fee at any
time shall be determined by reference to the EBITDA/Interest Coverage as of
the last day of the Borrower's most recently ended fiscal quarter and any
change in the Applicable Facility Fee shall become effective for all purposes
on and after the date of delivery to the Agent of the certificate and
applicable financial statements described in Sections 5.04(a)-(c) relating to
such fiscal quarter; provided, however, that until the first such certificate
and financial statements have been delivered to the Agent, the Applicable
Facility Fee shall be 25.0 basis points. Notwithstanding the foregoing, at
any time during which the Borrower has failed to deliver the certificate and
applicable financial statements described in Sections 5.04(a)-(c) with respect
to a fiscal quarter in accordance with the provisions thereof, for more than
five days after such certificate and the applicable financial statements are
due, the EBITDA/Interest Coverage shall be deemed, solely for the purposes of
this definition, to be less than 3.5 to 1.0.
"Applicable Revolving Credit Eurodollar Margin" shall mean for any
date, with respect to the Revolving Loans comprising any Eurodollar Borrowing,
the applicable margin set forth below based on the EBITDA/Interest Coverage as
of the last day of the Borrower's most recently ended period of four
consecutive fiscal quarters:
Applicable Revolving
EBITDA/Interest Coverage Credit Eurodollar Margin
(in basis points)
greater than 8.0 to 1.0 20.0
greater than 6.0 to 1.0 but less
than or equal to 8.0 to 1.0 35.0
greater than 5.0 to 1.0 but less
than or equal to 6.0 to 1.0 40.0
greater than 4.0 to 1.0 but less
than or equal to 5.0 to 1.0 50.0
greater than 3.5 to 1.0 but less
than or equal to 4.0 to 1.0 62.5
less than or equal to 3.5 to 1.0 75.0
For purposes of the foregoing, the Applicable Revolving Credit
Eurodollar Margin at any time shall be determined by reference to the
EBITDA/Interest Coverage as of the last day of the Borrower's most recently
ended fiscal quarter and any change in the Applicable Revolving Credit
Eurodollar Margin shall become effective for all purposes on and after the
date of delivery to the Agent of the certificate and applicable financial
statements described in Sections 5.04(a)-(c) relating to such fiscal quarter;
provided, however, that until the first such certificate and financial
statements have been delivered to the Agent, the Applicable Revolving Credit
Eurodollar Margin shall be 50.0 basis points. Notwithstanding the foregoing,
at any time during which the Borrower has failed to deliver the certificate
and applicable financial statements described in Sections 5.04(a)-(c) with
respect to a fiscal quarter in accordance with the provisions thereof, for
more than five days after such certificate and the applicable financial
statements are due, the EBITDA/Interest Coverage shall be deemed, solely for
the purposes of this definition, to be less than 3.5 to 1.0.
"Applicable Term Loan Eurodollar Margin" shall mean for any date,
with respect to the Term Loans that are Eurodollar Loans, the applicable
margin set forth below based on the EBITDA/Interest Coverage as of the last
day of the Borrower's most recently ended period of four consecutive fiscal
quarters:
Applicable Term Loan
EBITDA/Interest Coverage Eurodollar Margin
(in basis points)
greater than 8.0 to 1.0 35.0
greater than 6.0 to 1.0 but less
than or equal to 8.0 to 1.0 55.0
greater than 5.0 to 1.0 but less
than or equal to 6.0 to 1.0 62.5
greater than 4.0 to 1.0 but less
than or equal to 5.0 to 1.0 75.0
greater than 3.5 to 1.0 but less
than or equal to 4.0 to 1.0 100.00
less than or equal to 3.5 to 1.0 125.00
For purposes of the foregoing, the Applicable Term Loan Eurodollar
Margin at any time shall be determined by reference to the EBITDA/Interest
Coverage as of the last day of the Borrower's most recently ended fiscal
quarter and any change in the Applicable Term Loan Eurodollar Margin shall
become effective for all purposes on and after the date of delivery to the
Agent of the certificate and applicable financial statements described in
Sections 5.04(a)-(c) relating to such fiscal quarter; provided, however, that
until the first such certificate and financial statements have been delivered
to the Agent, the Applicable Term Loan Eurodollar Margin shall be 75.0 basis
points. Notwithstanding the foregoing, at any time during which the Borrower
has failed to deliver the certificate and applicable financial statements
described in Sections 5.04(a)-(c) with respect to a fiscal quarter in
accordance with the provisions thereof, for more than five days after such
certificate and the applicable financial statements are due, the
EBITDA/Interest Coverage shall be deemed, solely for the purposes of this
definition, to be less than 3.5 to 1.0.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee, approved in
accordance with Section 9.04 and accepted by the Agent, in the form of Exhibit
B or such other form as shall be approved by the Agent.
"Attributable Debt" shall mean, in connection with a Sale and
Lease-Back Transaction, the present value (discounted in accordance with GAAP
at the debt rate implied in the lease) of the obligations of the lessee for
rental payments during the term of the lease.
"Bakeries" shall mean Interstate Bakeries Corporation, a Delaware
corporation and the owner, beneficially and of record, of all the issued and
outstanding common stock of the Borrower.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean a Revolving Loan Borrowing or a Competitive
Bid Borrowing.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Lease" shall mean any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, the obligations with respect to which are required to be classified
and accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of which obligations
at any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Lease Obligations" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any Capital
Lease.
"CBC" shall mean Continental Baking Company, a Delaware
corporation.
A "Change in Control" shall be deemed to have occurred if (a) any
Person (other than Bakeries) or group (within the meaning of Rule 13d-5 of the
Securities and Exchange Commission as in effect on the date hereof) shall own,
directly or indirectly, beneficially or of record, shares representing more
than 50% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of Bakeries or the Borrower; or (b) a change shall
occur during any period in the Board of Directors of Bakeries or the Borrower
in which the individuals who constituted the Board of Directors of Bakeries or
the Borrower at the beginning of such period (together with any other director
whose election by the Board of Directors of Bakeries or the Borrower or whose
nomination for election by the stockholders of Bakeries or the Borrower was
approved by a vote of at least two-thirds of the directors then in office who
either were directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors of Bakeries or the Borrower then in
office.
"Closing Date" shall mean the date designated by the Borrower
pursuant to Section 4.02(e) as the date upon which, subject to the
satisfaction of all conditions precedent contained in Article IV, the Term
Loans shall be funded. The Closing Date shall occur not later than August 31,
1995, unless otherwise agreed to by all of the parties hereto.
"Code" shall mean the Internal Revenue Code of 1986, as the same
may be amended from time to time.
"Commitment" shall mean each Lender's Revolving Credit Commitment,
LC Commitment or Term Loan Commitment, and "Commitments", when used in respect
of any Lender, shall mean such Lender's Revolving Credit Commitment, LC
Commitment and/or Term Loan Commitment.
"Competitive Bid" shall mean an offer by a Revolving Credit Lender
to make a Competitive Bid Loan pursuant to Section 2.07.
"Competitive Bid Accept/Reject Letter" shall mean a notification
made by the Borrower pursuant to Section 2.07 in the form of Exhibit C.
"Competitive Bid Borrowing" shall mean a borrowing consisting of a
Competitive Bid Loan or concurrent Competitive Bid Loans from the Revolving
Credit Lender or Revolving Credit Lenders whose Competitive Bids for such
Borrowing have been accepted by the Borrower under the bidding procedure
described in Section 2.07.
"Competitive Bid Loan" shall mean a Loan from a Revolving Credit
Lender to the Borrower made pursuant to the bidding procedures set forth in
Section 2.07. Each Competitive Bid Loan shall be a Eurodollar Loan bearing
interest at the LIBO Rate plus the Spread applicable thereto or a Fixed Rate
Loan.
"Competitive Bid Note" shall have the meaning given to such term
in Section 2.08.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
by a Revolving Credit Lender pursuant to Section 2.07 (i) in the case of a
Eurodollar Loan, the LIBO Rate plus the Spread, and (ii) in the case of a
Fixed Rate Loan, the fixed rate of interest offered by the Revolving Credit
Lender making such Competitive Bid.
"Consolidated Cash Flow From Operations" shall mean, for any
period, Adjusted Consolidated Net Income for such period plus the aggregate
amount deducted in determining such Adjusted Consolidated Net Income in
respect of the following, each determined in accordance with GAAP: (i)
Consolidated Interest Expense, (ii) income taxes, (iii) depreciation,
depletion and amortization, (iv) other non-cash charges and (v) cash charges
for non-recurring or extraordinary items; provided that the amount of such
cash charges for non-recurring or extraordinary items so added to Adjusted
Consolidated Net Income shall not exceed a cumulative amount of $25,000,000
from and after the Closing Date.
"Consolidated Interest Expense" shall mean, for any period, the
gross interest expense of the Borrower and its Subsidiaries computed on a
consolidated basis in accordance with GAAP, including, without limitation,
amortization of debt discounts and the portion of any Capital Lease Obligation
allocable to interest expense; provided that there shall be excluded from
Consolidated Interest Expense deferred amortization costs associated with the
Acquisition.
"Consolidated Long-Term Capitalization" shall mean the
consolidated Funded Debt of the Borrower plus Consolidated Net Worth,
determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the
aggregate net income (or net deficit) of the Borrower and the Subsidiaries for
such period computed on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, on a
consolidated basis for the Borrower and the Subsidiaries, the sum at such date
of common and preferred stock (taken at par or stated value, as applicable),
paid-in capital and retained earnings, all determined in accordance with GAAP.
"Continental Baking Group" shall mean the businesses of CBC as
defined in the Restated Articles of Incorporation of Ralston.
"Control" shall mean the direct or indirect possession of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning given such term in Article
IV.
"Documentation Completion Date" shall mean the date as of which
this Agreement is executed by all of the parties hereto.
"dollars" or "$" shall mean lawful money of the United States of
America.
"EBITDA/Interest Coverage" shall mean the ratio of Consolidated
Cash Flow from Operations to Consolidated Interest Expense for any period of
four consecutive fiscal quarters.
"Eligible Assignee" shall mean (a) a commercial bank having total
assets in excess of $2,000,000,000, (b) a savings and loan association or a
savings bank organized under the laws of the United States or any state
thereof and having a net worth of at least $300,000,000 computed in accordance
with GAAP, (c) a finance company, insurance company or other financial
institution or fund that is regularly engaged in making, purchasing or
investing in loans and has total assets in excess of $300,000,000 or (d) an
Affiliate of any Lender.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member
and which is treated as a single employer under Section 414 of the Code, which
from and after the Closing Date shall include CBC.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Revolving Credit Facility Loan or
any portion of the Term Loans bearing interest at a rate determined by
reference to the LIBO Rate in accordance with the provisions of Article II.
"Event of Default" shall have the meaning given to such term in
Article VII.
"Excess Cash" shall mean, for any period, Adjusted Consolidated
Net Income plus depreciation plus amortization plus or minus changes in
working capital (but excluding changes in cash, cash equivalents, short-term
investments, and the current portion of long term debt) plus Net Proceeds from
any asset disposition (to the extent not included in Adjusted Consolidated Net
Income) minus capital expenditures (other than capital expenditures made with
insurance proceeds) minus scheduled installments paid on the Term Loans minus
scheduled installments paid on the Senior Notes minus scheduled installments
paid on any other Indebtedness existing as of the Closing Date, which existing
Indebtedness shall be listed on Schedule 1.01 hereto, to be delivered to the
Agent on or before the Closing Date, each of the foregoing items to be
computed on a consolidated basis for the Borrower and the Subsidiaries;
provided, that for each such period the Borrower may exclude from Excess Cash
the Net Proceeds from any asset disposition received in such period, provided
that the amount of all such Net Proceeds so excluded shall not exceed
$25,000,000 in the aggregate for all such periods.
"Existing Credit Arrangement" shall mean the Credit Agreement
dated as of November 12, 1993 among the Borrower, the financial institutions
and issuing banks from time to time party thereto and Chemical Bank, as agent.
"Facilities" shall mean the Term Loan Facility, the Letter of
Credit Facility and the Revolving Credit Facility.
"Facility Fee" shall have the meaning given to such term in
Section 2.10.
"Federal Funds Effective Rate" shall have the meaning given to
such term in the definition of "Alternate Base Rate".
"Fees" shall mean the Facility Fees, the Term Facility Fees, the
Issuing Bank Fees and the LC Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer or controller of
such corporation.
"Fixed Rate Loan" shall mean any Competitive Bid Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Revolving Credit
Lender making such Loan in its Competitive Bid.
"Funded Debt" shall mean (a) all Indebtedness, including, without
limitation, all Revolving Credit Facility Loans and all Term Loans hereunder,
that has a final maturity, or that is extendible or renewable at the option of
the obligor to a date, one year or more after the date on which such
Indebtedness is incurred excluding all principal payments in respect thereof
required to be made within one year from the date as of which Funded Debt is
being determined, and (b) all Guarantees of Funded Debt of others.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" when used with respect to any Person shall mean the
incurrence of any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (b) to
purchase property, securities or services for the purpose of assuring the
owner of such Indebtedness of the payment of such Indebtedness or (c) to
maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term "Guarantee"
shall not include endorsements of items by any Person for collection or
deposit in the ordinary course of business.
"Indebtedness" as applied to any Person shall mean (without
duplication) (a) any indebtedness for borrowed money which such Person has
directly or indirectly created, incurred or assumed, including, without
limitation, Capital Lease Obligations of such Person, (b) any indebtedness
incurred other than in the ordinary course of business, whether or not for
borrowed money, secured by any Lien in respect of property owned by such
Person, whether or not such Person has assumed or become liable for the
payment of such indebtedness, (c) any indebtedness, whether or not for
borrowed money, with respect to which such Person has become directly or
indirectly liable and which represents or has been incurred to finance the
purchase price (or a portion thereof) of any property or services or business
acquired by such Person, whether by purchase, consolidation, merger or
otherwise, (d) any indebtedness of the character referred to in clauses (a),
(b) or (c) of this definition deemed to be extinguished under generally
accepted accounting principles but for which such Person remains legally
liable and (e) any indebtedness of any other Person of the character referred
to in subdivision (a), (b), (c) or (d) of this definition with respect to
which the Person whose Indebtedness is being determined has become liable by
way of a Guarantee, including, without limitation, any such indebtedness of
any partnership in which such Person is a general partner.
"Indemnitee" shall have the meaning given to such term in Section
9.05(b).
"Information" shall have the meaning given to such term in Section
9.10(a).
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to such Loan and, in the case of a
Eurodollar Loan with an Interest Period of more than three months' duration,
each day that would have been an Interest Payment Date had successive Interest
Periods of three months' duration been applicable to such Eurodollar Loan.
"Interest Period" shall mean (a) as to any Eurodollar Loan, the
period commencing on the date of such Eurodollar Loan or on the last day of
the immediately preceding Interest Period applicable to such Eurodollar Loan,
as the case may be, and ending on the numerically corresponding day (or, if
there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect (or as
the Borrower may be deemed to elect), (b) as to any ABR Loan, the period
commencing on the date of such ABR Loan or on the last day of the immediately
preceding Interest Period applicable to such ABR Loan, as the case may be, and
ending on the earlier of (i) the next succeeding March 31, June 30, September
30 or December 31, and (ii) the Maturity Date, and (c) in the case of a Fixed
Rate Loan, a period commencing on the date of such Fixed Rate Loan and ending
on the date specified in the Competitive Bid in which the offer to make such
Fixed Rate Loan was extended and accepted pursuant to Section 2.07, which
shall not be earlier than 7 days after the date, or later than 180 days after
the date, that such Fixed Rate Loan was made (but in no event after the
Maturity Date); provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a Eurodollar Loan only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period
to but excluding the last day of such Interest Period.
"Investments" shall have the meaning given to such term in Section
6.03.
"Issuing Bank" shall mean any Revolving Credit Lender designated
as an Issuing Bank in an Issuing Bank Agreement executed by such Revolving
Credit Lender, the Borrower and the Agent.
"Issuing Bank Agreement" shall mean an agreement substantially in
the form of Exhibit D executed by an Issuing Bank, the Borrower and the Agent.
"Issuing Bank Fees" shall mean, as to any Issuing Bank, the fees
set forth in the applicable Issuing Bank Agreement.
"LC Commitment" shall mean, with respect to each Revolving Credit
Lender, the commitment of such Lender to acquire participations in Letters of
Credit hereunder, which commitment shall be determined by multiplying such
Lender's Revolver Pro Rata Share by the Aggregate LC Commitments, as the same
may be modified from time to time pursuant to Section 9.04.
"LC Disbursement" shall mean any payment or disbursement made by
an Issuing Bank under or pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit outstanding at such time
plus (b) the aggregate amount which has been drawn under Letters of Credit but
for which the applicable Issuing Bank or the Revolving Credit Lenders, as the
case may be, have not been reimbursed by the Borrower at such time.
"LC Fee" shall have the meaning given to such term in Section
2.10(c).
"Lender" shall mean, at any time, a financial institution that is
either set forth on the signature pages hereof or that has become a lender
pursuant to Section 9.04 and that, as of such time, remains a party hereto.
"Letters of Credit" shall mean letters of credit issued by an
Issuing Bank for the account of the Borrower pursuant to Section 2.20.
"Letter of Credit Facility" shall mean the letter of credit
facility established for Letters of Credit pursuant to Section 2.20.
"LIBO Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period, an interest rate per annum determined by the Agent to be
the rate per annum quoted by Chemical Bank (rounded upwards, if necessary, to
the next 1/16 of 1%) at which dollar deposits approximately equal in principal
amount (i) in the case of a Revolving Credit Facility Loan, to Chemical Bank's
Revolver Pro Rata Share of the Eurodollar Borrowing or (ii) in the case of the
Term Loans, Chemical Bank's Term Pro Rata Share of the Eurodollar Loan, in
either case for such Interest Period and for a maturity comparable to such
Interest Period are offered to the principal London office of Chemical Bank in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period; provided, that with respect to any Competitive Bid Borrowing,
the principal amount used to determine the "LIBO Rate" shall be determined as
above, whether or not Chemical Bank submits a Competitive Bid or Competitive
Bids in response to the Borrower's request for such Competitive Bid Borrowing.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement or title retention agreement relating to such asset and (c) in
the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Notes, each
Issuing Bank Agreement, and the Agent Fee Letter.
"Loans" shall mean Term Loans, Competitive Bid Loans or Revolving
Loans.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations or financial condition of the
Borrower and the Subsidiaries taken as a whole or (b) material impairment of
the ability of the Borrower to pay any amount due, or to perform any other
material obligation, under any Loan Document.
"Maturity Date" shall mean May 31, 2000.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower, CBC or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Net Proceeds" shall mean, with respect to any asset disposition,
(a) the gross amount of cash proceeds (including the amount of insurance
settlements received but not applied to the repair or replacement of the asset
in respect thereof within six months of the receipt of such settlement) and
condemnation awards paid to or received by the Borrower or any Subsidiary in
respect of such asset disposition (including cash proceeds subsequently
received in respect of such asset disposition in respect of non-cash
consideration initially received or otherwise), less (b) the amount, if any,
of all taxes and customary fees, commissions, costs and other expenses
(excluding fees, commissions, costs or other expenses payable to the Borrower
or any Affiliate thereof) that are incurred in connection with such asset
disposition and are payable by the seller or transferor of the assets disposed
of; provided, however, that none of (i) the sale of inventory in the ordinary
course of business, (ii) any disposition of assets from the Borrower or a
Subsidiary to the Borrower or any Subsidiary, nor (iii) the dispositions of
obsolete or worn-out assets or of assets that are replaced within a reasonable
time with assets of a similar type and of substantially equal or greater value
shall be deemed to be asset dispositions.
"Note" shall mean a Competitive Bid Note, a Revolving Loan Note or
a Term Loan Note.
"Notice of Competitive Bid Borrowing" shall have the meaning given
to such term in Section 2.07(a).
"Notice of Competitive Bid Request" shall have the meaning given
to such term in Section 2.07(a).
"Obligations" shall mean the principal of and all interest on all
Loans and Letters of Credit, all fees, expense reimbursements, taxes,
compensation and indemnities payable by the Borrower to the Agent, any Lender
or any Issuing Bank pursuant to this Agreement and all other present and
future Indebtedness and other liabilities of the Borrower owing to the Agent,
any Lender, any Issuing Bank or any Person entitled to indemnification
pursuant to Section 9.05(b), or any of their respective successors,
transferees or assigns, of every type and description, whether or not
evidenced by any note, letter of credit, guaranty or other instrument, arising
under or in connection with this Agreement, any Note or any other Loan
Document, whether or not for the payment of money, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however arising.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, or any successor thereto.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within 180 days from the date of acquisition thereof;
(b) investments in commercial paper maturing within 180 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard & Poor's
Ratings Group or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any Lender or any domestic office of any
commercial bank organized under the laws of the United States of America
or any State thereof which has a combined capital and surplus and
undivided profits of not less than $250,000,000; and
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Code which is maintained for employees of the Borrower, CBC or any ERISA
Affiliate.
"Potential Event of Default" shall mean any event or condition
which upon notice, lapse of time or both would constitute an Event of Default.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by Chemical Bank as its prime rate in effect at
its principal office in New York City.
"Pro Rata Share" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator
of which shall be the sum of (i) the then outstanding principal balance of
such Lender's Term Loan and (ii) such Lender's Revolving Credit Commitment and
the denominator of which shall be the sum of (x) the aggregate outstanding
principal balance of all Term Loans and (y) the Aggregate Revolving Credit
Commitments, as adjusted from time to time pursuant to the terms of this
Agreement; provided, that if all of the Revolving Credit Commitments are
terminated or reduced to zero hereunder, "Pro Rata Share" shall mean, at any
particular time and with respect to any Lender, a fraction (expressed as a
percentage), the numerator of which shall be the then amount of such Lender's
outstanding Term Loans, Revolving Loans and LC Exposure and the denominator of
which shall be the then aggregate amount of all Term Loans, Revolving Loans
and LC Exposure outstanding hereunder; provided, further, that prior to the
Closing Date, "Pro Rata Share" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator
of which shall be the sum of (i) such Lender's Term Loan Commitment and (ii)
such Lender's Revolving Credit Commitment and the denominator of which shall
be the sum of (x) the Aggregate Term Loan Commitments and (y) the Aggregate
Revolving Credit Commitments, as adjusted from time to time pursuant to the
terms of this Agreement.
"Purchase Agreement" shall mean that certain Sale and Purchase
Agreement dated as of April 12, 1995 among Bakeries, the Borrower, CBC and the
Sellers, a copy of which has been delivered to the Agent, the Issuing Banks
and the Lenders.
"Ralston" shall mean Ralston Purina Company, a Missouri
corporation.
"Ralston Shareholder Agreement" shall mean a shareholder agreement
to be entered into by and between Ralston and Bakeries on or prior to the
Closing Date, which agreement, among other things, shall set forth the terms
and conditions pursuant to which Ralston may acquire, sell, transfer or
otherwise dispose of any or all of the stock of Bakeries it may own from time
to time.
"Register" shall have the meaning given to such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation G" shall mean Regulation G of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to
a Plan (other than a Plan maintained by an ERISA Affiliate which is considered
an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of
the Code).
"Required Lenders" shall mean, except as otherwise provided in
Section 9.17(v), Lenders whose Pro Rata Shares, in the aggregate, are greater
than fifty-one percent (51%); provided, however, that for purposes of this
definition only, the term "Revolving Loans" that appears twice in the proviso
to the definition of the term "Pro Rata Share" shall be replaced with the term
"Revolving Credit Facility Loans".
"Required Revolving Credit Lenders" shall mean, at any time,
except as otherwise provided in Section 9.17(v), Revolving Credit Lenders
whose Revolver Pro Rata Shares, in the aggregate, are greater than fifty-one
percent (51%) at such time; provided, however, that for purposes of this
definition only, the term "Revolving Loans" that appears twice in the proviso
to the definition of the term "Revolver Pro Rata Share" shall be replaced with
the term "Revolving Credit Facility Loans".
"Required Term Lenders" shall mean, at any time, except as
otherwise provided in Section 9.17(v), Term Lenders whose Term Pro Rata
Shares, in the aggregate, are greater than fifty-one percent (51%) at such
time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restricted Payments" shall have the meaning given to such term in
Section 6.05.
"Revolver Pro Rata Share" shall mean, at any particular time and
with respect to any Revolving Credit Lender, a fraction (expressed as a
percentage), the numerator of which shall be the then aggregate amount of such
Lender's Revolving Credit Commitment and the denominator of which shall be the
Aggregate Revolving Credit Commitments, as adjusted from time to time pursuant
to the terms of this Agreement; provided, that if all of the Revolving Credit
Commitments are terminated or reduced to zero hereunder, "Revolver Pro Rata
Share" shall mean, at any particular time and with respect to any Revolving
Credit Lender, a fraction (expressed as a percentage), the numerator of which
shall be the then amount of such Lender's outstanding Revolving Loans and/or
LC Exposure and the denominator of which shall be the then aggregate amount of
all Revolving Loans and LC Exposure outstanding hereunder.
"Revolving Credit Availability" shall mean, as of any particular
date of determination, the amount by which Aggregate Revolving Credit
Commitments exceed Outstandings. For purposes of calculating Revolving Credit
Availability as at any date, all Revolving Loans requested but not yet
advanced and Competitive Bid Loans accepted but not yet advanced will be
treated as advanced in calculating Outstandings unless the Borrower has
directed that the requested advance be disbursed to repay the Revolving Credit
Facility Loans. "Outstandings" shall mean, at any given time the aggregate
outstanding principal balance of Revolving Loans, Competitive Bid Loans, and
the LC Exposure.
"Revolving Credit Commitment" shall mean, with respect to each
Revolving Credit Lender, the commitment of such Lender to make Revolving
Loans, which Revolving Credit Commitments as of the Documentation Completion
Date are set forth in Schedule 2.01, as the same may be reduced from time to
time pursuant to Section 2.14 or modified from time to time pursuant to
Section 9.04.
"Revolving Credit Facility" shall mean the revolving credit
facility established for Revolving Loans and Competitive Bid Loans pursuant to
Section 2.04.
"Revolving Credit Facility Loans" shall mean Revolving Loans and
Competitive Bid Loans.
"Revolving Credit Lender" shall mean a Lender that has a Revolving
Credit Commitment or to which Revolving Credit Facility Loans are owing.
"Revolving Loan Borrowing" shall mean a group of Revolving Loans
of the same Type made by the Revolving Credit Lenders on a single date and as
to which a single Interest Period is in effect.
"Revolving Loan Note" shall have the meaning given to such term in
Section 2.08.
"Revolving Loans" shall mean the revolving loans made by the
Revolving Credit Lenders to the Borrower pursuant to Section 2.05. Each
Revolving Loan shall be a Eurodollar Loan or an ABR Loan.
"Sale and Lease-Back Transaction" shall have the meaning given to
such term in Section 6.02.
"Sellers" shall mean Ralston and VCS Holding Company, a Delaware
corporation.
"Senior Note Agreement" shall mean the Note Exchange Agreement
dated as of June 25, 1991, between the Borrower and Mezzanine Investment
Partnership-8, as amended by Amendment No. 1 and Amendment No. 2 thereto, and
as amended, supplemented or modified from time to time in accordance with the
terms hereof.
"Senior Notes" shall mean the Borrower's Senior Notes due 2000 in
the aggregate principal amount of $79,000,000 issued under the Senior Note
Agreement.
"Spread" shall mean, as to any Competitive Bid Loan bearing
interest at a rate based upon the LIBO Rate, the margin (expressed as a
percentage rate per annum in the form of a decimal to no more than four
decimal places) to be added to or subtracted from the LIBO Rate in order to
determine the interest rate applicable to such Competitive Bid Loan, as
specified in the Competitive Bid relating to such Competitive Bid Loan.
"subsidiary" shall mean, with respect to any Person (herein
referred to as the "parent"), any corporation, partnership, association or
other business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held, or (b) which
is, at the time any determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Term Facility Fees" shall have the meaning given to such term in
Section 2.10(b).
"Term Lender" shall mean a Lender that has a Term Loan Commitment
or to which a Term Loan is owing.
"Term Loan" and "Term Loans" shall have the respective meanings
given to such terms in Section 2.02.
"Term Loan Note" shall have the meaning given to such term in
Section 2.08.
"Term Loan Commitment" shall mean, with respect to each Term
Lender, the commitment of such Lender to make a Term Loan on the Closing Date
as set forth in Schedule 2.01. The Term Loan Commitment of each Term Lender
shall terminate upon the Borrower's receipt of the proceeds of such Lender's
Term Loan or as otherwise set forth in this Agreement, as the same may be
modified from time to time pursuant to Section 9.04.
"Term Pro Rata Share" shall mean, with respect to any Term Lender,
at any particular time, a fraction (expressed as a percentage), the numerator
of which shall be the then outstanding principal balance of such Lender's Term
Loan and the denominator of which shall be the aggregate outstanding balance
of all Term Loans; provided, that at any particular time prior to the Closing
Date, "Term Pro Rata Share" shall mean a fraction (expressed as a percentage),
the numerator of which shall be the then aggregate amount of such Lender's
Term Loan Commitment and the denominator of which shall be the Aggregate Term
Loan Commitments.
"Termination Date" shall mean the earlier of (a) the Maturity Date
and (b) the date of termination of the Commitments pursuant to Article VII or
the reduction of the Revolving Credit Commitments to zero pursuant to Section
2.14.
"Third Party Claim" shall have the meaning given to such term in
Section 9.05(b).
"Transferee" shall have the meaning given to such term in Section
2.27(a).
"Type" when used in respect of any Revolving Credit Facility Loan
or Borrowing, shall refer to the interest rate (i.e. the LIBO Rate, the
Alternate Base Rate, or a fixed rate) by reference to which interest on such
Revolving Credit Facility Loan or portion thereof or on the Revolving Credit
Facility Loans comprising such Borrowing is determined.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided, however, that, for purposes of
determining compliance with any covenant set forth in Article VI, such terms
shall be construed in accordance with GAAP as in effect on the date of this
Agreement applied on a basis consistent with the application used in preparing
the Borrower's audited financial statements referred to in Section 3.05;
provided, further, that in making any calculation required by this Agreement,
for the purpose of determining the net income or deficit or item of expense of
or for any Subsidiary, notwithstanding any reference herein to any period, the
income, deficit or expense included in such calculation with respect to such
Subsidiary shall be included only from the date such Subsidiary became a
Subsidiary.
ARTICLE II. THE CREDITS
SECTION 2.01. The Term Loan Facility. Subject to the terms and
conditions set forth in this Agreement, each Term Lender hereby severally and
not jointly agrees to make a term loan, in dollars, to the Borrower on the
Closing Date in an amount equal to such Lender's Term Loan Commitment (each
such term loan a "Term Loan", and collectively, the "Term Loans"). The Term
Loan Commitments of each Term Lender as of the Documentation Completion Date
are set forth on Schedule 2.01.
SECTION 2.02. Term Loans. (a) On the Closing Date, each Term
Lender shall deposit an amount equal to its Term Loan Commitment at the
Agent's domestic office, no later than 12:00 noon New York City time, in
immediately available funds. Subject to fulfillment of the conditions
precedent set forth in Section 4.02, the Agent shall make the proceeds of such
amounts received by it available to the Borrower at the Agent's office in New
York, New York on the Closing Date, and shall disburse such proceeds in
accordance with the Borrower's disbursement instructions. The Term Loans
shall be made by the Term Lenders simultaneously, it being understood that no
Lender shall be responsible for any failure by any other Term Lender to
perform its obligation to make its Term Loan hereunder nor shall any Term
Lender's Term Loan Commitment be increased or decreased as a result of such
failure. The failure of any Term Lender to make available to the Agent an
amount equal to its Term Loan Commitment on the Closing Date shall not relieve
any other Term Lender of its obligation hereunder to make available such other
Term Lender's Term Loan on the Closing Date pursuant to the terms of this
Agreement.
(b) Subject to conversion pursuant to Section 2.16 below, the
Term Loans initially shall be either an ABR Loan or a Eurodollar Loan, as the
Borrower may designate in its notice of the Closing Date described in Section
4.02(e). The Borrower shall give the Agent written or telecopy notice (or
telephone notice promptly confirmed in writing or by telecopy) no later than
5:00 p.m. New York City time at least four Business Days prior to the Closing
Date. Such notice shall be irrevocable, shall refer to this Agreement and
shall specify (i) whether the Term Loans initially will be made as a
Eurodollar Loan or an ABR Loan; (ii) the date of the Closing Date (which shall
be a Business Day); and (iii) if the Term Loans initially will be made as a
Eurodollar Loan, the Interest Period with respect thereto. If such notice
does not specify whether the Term Loans are to be made as a Eurodollar Loan or
an ABR Loan, then the Term Loans initially shall be made as an ABR Loan. If
the Borrower specifies that the Term Loans initially will be made as a
Eurodollar Loan, but the notice in respect thereof does not specify the
Interest Period for such Eurodollar Loan, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Agent shall
promptly advise the Term Lenders of the notice given pursuant to this Section
2.02.
SECTION 2.03. Repayment of the Term Loans. (a) The Term Loans
shall be repaid in nine (9) consecutive semi-annual installments commencing on
May 31, 1996 and continuing thereafter until the Maturity Date. The
installments shall be paid on the dates and shall be in the aggregate amounts
set forth below:
Installment Date Installment Amount
May 31, 1996 $10,000,000
November 30, 1996 $10,000,000
May 31, 1997 $25,000,000
November 30, 1997 $25,000,000
May 31, 1998 $25,000,000
November 30, 1998 $25,000,000
May 31, 1999 $35,000,000
November 30, 1999 $35,000,000
May 31, 2000 $35,000,000
(b) In addition to the scheduled installments of the Term
Loans, the Borrower may make voluntary prepayments described in Section 2.17
and shall make the mandatory prepayments prescribed in Section 2.19, for
credit against such scheduled installments on the Term Loans in accordance
with such sections.
(c) Notwithstanding the foregoing clause (a), the final
installment shall be in the amount of the outstanding principal balance of the
Term Loans. Any amount repaid or prepaid in connection with the Term Loans
may not be reborrowed.
SECTION 2.04. The Revolving Credit Facility. Subject to the terms
and conditions set forth in this Agreement, each Revolving Credit Lender
hereby severally and not jointly agrees to make Revolving Loans, in dollars,
to the Borrower from time to time during the period from the Closing Date to
the Business Day immediately preceding the Termination Date, in an amount
which shall not exceed the product of such Lender's Revolver Pro Rata Share
and the Revolving Credit Availability at such time. The Revolving Credit
Commitments of each Revolving Credit Lender as of the Documentation Completion
Date are set forth on Schedule 2.01. Subject to and upon the terms and
conditions herein set forth, each Revolving Credit Lender severally agrees
that the Borrower may incur a Competitive Bid Loan or Competitive Bid Loans
pursuant to a Competitive Bid Borrowing from time to time during the period
from the Closing Date to the Business Day immediately preceding the
Termination Date, provided that such Competitive Bid Borrowing shall not
exceed Revolving Credit Availability at such time.
SECTION 2.05. Revolving Loans. (a) All Revolving Loans comprising
the same Borrowing under this Agreement shall be made by the Revolving Credit
Lenders simultaneously and proportionately to their respective Revolver Pro
Rata Shares, it being understood that no Lender shall be responsible for any
failure by any other Revolving Credit Lender to perform its obligation to make
a Revolving Loan hereunder and that the Revolving Credit Commitment of any
Lender shall not be increased or decreased without the prior written consent
of such Lender as a result of the failure by any other Revolving Credit Lender
to perform its obligation to make a Revolving Loan. The failure of any
Revolving Credit Lender to make available to the Agent its Revolver Pro Rata
Share of any Borrowing shall not relieve any other Lender of its obligation
hereunder to make available to the Agent such other Lender's Revolver Pro Rata
Share of any Borrowing of the Aggregate Revolving Credit Commitments on the
date such funds are to be made available pursuant to the terms of this
Agreement.
(b) Each Borrowing of Revolving Loans shall be in a minimum
principal amount of $5,000,000 and in multiples of $1,000,000 in excess
thereof or an aggregate principal amount equal to the Revolving Credit
Availability. Each Borrowing of Revolving Loans shall be comprised entirely
of ABR Loans or Eurodollar Loans, as the Borrower may request pursuant to
Section 2.06. Each Revolving Credit Lender may at its option fulfill its
commitment with respect to any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Eurodollar Loan;
provided that any exercise of such option shall not affect the obligation of
the Borrower to repay such Eurodollar Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the
same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing which, if made, would result in an aggregate of more
than five separate Borrowings of Revolving Loans which are Eurodollar Loans
being outstanding hereunder at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Subject to paragraph (e) below, each Revolving Credit Lender
shall make a Revolving Loan in the amount of its Revolver Pro Rata Share of
the amount of each Revolving Loan Borrowing hereunder on the proposed date
thereof by wire transfer of immediately available funds to the Agent in New
York, New York, not later than 12:00 noon, New York City time, and the Agent
shall, promptly upon receipt of such amounts but in any event not later than
3:00 p.m. on the same Business Day, New York City time, credit the amounts so
received to the general deposit account of the Borrower with the Agent or, if
a Revolving Loan Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Revolving Credit Lenders. Unless the Agent shall
have received notice from a Revolving Credit Lender prior to the date of any
Revolving Loan Borrowing that such Lender will not make available to the Agent
such Lender's portion of such Borrowing, the Agent may assume that such Lender
has made such portion available to the Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have made such
portion available to the Agent, such Lender and the Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent at
(i) in the case of the Borrower, the interest rate applicable at the time to
the Revolving Loans comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Effective Rate (as such term is used in the
definition of the term "Alternate Base Rate"). If such Lender shall repay to
the Agent such corresponding amount, such amount shall constitute such
Lender's Revolving Loan as part of such Borrowing for purposes of this
Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Revolving Loan Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
(e) The Borrower may refinance all or any part of any Revolving
Loan Borrowing with a Borrowing of the same or a different Type, subject to
the conditions and limitations set forth in this Agreement. Any Borrowing or
part thereof so refinanced shall be deemed to be repaid or prepaid in
accordance with Section 2.09 or 2.17, as applicable, with the proceeds of a
new Borrowing, and the proceeds of the new Borrowing, to the extent they do
not exceed the principal amount of the Borrowing being refinanced, shall not
be paid by the Revolving Credit Lenders to the Agent or by the Agent to the
Borrower pursuant to paragraph (c) above.
SECTION 2.06. Notice of Borrowings of Revolving Loans. The
Borrower shall give the Agent written or telecopy notice (or telephone notice
promptly confirmed in writing or by telecopy) (a) in the case of a Eurodollar
Borrowing consisting of Revolving Loans, not later than 12:00 (noon), New York
City time, three Business Days before a proposed Borrowing and (b) in the case
of an ABR Borrowing consisting of Revolving Loans, not later than 12:00
(noon), New York City time, one Business Day before a proposed Borrowing.
Each such notice shall be in substantially the form of Exhibit E. Such notice
shall be irrevocable and shall in each case refer to this Agreement and
specify (i) whether the Revolving Loan Borrowing then being requested is to be
a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day) and the amount thereof; and (iii) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice
in accordance with this Section 2.06 of its election to refinance a Revolving
Loan Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then the Borrower shall (unless such Borrowing is repaid at the end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. The Agent shall promptly
advise the Revolving Credit Lenders of any notice given pursuant to this
Section 2.06 and of each such Lender's portion of the requested Borrowing.
SECTION 2.07. Competitive Bid Procedures. (a) Whenever the
Borrower desires to solicit Competitive Bids, it shall give the Agent at
least one Business Day's prior written notice with respect to each proposed
Competitive Bid Borrowing of Fixed Rate Loans and at least four Business Days
prior written notice of each proposed Competitive Bid Borrowing of Eurodollar
Loans to be made hereunder, provided that any such notice shall be deemed to
have been given on a certain day only if given before 10:00 A.M. (New York
City time) on such day. Each such notice (a "Notice of Competitive Bid
Borrowing") shall be in the form of Exhibit F appropriately completed by the
Borrower to specify (i) the aggregate principal amount of the proposed
Competitive Bid Loans to be made pursuant to such Borrowing (which shall be in
a minimum principal amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof), (ii) the date of such Borrowing (which shall be
a Business Day) and (iii) whether the Competitive Bid Loans proposed to be
made pursuant to such Borrowing are to be Fixed Rate Loans or Eurodollar Loans
and (iv) the Interest Period relating thereto. The maturity date for
repayment of each Competitive Bid Loan to be made as part of such Competitive
Bid Borrowing shall be the earlier of (x) the last day of the Interest Period
relating thereto and (y) the Termination Date. A Notice of Competitive Bid
Borrowing that does not conform substantially to the format of Exhibit F may
be rejected in the Agent's sole discretion, and the Agent shall promptly
notify the Borrower of such rejection. The Agent shall promptly notify each
Revolving Credit Lender of each such request for a Competitive Bid Borrowing
received by it from the Borrower and not rejected by it by telecopying such
Lender a notice in the form of Exhibit G (a "Notice of Competitive Bid
Request").
(b) Each Revolving Credit Lender (or any branch, office or
Affiliate of such Lender on behalf of such Lender as such Lender may designate
by written notice to the Agent) may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Notice of Competitive Bid
Request. Each Competitive Bid by or on behalf of a Revolving Credit Lender
must be received by the Agent via telecopier, in the form of Exhibit H, (i) in
the case of a proposed Competitive Bid Borrowing of Eurodollar Loans, not
later than 10:00 a.m., New York City time, three Business Days before a
proposed Competitive Bid Borrowing and (ii) in the case of a proposed
Competitive Bid Borrowing of Fixed Rate Loans, not later than 10:00 a.m., New
York City time, on the day of a proposed Competitive Bid Borrowing. Multiple
Competitive Bids will be accepted by the Agent. Competitive Bids that do not
conform substantially to the format of Exhibit H may be rejected by the Agent
after conferring with, and upon the instruction of, the Borrower, and the
Agent shall notify the Lender making such nonconforming Competitive Bid, or
the Lender on behalf of which such nonconforming Competitive Bid is made, of
such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and specify (x) the principal amount (which shall be in a
minimum principal amount of $5,000,000 and in a integral multiple of
$1,000,000 in excess thereof and which may equal the entire principal amount
of the Competitive Bid Borrowing requested by the Borrower) of each
Competitive Bid Loan that the applicable Lender is willing to make to the
Borrower, (y) with respect to each requested Fixed Rate Loan, the Competitive
Bid Rate, or with respect to each requested Eurodollar Loan, the Spread, at
which such Revolving Credit Lender is prepared to make such Competitive Bid
Loan and (z) the Interest Period (which shall be the Interest Period set forth
in the applicable Competitive Bid Request) and the last day thereof. If any
Revolving Credit Lender shall elect not to make a Competitive Bid, such Lender
shall so notify the Agent via telecopier (I) in the case of Eurodollar Loans,
not later than 10:00 a.m., New York City time, three Business Days before a
proposed Competitive Bid Borrowing, and (II) in the case of Fixed Rate Loans,
not later than 10:00 a.m., New York City time, on the day of a proposed
Competitive Bid Borrowing; provided, however, that failure by any Revolving
Credit Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Bid Loan as part of such Competitive Bid Borrowing. A
Competitive Bid submitted by or on behalf of a Lender pursuant to this Section
2.07 shall be irrevocable.
(c) The Agent shall promptly notify the Borrower by telephone
and telecopier of all the Competitive Bids made, the Competitive Bid Rate and
the principal amount of each Competitive Bid Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each
Competitive Bid. The Agent shall send a copy of all Competitive Bids to the
Borrower for its records as soon as practicable after completion of the
bidding process set forth in this Section 2.07.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this Section 2.07, accept or reject any
Competitive Bid referred to in Section 2.07(b). The Borrower shall notify the
Agent by telephone, confirmed by telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject any of or all the Competitive Bids referred to in Section 2.07(b), (x)
in the case of a Competitive Bid Borrowing of Eurodollar Loans, not later than
11:00 a.m., New York City time, three Business Days before a proposed
Competitive Bid Borrowing, and (y) in the case of a Borrowing of Fixed Rate
Loans, not later than 11:00 a.m., New York City time, on the day of a proposed
Competitive Bid Borrowing; provided, however, that (i) the failure by the
Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in Section 2.07(b), (ii) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower has decided to reject a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Notice of
Competitive Bid Borrowing, (iv) if the Borrower shall accept a Competitive Bid
or Competitive Bids made at a particular Competitive Bid Rate but the amount
of such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by the Borrower to exceed the amount specified
in the Notice of Competitive Bid Borrowing, then the Borrower shall accept a
portion of such Competitive Bid or Competitive Bids in an amount equal to the
amount specified in the Competitive Bids accepted with respect to such Notice
of Competitive Bid Borrowing, which acceptance, in the case of multiple
Competitive Bids at the highest Competitive Bid Rate accepted by the Borrower,
shall be made pro rata in accordance with the amount of each such Competitive
Bid at such Competitive Bid Rate, and (v) except pursuant to clause (iv)
above, no Competitive Bid shall be accepted for a Competitive Bid Loan unless
such Competitive Bid Loan is in a minimum principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof; provided further, however,
that if a Competitive Bid Loan must be in an amount less than $5,000,000
because of the provisions of clause (iv) above, such Competitive Bid Loan may
be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
which shall be in the discretion of the Borrower. A notice given by the
Borrower pursuant to this Section 2.07 shall be irrevocable.
(e) The Agent shall promptly notify each Lender that submitted a
Competitive Bid, or on behalf of which a Competitive Bid was submitted, as the
case may be, whether or not such Competitive Bid has been accepted (and if so,
in what amount and at what Competitive Bid Rate) by telecopy sent by the
Agent. Upon the Borrower's acceptance of any Competitive Bid, the Lender that
made such Competitive Bid, or the Lender on behalf of which such Competitive
Bid was made, as the case may be, will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loan in
respect of which such Competitive Bid has been accepted.
(f) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Revolving Credit Lender, it shall submit such Competitive Bid
directly to the Borrower one quarter of an hour earlier than the latest time
at which the other Revolving Credit Lenders are required to submit their
Competitive Bids to the Agent pursuant to Section 2.07(b).
(g) All notices required by this Section 2.07 shall be given in
accordance with Section 2.06.
SECTION 2.08. Notes. (a) The Borrower shall execute and deliver
to each Term Lender (or to the Agent on behalf of each Term Lender) on or
before the Closing Date a promissory note substantially in the form of Exhibit
I-1 (each a "Term Loan Note" and collectively, the "Term Loan Notes") to
evidence the amount of that Lender's Term Loan. Each Term Loan Note shall be
dated the Closing Date and shall be stated to mature on the Maturity Date.
The Term Loan Note executed in favor of any Term Lender shall be in a
principal amount equal to such Lender's Term Loan Commitment.
(b) The Borrower shall execute and deliver to each Revolving
Credit Lender (or to the Agent on behalf of each Revolving Credit Lender) on
or before the Closing Date a promissory note substantially in the form of
Exhibit I-2 (each a "Revolving Loan Note" and collectively, the "Revolving
Loan Notes") to evidence the aggregate amount of that Lender's Revolving Loans
and with other appropriate insertions. Each Revolving Loan Note shall be
dated the Closing Date and shall be stated to mature on the Termination Date.
The Revolving Loan Note executed in favor of any Lender shall be in a
principal amount equal to such Lender's Revolving Credit Commitment.
(c) The Borrower's obligation to pay the principal of and
interest on all Competitive Bid Loans made to it by a Revolving Credit Lender
shall be evidenced by its promissory note substantially in the form of Exhibit
I-3 (each a "Competitive Bid Note" and collectively, the "Competitive Bid
Notes"). Each Competitive Bid Note issued to each Revolving Credit Lender
shall (i) be payable to the order of such Lender and be dated the Closing
Date, (ii) be in a stated principal amount equal to the Aggregate Revolving
Credit Commitments and be payable in the outstanding principal amount of
Competitive Bid Loans evidenced thereby from time to time, (iii) mature with
respect to each Competitive Bid Loan evidenced thereby on the earlier of (x)
the last day of the Interest Period applicable thereto and (y) the Termination
Date, (iv) bear interest as provided in Section 2.11 in respect of Fixed Rate
Loans or Eurodollar Loans, as the case may be, evidenced thereby and (v) be
entitled to the benefits of this Agreement and the other Loan Documents.
(d) Each Lender is hereby authorized to, and prior to any
transfer of any Note issued to it, each Lender shall, endorse the date and
amount of each Loan made by such Lender and each payment or prepayment of
principal of the Loans evidenced thereby on the schedule annexed to and
constituting a part of such Note, which endorsement shall constitute prima
facie evidence, absent manifest error, of the accuracy of the information so
endorsed, provided that failure by any such Lender to make such endorsement
shall not affect the obligations of the Borrower hereunder or under such Note.
In lieu of endorsing such schedule as hereinabove provided, prior to any
transfer of such Note, each Lender is hereby authorized, at its option, to
record such Loans and such payments or prepayments in its books and records,
such books and records constituting prima facie evidence, absent manifest
error, of the accuracy of the information contained therein.
SECTION 2.09. Repayment of Revolving Credit Facility Loans. (a)
The Borrower agrees to pay the outstanding principal balance of each Revolving
Loan on the Termination Date and each Competitive Bid Loan as provided in
Section 2.07(a). Each Revolving Credit Facility Loan shall bear interest from
the date of the Borrowing of which such Revolving Credit Facility Loan is a
part on the outstanding principal balance thereof as set forth in Section
2.11.
(b) Each Revolving Credit Lender shall, and is hereby authorized
by the Borrower to, maintain in accordance with its usual practice records
evidencing the indebtedness of the Borrower to such Lender hereunder from time
to time, including the amounts and Types of and Interest Periods applicable to
the Revolving Credit Facility Loans made by such Lender from time to time and
the amounts of principal and interest paid to such Lender from time to time in
respect of such Revolving Credit Facility Loans.
(c) The entries made in the records maintained pursuant to
paragraph (b) of this Section 2.09 and in the Register maintained by the Agent
pursuant to Section 9.04 shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower to which such entries relate;
provided, however, that the failure of any Lender or the Agent to maintain or
to make any entry in such records or the Register, as applicable, or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Revolving Credit Lenders, through the Agent, on the last day of March, June,
September and December in each year and on the date on which the last of the
Revolving Credit Commitments of such Lenders shall expire or be terminated as
provided herein, a facility fee (a "Facility Fee") in an amount equal to the
Applicable Facility Fee multiplied by the Aggregate Revolving Credit
Commitments, regardless of utilization, payable to the Revolving Credit
Lenders pro rata quarterly in arrears (or other period commencing with the
date set forth below or ending with the date on which the last of the
Revolving Credit Commitments of such Lenders shall expire or be terminated).
All Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be. The Facility Fee
due to each Revolving Credit Lender shall commence to accrue on the earlier of
July 14, 1995 or the Closing Date and shall cease to accrue on the date on
which the last of the Revolving Credit Commitments of such Lenders shall
expire or be terminated as provided herein.
(b) If the Closing Date shall not have occurred on or prior to
July 14, 1995, the Borrower agrees to pay to the Term Lenders, through the
Agent, on the Closing Date a facility fee (a "Term Facility Fee") in a per
annum amount equal to the Applicable Facility Fee multiplied by the Aggregate
Term Loan Commitments, payable to the Term Lenders pro rata in arrears for the
period commencing on July 14, 1995 and ending on the earlier of the Closing
Date and the date on which the Borrower gives the Agent irrevocable written
notice that the Term Loans will not be borrowed (the "Termination Notice
Date"). All Term Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as the case may be. If
the Closing Date shall have occurred on or prior to July 14, 1995, no Term
Facility Fees shall be payable hereunder.
(c) The Borrower agrees to pay to each Revolving Credit Lender,
through the Agent, on the last day of March, June, September and December in
each year, and on the date on which the LC Commitment of such Lender shall
have been terminated as provided herein and all Letters of Credit issued
pursuant to such LC Commitment shall have expired, a letter of credit fee (an
"LC Fee") equal to the Applicable Revolving Credit Eurodollar Margin on the
average undrawn face amount of all outstanding Letters of Credit, payable to
the Revolving Credit Lenders pro rata quarterly in arrears. All LC Fees shall
be computed on the basis of the actual number of days elapsed in a year of 365
or 366 days, as the case may be.
(d) The Borrower agrees to pay to each Issuing Bank, for its
own account, the applicable Issuing Bank Fees.
(e) If the Termination Notice Date has not occurred, then
notwithstanding the provisions of the Agent Fee Letter, the Borrower agrees to
pay all fees set forth in the Agent Fee Letter on the earlier of July 14, 1995
or the Closing Date.
(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among
the Lenders and to the Issuing Banks. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.11. Interest on Loans. (a) Subject to the provisions
of Section 2.12, the Revolving Loans comprising each ABR Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate.
(b) Subject to the provisions of Section 2.12, the Revolving
Loans comprising each Eurodollar Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to the LIBO Rate in effect for such Borrowing plus the
Applicable Revolving Credit Eurodollar Margin.
(c) Subject to the provisions of Section 2.12, each Fixed Rate
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at the rate offered by the Lender making such
Loan and accepted by the Borrower pursuant to Section 2.07(d).
(d) Subject to the provisions of Section 2.12, each Eurodollar
Loan comprising any Competitive Bid Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days) at the
LIBO Rate plus the applicable Spread offered by the Lender making such Loan
and accepted by the Borrower pursuant to Section 2.07(d) above.
(e) Subject to the provisions of Section 2.12, the portion of the
Term Loans comprising an ABR Loan shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 365 or 366 days, as the
case may be, when determined by reference to the Prime Rate and over a year of
360 days at all other times) at a rate per annum equal to the Alternate Base
Rate.
(f) Subject to the provisions of Section 2.12, each portion of
the Term Loans comprising a Eurodollar Loan shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 360 days) at the
LIBO Rate in effect for the Interest Period applicable to such Loan plus the
Applicable Term Loan Eurodollar Margin.
(g) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate or LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be
determined by the Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.12. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, the Borrower shall on
demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after
as well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, in the case of amounts bearing interest computed by reference to the Prime
Rate and a year of 360 days in all other cases) equal to (a) in the case of
any Loan, the rate applicable to such Loan under Section 2.11 plus 2% per
annum and (b) in the case of any other amount, the rate that would at the time
be applicable to an ABR Loan under Section 2.11 plus 2% per annum.
SECTION 2.13. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for any Borrowing, or any portion of the Term Loans,
constituting Eurodollar Loans that the Agent shall have determined that dollar
deposits in the principal amounts of Loans constituting such Eurodollar Loans
are not generally available in the London interbank market, or that the rates
at which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurodollar Loan
during such Interest Period, or that reasonable means do not exist for
ascertaining the LIBO Rate, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrower and the Term Lenders or Revolving Lenders, as the case may be. In
the event of any such determination, any request by the Borrower for
Eurodollar Loans pursuant to Section 2.02, 2.06, 2.15 or 2.16 shall, until the
Agent shall have advised the Borrower and the Term Lenders or Revolving Credit
Lenders, as applicable, that the circumstances giving rise to such notice no
longer exist, be deemed to be a request for ABR Loans. Each determination by
the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.14. Reduction or Cancellation of
Commitments. (a) The Revolving Credit Commitments and the LC Commitments
shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days prior irrevocable written
or telecopy notice to the Agent, which shall promptly notify the Revolving
Credit Lenders, the Borrower may at any time and from time to time permanently
reduce all or a portion of the Aggregate Revolving Credit Commitments
unutilized for Revolving Credit Facility Loans or Letters of Credit, provided
that any partial reduction of the Aggregate Revolving Credit Commitments shall
be in minimum amounts of $1,000,000 and in $1,000,000 increments in excess
thereof.
(c) Each reduction in the Revolving Credit Commitments hereunder
shall be made ratably among the Revolving Credit Lenders in accordance with
their respective Revolver Pro Rata Shares.
(d) The Term Loan Commitment of each Term Lender shall terminate
upon the Borrower's receipt of the proceeds of such Lender's Term Loan or as
otherwise set forth in this Agreement.
SECTION 2.15. Conversion and Continuation of Borrowings of
Revolving Loans. The Borrower shall have the right, with respect to any
Borrowing of Revolving Loans, at any time upon prior irrevocable notice to the
Agent (i) not later than 12:00 (noon), New York City time, one Business Day
prior to conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (ii) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (iii) not later than 10:00
a.m., New York City time, three Business Days prior to conversion, to convert
the Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata among
the Lenders in accordance with their respective principal amounts of the
Revolving Loans comprising the converted or continued Borrowing;
(b) if less than all the outstanding principal amount of any
Revolving Loan Borrowing shall be converted or continued, the aggregate
principal amount of such Borrowing converted or continued shall be an
integral multiple of $1,000,000 (and not less than $5,000,000 in the
case of Eurodollar Borrowing);
(c) each conversion shall be effected by each Lender by applying
the proceeds of the new Revolving Loan of such Lender resulting from
such conversion to the Revolving Loan (or portion thereof) of such
Lender being converted; accrued interest on a Revolving Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(d) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Revolving Credit Lenders
pursuant to Section 2.23;
(e) any portion of a Revolving Loan Borrowing maturing or
required to be repaid in less than one month may not be converted into
or continued as a Eurodollar Borrowing;
(f) any portion of a Revolving Loan Borrowing which cannot be
continued or converted by reason of clause (e) above shall be
automatically converted at the end of the Interest Period in effect for
such Borrowing into, or continued as, an ABR Borrowing.
Each notice pursuant to this Section 2.15 shall be in
substantially the form of Exhibit J-1. Such notice shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing of Revolving Loans that the Borrower requests be converted or
continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and
(iv) if such Borrowing is to be converted to or continued as a Eurodollar
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Borrowing, the Borrower shall be deemed to have selected an
Interest Period of one month's duration. The Agent shall advise the other
Revolving Credit Lenders of any notice given pursuant to this Section 2.15 and
of each such Lender's portion of any converted or continued Revolving Loan
Borrowing. If the Borrower shall not have given notice in accordance with
this Section 2.15 to continue any Revolving Loan Borrowing of Eurodollar Loans
into a subsequent Interest Period (and shall not otherwise have given notice
in accordance with this Section 2.15 to convert such Borrowing), such
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Borrowing.
SECTION 2.16. Conversion and Continuation of Term Loans. The
Borrower shall have the right, with respect to any portion of the Term Loans,
at any time upon prior irrevocable notice to the Agent (i) not later than
12:00 (noon), New York City time, one Business Day prior to conversion, to
convert any portion of the Term Loans that constitute a Eurodollar Loan into
an ABR Loan, (ii) not later than 10:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any portion of
the Term Loans that constitute an ABR Loan into a Eurodollar Loan or to
continue any portion of the Term Loans constituting a Eurodollar Loan as a
Eurodollar Loan for an additional Interest Period, and (iii) not later than
10:00 a.m., New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any portion of the Term Loans
constituting a Eurodollar Loan to another permissible Interest Period, subject
in each case to the following:
(a) each conversion or continuation shall be made pro rata among
the Term Lenders in accordance with their respective Term Pro Rata
Shares;
(b) the aggregate principal amount of each portion of the Term
Loans converted or continued shall be an integral multiple of $1,000,000
(and not less than $5,000,000 in the case of the conversion into or
continuation of Eurodollar Loans);
(c) accrued interest on a Term Loan (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(d) if any Eurodollar Loans are converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section
2.23;
(e) any portion of the Term Loans maturing or required to be
repaid in less than one month may not be converted into or continued as
Eurodollar Loans;
(f) any portion of the Term Loans which cannot be continued or
converted by reason of clause (e) above shall be automatically converted
at the end of the Interest Period in effect for such portion of the Term
Loans into, or continued as, ABR Loans.
Each notice pursuant to this Section 2.16 shall be in
substantially the form of Exhibit J-2. Such notice shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and portion of the
Term Loans that the Borrower requests be converted or continued, (ii) whether
such portion of the Term Loans is to be converted to or continued as
Eurodollar Loans or ABR Loans, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
portion of the Term Loans is to be converted to or continued as Eurodollar
Loans, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as Eurodollar Loans, the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Agent shall advise the other Term Lenders
of any notice given pursuant to this Section 2.16 and of each such Lender's
portion of any converted or continued portion of Term Loans. If the Borrower
shall not have given notice in accordance with this Section 2.16 to continue
any portion of Eurodollar Loans into a subsequent Interest Period (and shall
not otherwise have given notice in accordance with this Section 2.16 to
convert such portion of the Eurodollar Loans), such portion of the Eurodollar
Loans shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as ABR Loans.
SECTION 2.17. Voluntary Prepayments. (a) The Borrower shall
have the right at any time and from time to time to prepay Revolving Loans
and/or Term Loans, in whole or in part, upon prior written or telecopy notice
(or telephone notice promptly confirmed by written or telecopy notice) to the
Agent before 10:00 a.m., New York City time, (i) three Business Days prior to
prepayment, in the case of Eurodollar Loans; and (ii) one Business Day prior
to prepayment, in the case of ABR Loans; provided, however, that each partial
prepayment shall be in an amount which is an integral multiple of $1,000,000.
Prepayments of the Term Loans shall be applied pro rata to the unpaid
scheduled installments thereof. Competitive Bid Borrowings may not be prepaid
unless so required pursuant to the terms hereof.
(b) Each notice of an optional prepayment shall specify the
prepayment date and the principal amount of Term Loans or Revolving Loans to
be prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Term Loans or Revolving Loans by the amount stated therein on the date stated
therein. All optional prepayments under this Section 2.17 shall be subject to
Section 2.23 but otherwise without premium or penalty. All prepayments under
this Section 2.17 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.18. Mandatory Prepayments of Revolving Loans. On the
date of any termination or reduction of the Revolving Credit Commitments
pursuant to Section 2.14, the Borrower shall pay or prepay so much of the
Revolving Loans as shall be necessary in order that the sum of (i) the
aggregate principal amount of the Revolving Credit Facility Loans outstanding
and (ii) the LC Exposure will not exceed the Aggregate Revolving Credit
Commitments after giving effect to such termination or reduction.
SECTION 2.19. Mandatory Prepayments of Term Loans. On or before
August 31 of each year, commencing with August 31, 1996, the Borrower shall
make a mandatory prepayment of the Term Loans (to the extent any Term Loans
are outstanding at such time) in an amount equal to fifty percent (50%) of
Excess Cash determined with respect to the immediately preceding fiscal year;
provided, however, that the Borrower shall not be required to make a mandatory
prepayment pursuant to this Section 2.19 for any fiscal year as of the end of
which the Borrower's Funded Debt is less than fifty percent (50%) of
Consolidated Long-Term Capitalization and for any fiscal year thereafter.
Each such mandatory prepayment shall be applied pro rata to reduce the unpaid
scheduled principal installments of the Term Loans.
SECTION 2.20. Letters of Credit. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set
forth, each Issuing Bank agrees, at any time and from time to time on or after
the Closing Date until the earlier of the Maturity Date and the termination of
the LC Commitments in accordance with the terms hereof, to issue and deliver
or to extend the expiry of Letters of Credit for the account of the Borrower
in an aggregate undrawn amount at any one time outstanding which, together
with the aggregate undrawn amount at such time outstanding of Letters of
Credit issued by other Issuing Banks, does not exceed the Aggregate LC
Commitments; provided, however, that no Issuing Bank shall issue or extend the
expiry of any Letter of Credit if, immediately after giving effect to such
issuance or extension (i) the aggregate LC Exposure at such time would exceed
the Aggregate LC Commitments or (ii) the sum of the aggregate outstanding
principal balance of the Revolving Credit Facility Loans and the LC Exposure
would exceed the Aggregate Revolving Credit Commitments. Each Letter of
Credit (x) shall be in a form approved in writing by the Borrower, the Agent
and the applicable Issuing Bank, (y) shall be in a minimum principal amount of
$100,000 and (z) shall permit drawings upon the presentation of one or more
sight drafts and such other documents as shall be specified by the Borrower in
the applicable notice delivered pursuant to paragraph (c) below.
(b) Each Letter of Credit shall by its terms expire not later
than the earlier of (i) the first anniversary of the date of issuance or
extension (subject to extension for additional one-year periods by the
applicable Issuing Bank as contemplated by paragraph (a) above) and (ii) the
Maturity Date. Each Letter of Credit shall by its terms provide for payment
of drawings in dollars.
(c) The Borrower shall give the applicable Issuing Bank
irrevocable written or telecopy notice not later than 10:00 a.m., New York
City time, five Business Days (or such shorter period as shall be acceptable
to such Issuing Bank and the Agent) prior to any proposed issuance of a Letter
of Credit. Each such notice shall refer to this Agreement and shall specify
(i) the date on which such Letter of Credit is to be issued (which shall be a
Business Day), the face amount of such Letter of Credit (which shall be an
amount in dollars), (ii) the name and address of the beneficiary, (iii)
whether such Letter of Credit shall permit a single drawing or multiple
drawings, (iv) the form of the sight draft and any other documents required to
be presented at the time of any drawing (together with the exact wording of
such documents or copies thereof) and (v) the expiry date of such Letter of
Credit (which shall conform to the provisions of paragraph (b) above). Each
Issuing Bank shall give the Agent, which shall in turn give to each other
Issuing Bank and to each Revolving Credit Lender, prompt written or telecopy
advice of any notice received from the Borrower pursuant to this paragraph.
(d) By the issuance of a Letter of Credit and without any
further action on the part of the applicable Issuing Bank or the Revolving
Credit Lenders in respect of such Letter of Credit, the applicable Issuing
Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit
Lender hereby agrees to and does acquire from such Issuing Bank, a
participation in such Letter of Credit equal to such Revolving Credit Lender's
pro rata percentage, based upon the LC Commitments in effect at the time of
any drawing thereunder, of the face amount of such Letter of Credit, effective
upon the issuance of such Letter of Credit; provided, however, that no Lender
shall be required to acquire participations in Letters of Credit that would
result in its pro rata percentage, based upon its LC Commitment, of the LC
Exposure exceeding its LC Commitment. In consideration and in furtherance of
the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Agent, on behalf of each Issuing Bank, in
accordance with paragraph (f) below, such Lender's pro rata percentage, based
upon its LC Commitment, of each unreimbursed LC Disbursement made by such
Issuing Bank; provided, however, that the Lenders shall not be obligated to
make any such payment with respect to any wrongful payment or disbursement
made under any Letter of Credit as a result of the failure in any material
respect of such Issuing Bank or any confirming bank to comply with the
obligations imposed on it with respect to such Letter of Credit by the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce, Publication No. 500 and subsequent revisions (the
"Uniform Customs") or, to the extent that the Uniform Customs do not govern,
applicable law.
(e) Each Revolving Credit Lender acknowledges and agrees that
its acquisition of participations pursuant to paragraph (d) above in respect
of Letters of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including the occurrence and continuance of
any Potential Event of Default or Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(f) Promptly after it shall have ascertained that any draft and
any accompanying documents presented under a Letter of Credit appear to be in
conformity with the terms and conditions of such Letter of Credit, the
applicable Issuing Bank shall give written or telecopy notice to the Borrower
and the Agent of the receipt and amount of such draft and the date on which
payment thereon will be made. If the Agent shall not have received from the
Borrower the payment required pursuant to paragraph (g) below by 12:00 noon,
New York City time, one Business Day after the date on which payment of a
draft presented under any Letter of Credit has been made, the Agent shall
promptly so notify the applicable Issuing Bank and each Lender, specifying in
the notice to each Lender such Lender's pro rata percentage, based upon the LC
Commitments on the date of such notice, of such LC Disbursement. Each
Revolving Credit Lender shall pay to the Agent, not later than 2:00 p.m., New
York City time, on such date, such Lender's percentage of such LC
Disbursement, which the Agent shall promptly pay to the applicable Issuing
Bank. The Agent will promptly remit to each Revolving Credit Lender such
Lender's percentage of any amounts subsequently received by the Agent from the
Borrower in respect of such LC Disbursement; provided that (i) amounts so
received for the account of any Revolving Credit Lender prior to payment by
such Lender of amounts required to be paid by it hereunder in respect of any
LC Disbursement and (ii) amounts representing interest on any LC Disbursement
for the period prior to the payment by such Lender of such amounts shall in
each case be remitted to the applicable Issuing Bank.
(g) If an Issuing Bank shall pay any draft presented under a
Letter of Credit under circumstances entitling it to reimbursement under
succeeding provisions of this paragraph (g), the Borrower shall pay to such
Issuing Bank or to the Agent for the account of such Issuing Bank or, if the
Agent shall have received the payments provided in paragraph (f) above with
respect to such drawing, for the accounts of the Revolving Credit Lenders, an
amount equal to the amount of such draft before 12:00 noon, New York City
time, on the Business Day immediately following the date of payment of such
draft, together with interest on such amount at a rate per annum equal to the
interest rate in effect for ABR Borrowings from (and including) the date of
payment of such draft to (but excluding) the date of such payment by the
Borrower. The obligation of the Borrower to pay the amounts referred to above
in this paragraph (g) shall be absolute, unconditional and irrevocable and
shall be satisfied strictly in accordance with their terms irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Agent, any Issuing Bank, any
confirming bank or any Lender (other than the defense of payment in
accordance with the terms of this Agreement or a defense based on the
failure in any material respect of the applicable Issuing Bank or
confirming bank to comply with the obligations imposed on it with
respect to such Letter of Credit by the Uniform Customs or applicable
law) or any other Person in connection with this Agreement or any other
transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect; provided
that payment by the applicable Issuing Bank or confirming bank under
such Letter of Credit against presentation of such draft or document
shall not have constituted a failure in any material respect by such
Issuing Bank or confirming bank to comply with the obligations imposed
on it with respect to such Letter of Credit by the Uniform Customs or
applicable law;
(iv) payment by the applicable Issuing Bank under a Letter of
Credit against presentation of a draft or other document which does not
comply in any immaterial respect with the terms of such Letter of
Credit; provided that such payment shall not have constituted gross
negligence or wilful misconduct; or
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing; provided that such other circumstance
or event shall not have been the result of gross negligence or wilful
misconduct of the applicable Issuing Bank.
It is understood that in making any payment under a Letter of
Credit (x) the applicable Issuing Bank's exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all matters set
forth therein, including, without limitation, reliance on the amount of any
draft presented under such Letter of Credit, whether or not the amount due to
the beneficiary equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be forged,
fraudulent or invalid in any respect, if such document on its face appears to
be in order, and whether or not any other statement or any other document
presented pursuant to such Letter of Credit proves to be forged or invalid or
any statement therein proves to be inaccurate or untrue in any respect
whatsoever, and (y) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
either case, not be deemed a failure in any material respect by such Issuing
Bank or confirming bank to comply with the obligations imposed on it with
respect to such Letter of Credit by the Uniform Customs or applicable law.
(h) Transitional Provisions. Schedule 2.20 contains a schedule
of certain letters of credit issued for the account of the Borrower and
outstanding as of the Documentation Completion Date by one or more of the
Issuing Banks. On the Closing Date, (i) the Borrower shall provide an updated
Schedule 2.20, which schedule shall list those certain letters of credit
outstanding as of the Closing Date (the "Existing Facility Letters of
Credit"), (ii) such Existing Facility Letters of Credit shall be deemed to be
Letters of Credit issued pursuant to and in compliance with this Section 2.20,
(iii) the face amount of such Existing Facility Letters of Credit shall be
included in the calculation of the available LC Commitment and the LC
Exposure, (iv) the provisions of this Section 2.20 shall apply thereto, and
the Borrower and the Revolving Credit Lenders hereunder hereby expressly
assume all obligations with respect to such Letters of Credit and (v) all
liabilities of the Borrower with respect to such Existing Facility Letters of
Credit shall constitute Obligations.
SECTION 2.21. Additional Interest on Eurodollar Loans; Reserve
Requirements; Change in Circumstances. (a) The Borrower shall pay to the
Agent for the account of each Lender, so long as such Lender shall be required
under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including "Eurocurrency Liabilities",
as such term is defined in Regulation D, additional interest on the unpaid
principal amount of each Eurodollar Loan of such Lender, from the date of such
Loan until such Loan ceases to be a Eurodollar Loan, at an interest rate per
annum equal to all times to the remainder obtained by subtracting (i) the LIBO
Rate for the Interest Period for such Loan from (ii) the rate obtained by
dividing such LIBO Rate by a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Loan. Such additional interest
shall be determined by such Lender and notified to the Borrower through the
Agent. For purposes of this Section, "Eurodollar Rate Reserve Percentage" of
any Lender for the Interest Period for any Eurodollar Loan means the reserve
percentage applicable during such Interest Period and actually required to be
maintained by such Lender as a result of the funding of Eurodollar Loans made
by such Lender to the Borrower hereunder (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days
in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to such Interest
Period.
(b) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender of
the principal of or interest on any Eurodollar Loan made by such Lender or any
Letter of Credit reimbursement obligations, Fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its
principal office or lending office or by any political subdivision or taxing
authority therein), and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan
or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender to be material, then the Borrower will pay to such Lender upon
demand such additional amount or amounts as will compensate such Lender on an
after-tax basis for such additional costs incurred or reduction suffered.
(c) If any Lender or Issuing Bank shall have determined that the
applicability of any law, rule, regulation, agreement or guideline adopted
pursuant to or arising out of the July 1988 report of the Basle Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the adoption
after the date hereof of any other law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change in any of the foregoing or
in the interpretation or administration of any of the foregoing by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or Issuing Bank or any Lender's or Issuing
Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has had the effect of reducing the rate of
return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender or the Letters of Credit issued by
such Issuing Bank pursuant hereto (or the participations of the Lenders
therein) to a level below that which such Lender or Issuing Bank or such
Lender's or Issuing Bank's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's or Issuing Bank's policies and the policies of such Lender's or
Issuing Bank's holding company with respect to capital adequacy) by an amount
deemed by such Lender or Issuing Bank to be material, then from time to time
the Borrower shall pay to such Lender or Issuing Bank such additional amount
or amounts as will compensate such Lender or Issuing Bank or such Lender's or
Issuing Bank's holding company on an after-tax basis for any such reduction
suffered. Notwithstanding the foregoing, no Revolving Credit Lender shall be
entitled to compensation under this Section 2.21 with respect to any
Competitive Bid Loan if it knew or should have known of the change giving rise
to such request and of the impact of such change on the cost of making such
Competitive Bid Loans at the time of submission of the Competitive Bid
pursuant to which such Competitive Bid Loan shall have been made.
(d) A certificate of each Lender or Issuing Bank setting forth
such amount or amounts as shall be necessary to compensate such Lender or
Issuing Bank or its holding company as specified in paragraph (a), (b) or (c)
above, as the case may be, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay each Lender and
Issuing Bank the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(e) Except as otherwise expressly provided in this paragraph,
failure on the part of any Lender or Issuing Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute
a waiver of such Lender's or Issuing Bank's right to demand compensation with
respect to such period or any other period. The protection of this Section
2.21 shall be available to each Lender and Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred
or been imposed. No Lender or Issuing Bank shall be entitled to compensation
under this Section 2.21 for any costs incurred or reductions suffered with
respect to any date unless it shall have notified the Borrower that it will
demand compensation for such costs or reductions under paragraph (c) above not
more than six months after the later of (i) such date and (ii) the date on
which it shall have become aware of such costs or reductions.
SECTION 2.22. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
or maintained by such Lender hereunder, whereupon (y) any request by the
Borrower for Eurodollar Loans shall, as to such Lender only, be deemed a
request for an ABR Loan; and (z) any request by the Borrower to continue
Eurodollar Loans or to convert into Eurodollar Loans shall, as to such
Lender only, be deemed a request to convert into or continue as an ABR
Loan; in either case unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied
to repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans. Notwithstanding the foregoing, no Revolving Credit
Lender shall be entitled to compensation under this Section 2.22 with respect
to any Competitive Bid Loan and no Competitive Bid Loan shall be deemed
converted to an ABR Loan if such Lender knew or should have known of the
change giving rise to such request and of the impact of such change on the
cost of making such Competitive Bid Loans at the time of submission of the
Competitive Bid pursuant to which such Competitive Bid Loan shall have been
made.
(b) For purposes of this Section 2.22, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Loan;
in all other cases such notice shall be effective on the date of receipt by
the Borrower.
SECTION 2.23. Indemnity. The Borrower shall indemnify each
Lender against any loss or expense which such Lender may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of the
making of the Term Loans or any Borrowing hereunder the applicable conditions
set forth in Article IV, (b) any failure by the Borrower to borrow or to
refinance, convert or continue any Loan hereunder after irrevocable notice of
such borrowing, refinancing, conversion or continuation has been given
pursuant to Section 2.01, 2.06, 2.07, 2.15 or 2.16, (c) any payment,
prepayment or conversion of a Eurodollar Loan required by any other provision
of this Agreement or otherwise made or deemed made on a date other than the
last day of the Interest Period applicable thereto, (d) any default in payment
or prepayment of the principal amount of any Loan or any part thereof or
interest accrued thereon, as and when due and payable (at the due date
thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise) or (e) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part
thereof as a Eurodollar Loan. Such loss or reasonable expense shall be an
amount equal to the excess, if any, as reasonably determined by such Lender,
of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
converted or not borrowed, converted, continued, refinanced, paid or prepaid
(assumed to be the LIBO Rate applicable thereto) for the period from the date
of such payment, prepayment, conversion or failure to borrow, convert,
continue, refinance, pay or prepay to the last day of the Interest Period for
such Loan (or, in the case of a failure to borrow, convert, continue or
refinance, the Interest Period for such Loan which would have commenced on the
date of such failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid, converted or not borrowed, converted,
continued, refinanced, paid or prepaid for such period or Interest Period, as
the case may be. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error.
SECTION 2.24. Pro Rata Treatment. (a) Except as required under
Section 2.22, each payment or prepayment of principal of the Term Loans, each
payment of interest on the Term Loans, and each conversion of any portion of
the Term Loans to or continuation of any portion of the Term Loans as ABR
Loans or Eurodollar Loans shall be allocated among the Term Lenders in
accordance with their respective Term Pro Rata Shares. Each Term Lender
agrees that in computing such Lender's Term Pro Rata Share of the portion of
the Term Loans comprising Eurodollar Loans or ABR Loans, the Agent may, in its
discretion, round each Term Lender's percentage of each portion to the next
higher or lower whole dollar amount.
(b) Except as required under Section 2.22, each Borrowing of
Revolving Loans, each payment or prepayment of principal of any Revolving
Loans, each payment of interest on the Revolving Loans, each payment of the
Facility Fees, each reduction of the Revolving Credit Commitments or the LC
Commitments, and each refinancing of any Borrowing of Revolving Loans with,
conversion of any Borrowing of Revolving Loans to or continuation of any
Borrowing of Revolving Loans as a Borrowing of any Type (other than with
respect to Competitive Bid Borrowings) shall be allocated among the Revolving
Credit Lenders in accordance with their respective Revolver Pro Rata Shares.
Each Revolving Credit Lender agrees that in computing such Lender's portion of
any Revolving Loan Borrowing to be made hereunder, the Agent may, in its
discretion, round each Revolving Credit Lender's percentage of such Borrowing,
computed in accordance with Section 2.04, to the next higher or lower whole
dollar amount.
(c) All payments of principal of any Competitive Bid Borrowing
shall be allocated pro rata among the Revolving Credit Lenders participating
in such Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Bid Loans comprising such Borrowing. All payments of
interest on any Competitive Bid Borrowing shall be allocated pro rata among
the Revolving Credit Lenders participating in such Borrowing in accordance
with the respective amounts of accrued and unpaid interest on their
outstanding Competitive Bid Loans comprising such Borrowing.
(d) So long as the Loans have not become due and payable in full
pursuant to Section 7.02, and subject to the terms and conditions of this
Agreement, the Borrower shall designate whether any payment hereunder is to be
applied to the Term Loans, a Revolving Loan Borrowing or a Competitive Bid
Borrowing. After the Loans have become due and payable in full pursuant to
Section 7.02, all amounts remitted to the Agent shall be applied, subject to
the provisions of this Agreement, (i) first, to pay Obligations in respect of
any fees, expense reimbursements or indemnities then due to the Agent from the
Borrower under this Agreement or any other Loan Document; (ii) second, to pay
Obligations in respect of any fees, expense reimbursements or indemnities then
due to the Lenders and the Issuing Banks from the Borrower; (iii) third, to
pay interest due in respect of the Loans (ratably, in respect of Term Loans,
Revolving Loans and Competitive Bid Loans); (iv) fourth, to pay or prepay
principal of Loans, and to pay (or to the extent permitted herein, prepay or
provide cash collateral in respect of) Letters of Credit (ratably, in respect
of Term Loans, Revolving Loans, Competitive Bid Loans and Letters of Credit);
and (v) fifth, to the ratable payment of all other Obligations.
SECTION 2.25. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise (except pursuant to Section 2.29 or 9.04), or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans
(which, for purposes of this Section 2.25, shall include reimbursement
obligations with respect to LC Disbursements) as a result of which the unpaid
principal portion of its Loans shall be proportionately less than the unpaid
principal portion of the Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and
shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender, so that the aggregate unpaid
principal amount of the Loans and participations in Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of
all Loans then outstanding as the principal amount of its Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this
Section 2.25 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment
restored without interest. The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in a Loan
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrower to such Lender by reason thereof as fully as if such Lender had made
a Loan directly to the Borrower in the amount of such participation.
SECTION 2.26. Payments. (a) The Borrower shall make each
payment (including principal of or interest on the Loans or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at
its offices at 270 Park Avenue, New York, New York, in immediately available
funds. Any payment received after 12:00 (noon), New York City time, on any
date shall be deemed to have been received on the next succeeding Business
Day.
(b) Whenever any payment (including principal of or interest on
the Term Loans or any Revolving Credit Facility Loans or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may
be made on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of interest or Fees, if
applicable, unless, in the case of a Eurodollar Loan only, such next
succeeding Business Day would fall in the next calendar month, in which case
such payment shall be made on the next preceding Business Day.
SECTION 2.27. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.26, free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding taxes imposed on the net income of the Agent, any Issuing
Bank or any Lender (or any transferee or assignee thereof that is permitted by
Section 9.04, including a participation holder (any such entity being called a
"Transferee")) and franchise or similar taxes imposed on the Agent, any
Issuing Bank or any Lender (or Transferee) by the United States or any
jurisdiction under the laws of which the Agent, such Issuing Bank or any such
Lender (or Transferee) is organized or subject to such tax other than solely
as a result of the transactions provided for herein or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Lenders (or any Transferee),
any Issuing Bank or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.27) such
Lender (or Transferee), such Issuing Bank or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law;
provided, however, that no Transferee of any Lender shall be entitled to
receive any greater payment under this paragraph (a) than such Lender would
have been entitled to receive with respect to the rights assigned,
participated or otherwise transferred.
(b) In addition, the Borrower agrees to pay any present or
future stamp 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 or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender (or Transferee), the
Agent and each Issuing Bank for the full amount of Taxes and Other Taxes paid
by such Lender (or Transferee), the Agent or such Issuing Bank as the case may
be, and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted by the relevant taxing authority or other
Governmental Authority. Such indemnification shall be made within 30 days
after the date any Lender (or Transferee), the Agent or any Issuing Bank, as
the case may be, makes written demand therefor. If a Lender (or Transferee),
the Agent or an Issuing Bank shall become aware that it is entitled to receive
a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.27 or a credit in
respect of any Taxes or Other Taxes paid by Borrower pursuant to this Section
2.27 against taxes it would otherwise have owed that are not Taxes or Other
Taxes, it shall promptly notify the Borrower of the availability of such
refund or credit and shall, within 30 days after receipt of a request by the
Borrower, apply for such refund or credit at the Borrower's expense. If any
Lender (or Transferee), the Agent or any Issuing Bank receives a refund or it
becomes entitled to take a credit in respect of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower pursuant to this Section 2.27,
it shall promptly notify the Borrower of such refund or credit and shall,
within 30 days after receipt of a request by the Borrower (or promptly upon
receipt, if the Borrower has requested application for such refund pursuant
hereto), repay such refund or pay the amount of such credit, as the case may
be, to the Borrower (to the extent of amounts that have been paid by the
Borrower under this Section 2.27 with respect to such refund or credit), net
of all out-of-pocket expenses of such Lender, the Agent or such Issuing Bank
and without interest; provided that the Borrower, upon the request of such
Lender (or Transferee), the Agent or such Issuing Bank agrees to return such
refund or the amount of such credit (plus penalties, interest or other
charges) to such Lender (or Transferee), the Agent or such Issuing Bank in the
event such Lender (or Transferee), the Agent or such Issuing Bank is required
to repay such refund or is prohibited from taking such credit against taxes
that are not Taxes or Other Taxes. Nothing contained in this paragraph (c)
shall require any Lender (or Transferee), the Agent or any Issuing Bank to
make available any of its tax returns (or any other information relating to
its taxes which it deems to be confidential).
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Lender
(or Transferee), the Agent or any Issuing Bank the Borrower will furnish to
the Agent, at its address referred to in Section 9.01, the original or a
certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section
2.27 shall survive the payment in full of the Obligations hereunder.
(f) Each Lender, the Agent and each Issuing Bank that is
organized under the laws of a jurisdiction outside the United States shall, on
the Closing Date and, if legally able to do so, at the beginning of each of
its tax years thereafter, deliver to the Borrower such certificates, documents
or other evidence, as required by the Code or Treasury Regulations issued
pursuant thereto, including Internal Revenue Service Form 1001 or Form 4224
and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by such
Lender (or Transferee), the Agent or such Issuing Bank establishing that such
payment is (i) not subject to United States Federal withholding tax under the
Code because such payment is effectively connected with the conduct by such
Lender (or Transferee), the Agent or such Issuing Bank of a trade or business
in the United States or (ii) totally exempt from United States Federal
withholding tax, or subject to a rate of such tax that has been reduced to
zero under a provision of an applicable tax treaty. Unless the Borrower and
the Agent have received forms or other documents satisfactory to them
indicating that such payments hereunder are not subject to United States
Federal withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower or the Agent shall withhold taxes from
such payments at the applicable statutory rate.
(g) The Borrower shall not be required to pay any additional
amounts to any Lender (or Transferee), the Agent or any Issuing Bank in
respect of United States Federal withholding tax pursuant to paragraph (a)
above if the obligation to pay such additional amounts would not have arisen
but for a failure by the Lender (or Transferee), the Agent or such Issuing
Bank (if required to do so) to comply with the provisions of paragraph (f)
above; provided, however, that the Borrower shall be required to pay those
amounts to any Lender (or Transferee), the Agent or any Issuing Bank that it
was required to pay hereunder prior to the failure of such Lender (or
Transferee), the Agent or such Issuing Bank to comply with the provisions of
paragraph (f).
SECTION 2.28. Duty to Mitigate Additional Costs, Reductions in
Rate of Return and Taxes. Any Lender (or Transferee), the Agent or any
Issuing Bank claiming any amounts pursuant to Section 2.21 or 2.27 shall use
reasonable efforts (consistent with legal and regulatory restrictions) to
avoid any costs, reductions, Taxes or Other Taxes in respect of which such
amounts are claimed, including the filing of any certificate or document
reasonably requested by the Borrower or the changing of the jurisdiction of
its applicable lending office if such efforts would avoid the need for or
reduce the amount of any such amounts which would thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), the Agent or
such Issuing Bank, be otherwise disadvantageous to such Lender (or
Transferee), the Agent or such Issuing Bank.
SECTION 2.29. Assignment of Commitments Under Certain
Circumstances. In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.21, or the Borrower shall be required to
make additional payments to any Lender under Section 2.27, the Borrower shall
have the right, at its own expense, upon notice to such Lender and the Agent,
to require such Lender to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in Section 9.04) all its
interests, rights and obligations under this Agreement to another financial
institution which shall assume such obligations; provided that (i) no such
assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the assignee shall pay to the affected Lender
in immediately available funds on the date of such termination or assignment
the principal of and interest accrued to the date of payment on the Loans made
by it hereunder and all other amounts accrued for its account or owed to it
hereunder.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each of the
Lenders and Issuing Banks that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite corporate power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted by the
Borrower and the Subsidiaries following the Acquisition, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (d) in the case of the Borrower, has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents,
the Acquisition Documents and each other agreement or instrument provided for
herein to which it is or will be a party and to obtain extensions of credit
hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower of each of the Loan Documents, the borrowings
hereunder, the issuance of the Letters of Credit, and from and after the
Closing Date, the execution, delivery and performance by the Borrower of each
of the Acquisition Documents to which the Borrower is a party (a) have been
duly authorized by all requisite corporate and, if required, stockholder
action and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation to which the Borrower or any of its Affiliates shall be subject, or
of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture or other material
agreement or instrument to which the Borrower or any Subsidiary is a party or
by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document, when executed and delivered by the Borrower, will constitute, and
from and after the Closing Date, each Acquisition Document to which the
Borrower is a party will constitute, a legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally, or by
general equity principles, including but not limited to principles governing
the availability of the remedies of specific performance and injunctive
relief.
SECTION 3.04. Governmental Approvals. Except as set forth in
Schedule 3.04, the Borrower, CBC and the Borrower's Affiliates are not
required to obtain any consent or approval of, registration or filing with or
other action by any Governmental Authority in connection with the execution,
delivery and performance of the Loan Documents or Acquisition Documents,
except such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Lenders (a) Bakeries' consolidated balance sheets and
statements of operations, stockholders' equity and cash flows (i) as of and
for the fiscal year ended May 28, 1994, audited by and accompanied by the
opinion of Deloitte & Touche, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended November
12, 1994, certified by a Financial Officer of Bakeries and (b) Continental
Baking Group's balance sheets and statements of operations, stockholders'
equity and cash flows (x) as of and for the fiscal year ended September 24,
1994, audited by and accompanied by the opinion of Price Waterhouse, LLP,
independent public accountants, and (y) as of and for the fiscal quarter and
the portion of the fiscal year ended March 25, 1995. Such financial
statements present fairly in all material respects the financial condition and
results of operations of Bakeries and its consolidated subsidiaries and of
Continental Baking Group as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of Bakeries and its consolidated subsidiaries (including the
Borrower) and of Continental Baking Group as of the dates thereof that are
required to be disclosed under GAAP. Such financial statements were prepared
in accordance with GAAP applied on a consistent basis, except as set forth in
the notes to such financial statements. There has been no material adverse
change in the business, assets, operations or financial condition of Bakeries
and the Subsidiaries, taken as a whole, since November 12, 1994, or of
Continental Baking Group since March 25, 1995.
SECTION 3.06. Title to Properties; Possession Under Leases. (a)
Each of the Borrower and the Subsidiaries has good and valid title to, or
valid leasehold interests in, all its material properties and assets, except
for minor defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties and assets
for their intended purposes. All such material properties and assets are free
and clear of Liens, other than Liens referred to in paragraphs (A) through (J)
of Section 6.01(a).
(b) Each of the Borrower and the Subsidiaries has complied with
all material obligations under all material leases to which it is a party and
all such leases are in full force and effect. Each of the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
SECTION 3.07. Subsidiaries. Schedule 3.07 sets forth as of the
Documentation Completion Date a list of all Subsidiaries as well as a summary
description of the material assets and operations of each Subsidiary, the
issued and outstanding capital stock of each Subsidiary and the shares of such
capital stock owned by the Borrower or any other Subsidiary. As of the
Documentation Completion Date, the assets and operations of the Borrower and
the Subsidiaries account for substantially all the consolidated operating
assets and operations of Bakeries and its direct and indirect subsidiaries.
SECTION 3.08. Litigation; Compliance with Laws. (a) Except as set
forth in Schedule 3.08, there are not any actions, suits or proceedings at law
or in equity or by or before any Governmental Authority now pending or, to the
actual knowledge of the Borrower, threatened against or affecting the
Borrower, any Subsidiary or any business, property or rights of any such
Person (i) which involve any Loan Document or (ii) as to which there is a
likelihood of an adverse determination and which, if adversely determined,
would be likely, individually or in the aggregate, to result in a Material
Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default would be likely to result in a Material Adverse Effect.
SECTION 3.09. Agreements. Neither the Borrower nor any of the
Subsidiaries is in default in any manner under any provision of any indenture
or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any
of its properties or assets is or may be bound, where such default would be
likely to result in a Material Adverse Effect.
SECTION 3.10. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan or Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (i) to extend credit to others for the purpose of purchasing
Margin Stock, or to extend credit to others for the purpose of carrying stock
which will be Margin Stock after giving effect to the Loans, provided that the
Borrower shall provide such notice to the Agent of all purchases and carryings
of Margin Stock as the Agent may require or (ii) for any purpose which entails
a violation of the provisions of the Regulations of the Board, including
Regulations G, U and X. At the time of and after giving effect to the making
of the Term Loans and each Borrowing and the application of the proceeds
thereof, not more than 25% of the value (as determined in accordance with
Regulation U) of the assets which are subject to the negative pledge
provisions of Section 6.01 will consist of Margin Stock (unless such
limitation shall not be required for compliance with Regulation U as from time
to time in effect).
SECTION 3.11. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.12. Tax Returns. Each of the Borrower, the
Subsidiaries other than CBC and, to the Borrower's knowledge, CBC, have filed
or caused to be filed all Federal, state and local tax returns required to
have been filed by it and has paid or caused to be paid all taxes shown to be
due and payable on such returns or on any assessments received by it, except
taxes that are being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary, as the case may be, shall have set
aside on its books adequate reserves.
SECTION 3.13. No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Agent, any Lender or any Issuing Bank in written form in
connection with the negotiation of any Loan Document or included in any Loan
Document or delivered pursuant thereto contained, contains or will contain any
material misstatement of fact or omitted, omits or will omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading at
the time any such information, report, financial statement, exhibit or
schedule was, is or will be so furnished.
SECTION 3.14. Employee Benefit Plans. Each of the Borrower, CBC
and each ERISA Affiliate is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published
interpretations thereunder. No Reportable Event has occurred as to which the
Borrower, CBC or any ERISA Affiliate was required to file a report with the
PBGC, and the present value of all benefit liabilities under each Plan (based
on those assumptions used to fund such Plan) did not, as of the last annual
valuation date applicable thereto, exceed by more than $5,000,000 the value of
the assets of such Plan. Neither the Borrower, CBC nor any ERISA Affiliate
has incurred any Withdrawal Liability that could result in a Material Adverse
Effect. Neither the Borrower, CBC nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, and no Multiemployer Plan
is reasonably expected to be in reorganization or to be terminated where such
reorganization or termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be made to such
Plan or otherwise, in a Material Adverse Effect.
SECTION 3.15. Environmental and Safety Matters. Except as set
forth in Schedule 3.15, each of the Borrower and the Subsidiaries (in the case
of CBC, to the Borrower's knowledge) has complied with all Federal, state,
local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to environmental pollution or to environmental regulation
or control or to employee health or safety, except for instances of
non-compliance that, individually or in the aggregate, are not reasonably
likely to result in a Material Adverse Effect. Except as set forth in
Schedule 3.15, neither the Borrower nor any Subsidiary has received notices of
any material failure so to comply, which, if adversely determined,
individually or in the aggregate, would be reasonably likely to result in a
Material Adverse Effect. Except as set forth in Schedule 3.15, the Borrower
and the Subsidiaries do not generate, treat, store, transport, dispose of or
release at any bakery any hazardous wastes, hazardous substances, hazardous
materials, toxic substances, toxic pollutants or substances similarly
denominated, as those terms or similar terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act,
the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any
other applicable law relating to environmental pollution, in violation of any
law or any regulations promulgated pursuant thereto, except for violations
that, individually or in the aggregate, would not be reasonably likely to
result in a Material Adverse Effect. Except as set forth in Schedule 3.15,
the Borrower is aware of no events, conditions or circumstances involving
environmental pollution or contamination or employee health or safety that
could reasonably be expected to result in liability on the part of the
Borrower or any Subsidiary, except for such events, conditions or
circumstances that, individually or in the aggregate, would not be reasonably
likely to result in a Material Adverse Effect.
SECTION 3.16. CBC as a Subsidiary. The Acquisition shall occur
on the Closing Date. From and after the Closing Date, and until such time as
CBC is merged with and into the Borrower, CBC shall be a Subsidiary. It is
agreed and understood among the parties hereto that CBC shall be considered a
Subsidiary as of the Closing Date for purposes of each of the representations
and warranties contained in this Agreement and any other Loan Document.
ARTICLE IV. CONDITIONS PRECEDENT
The obligations of the Lenders to make Loans and the obligation of
the Issuing Banks to issue or extend the expiry of Letters of Credit (each of
the foregoing events being called a "Credit Event") from and after the Closing
Date, are subject to the satisfaction of all of the applicable conditions set
forth below:
SECTION 4.01. All Credit Events. On the date of each Credit
Event (other than (i) a continuation of a Loan as either an ABR Loan or a
Eurodollar Loan, (ii) a conversion of ABR Loans into Eurodollar Loans or
Eurodollar Loans into ABR Loans or (iii) a refinancing of any Borrowing that
does not increase the aggregate principal amount of Revolving Loans or
Competitive Bid Loans of any Lender outstanding):
(a) The Agent and, where applicable, an Issuing Bank shall have
received a notice of such Credit Event as required by Section 2.06,
Section 2.07 or Section 2.20(c).
(b) The representations and warranties set forth in Article III
shall be true and correct in all material respects on and as of the date
of such Credit Event with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part
to be observed or performed, and at the time of and immediately after
such Credit Event no Potential Event of Default or Event of Default
shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation
and warranty by the Borrower on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(b) The Agent, the Issuing Banks and the Lenders shall have
received all Fees and other amounts due and payable hereunder or under
the other Loan Documents on or prior to the Closing Date.
(c) The Existing Credit Arrangement (except for those provisions
which survive termination of such arrangement) shall have been or shall
simultaneously with the Credit Events occurring on the Closing Date be
terminated, all loans outstanding and other amounts owed to the lenders
thereunder shall have been or shall simultaneously with such Credit
Events be paid in full and all letters of credit outstanding thereunder
shall have been or shall simultaneously with such Credit Events become
subject to the provisions of this Agreement.
(d) The Agent, the Lenders and the Issuing Banks shall have
received a certificate signed by a Financial Officer of the Borrower
confirming that all conditions precedent to the Acquisition, including,
without limitation, those set forth in the Purchase Agreement, except
for delivery of the purchase price thereunder, have been fully satisfied
or waived, and that the Purchase Agreement has not been amended,
restated, supplemented or otherwise modified since the Documentation
Completion Date, unless such changes have been approved by the Required
Lenders.
(e) The Agent shall have received from the Borrower at least four
(4) Business Days' prior written notice of the date designated by the
Borrower to be the Closing Date; the Agent shall have promptly notified
each of the Lenders of the date designated as the Closing Date; and the
Agent shall not have received prior to the Closing Date written notice
from any Lender that one or more of the conditions precedent to the
initial funding of the Loans on the Closing Date have not been
satisfied.
(f) The Lenders, or the Agent on behalf of the Lenders, shall
have received from the Borrower the Notes and such other documents as
the Agent, any of the Lenders or their counsel, upon reasonable prior
notice to Borrower, may request, including, without limitation, those
documents listed on the List of Closing Documents substantially in the
form attached hereto as Exhibit K, each of which documents shall be in
form and substance satisfactory to the Lenders and the Agent.
(g) There shall be no litigation or administrative proceeding,
other than as disclosed on Schedule 3.08, or other legal or regulatory
developments, actual or threatened (including any proposed statute, rule
or regulation), that, in the judgment of any of the Lenders, involve a
reasonable possibility of a Material Adverse Effect or a material
adverse effect on the Acquisition.
(h) The Agent shall have received the Ralston Shareholder
Agreement, in the form of the appropriate exhibit to the Purchase
Agreement, together with all of the exhibits, schedules and other
attachments thereto, executed and delivered by each of the parties
thereto.
(i) The Agent shall have received the favorable written
opinions of counsel of Borrower and Sellers that are required to be
delivered pursuant to the Purchase Agreement, which opinions shall state
that the Agent, the Issuing Banks and the Lenders may rely thereon.
(j) There shall not have occurred, since the Documentation
Completion Date, any change that could reasonably be expected to result
in a Material Adverse Effect or a material adverse effect on the
Acquisition.
SECTION 4.03. Execution of the Agreement. On the Documentation
Completion Date:
(a) The Agent shall have received the favorable written
opinions of Shook, Hardy & Bacon P.C., counsel for the Borrower, and Ray
Sandy Sutton, Esq., Vice President, Corporate Secretary and General
Counsel of the Borrower, dated the Documentation Completion Date and
addressed to the Agent, the Issuing Banks and the Lenders, to the effect
set forth in Exhibits L and M, and the Borrower hereby instructs such
counsel to deliver such opinions to the Agent.
(b) The Agent shall have received (i) a copy of the certificate
or articles of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
State of Delaware, and a certificate as to the good standing of the
Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or an Assistant Secretary of the Borrower
dated the Documentation Completion Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws of the Borrower as in
effect on the Documentation Completion Date and at all times since a
date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of the Borrower authorizing the
execution, delivery and performance of the Loan Documents and the Credit
Events hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of the Borrower have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of the Borrower; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Issuing Banks, any of
the Lenders or their counsel or the Agent or its counsel may reasonably
request.
(c) The Agent shall have received a copy of the fully executed
Amendment No. 2 to the Senior Note Agreement.
(d) The Lenders shall be satisfied with all of the terms,
conditions and provisions of the Purchase Agreement, including all
schedules and exhibits thereto (including, without limitation, the
exhibit constituting the form of the Ralston Shareholder Agreement), and
the Agent shall have received the Purchase Agreement, together with all
of the exhibits, schedules and other attachments thereto and any
amendments thereof, executed and delivered by each of the parties
thereto.
SECTION 4.04. Termination of the Agreement. Unless otherwise
agreed by each of the parties to this Agreement, (i) if the first Credit Event
hereunder shall not have occurred by August 31, 1995, or (ii) the Purchase
Agreement shall have been terminated or materially modified without the
written consent of the Required Lenders, all Commitments under this Agreement
shall automatically terminate at such time without notice to the Borrower.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Agent, each Issuing
Bank and each Lender that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan or LC Disbursement, any Fees or any
other expenses or amounts payable under any Loan Document shall be unpaid,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Keep in
full force and effect its legal existence, except as otherwise expressly
permitted under Section 6.04.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights, trademarks
and trade names material to the conduct of its business; maintain and operate
substantially similar lines of business as those it is presently conducting
and operating; comply in all material respects with all applicable laws,
rules, regulations and orders of any Governmental Authority, whether now in
effect or hereafter enacted; and at all times maintain and preserve all
property material to the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times, except in each
case where the failure to do so would not result in a Material Adverse Effect.
SECTION 5.02. Insurance. Keep its material insurable real
properties adequately insured at all times by financially sound and reputable
insurers; maintain such other insurance, to such extent and against such
risks, including fire and other risks insured against by extended coverage and
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it as is customary with companies
in the same or similar businesses; and maintain such other insurance as may be
required by law.
SECTION 5.03. Obligations and Taxes. Pay its material
Indebtedness and other obligations promptly and in accordance with their terms
and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits
or in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that such payment and discharge shall not
be required with respect to any such Indebtedness, tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be contested in
good faith by appropriate proceedings and the Borrower or the Subsidiary, as
the case may be, shall have set aside on its books adequate reserves with
respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the
Agent, each Lender and each Issuing Bank:
(a) within 90 days after the end of each fiscal year, the
consolidated (and, at any time when Bakeries shall have one or more
Subsidiaries that individually or in the aggregate would constitute a
significant subsidiary within the meaning of Regulation S-X of the
Securities and Exchange Commission, consolidating) balance sheets and
statements of operations, stockholders' equity and cash flows, showing
the financial condition of Bakeries and its consolidated subsidiaries as
of the close of such fiscal year and the results of its operations and
the operations of such subsidiaries during such year, all audited by
Deloitte & Touche or other independent public accountants of recognized
national standing and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect
that such consolidated financial statements fairly present the financial
condition and results of operations of the Borrower on a consolidated
basis in accordance with GAAP consistently applied, provided, however,
that, at any time that Bakeries does not own 100% of the issued and
outstanding capital stock of the Borrower, the foregoing references to
Bakeries in this subsection (a) shall be deemed to be references to the
Borrower;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, the consolidated (and, at any time
when Bakeries shall have one or more Subsidiaries that individually or
in the aggregate would constitute a significant subsidiary within the
meaning of Regulation S-X of the Securities and Exchange Commission,
consolidating) balance sheets and statements of operations,
stockholders' equity and cash flows, showing the financial condition of
Bakeries and its consolidated subsidiaries as of the close of such
fiscal quarter and the results of its operations and the operations of
such subsidiaries during such fiscal quarter and the then elapsed
portion of such fiscal year, all certified by one of its Financial
Officers as fairly presenting the financial condition and results of
operations of Bakeries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments,
provided, however, that, at any time that Bakeries does not own 100% of
the issued and outstanding capital stock of the Borrower, the foregoing
references to Bakeries in this subsection (b) shall be deemed to be
references to the Borrower;
(c) concurrently with any delivery of financial statements under
(a) or (b) above a certificate of the accounting firm (in the case of
paragraph (a) above) or Financial Officer of the Borrower (in the case
of paragraph (b) above) opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (A) certifying that no Event of Default or Potential
Event of Default has occurred or, if such an Event of Default or
Potential Event of Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken
with respect thereto, and (B) setting forth computations in reasonable
detail satisfactory to the Agent calculating the EBITDA/Interest
Coverage and demonstrating compliance with the covenants contained in
Sections 6.01 through 6.05, 6.07, 6.08 and 6.12;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by Bakeries or the Borrower with the Securities and Exchange
Commission, or any governmental authority succeeding to any of or all
the functions of said Commission, or with any national securities
exchange, or distributed to its shareholders, as the case may be;
(e) promptly following the creation or acquisition thereof, notice
of any new subsidiary of Bakeries or the Borrower; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Bakeries, the Borrower or any Subsidiary, or compliance with the terms
of any Loan Document, as the Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Agent
and each Lender prompt written notice of the following:
(a) any Event of Default or Potential Event of Default,
specifying the nature and extent thereof and the corrective action (if
any) proposed to be taken with respect thereto;
(b) the filing or commencement of any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate of the Borrower which
questions the validity or enforceability of any Loan Document, the
Purchase Agreement or the Ralston Shareholder Agreement or which could
reasonably be anticipated to result in a Material Adverse Effect; and
(c) any other development that has resulted in, or could
reasonably be anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with
the applicable provisions of ERISA and (b) furnish to the Agent and each
Lender (i) as soon as possible, and in any event within 30 days after any
Responsible Officer of the Borrower or any ERISA Affiliate either knows or has
reason to know that any Reportable Event has occurred that alone or together
with any other Reportable Event could reasonably be expected to result in
liability of the Borrower to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer of the Borrower setting forth
details as to such Reportable Event and the action proposed to be taken with
respect thereto, together with a copy of the notice, if any, of such
Reportable Event given to the PBGC, (ii) promptly after receipt thereof, a
copy of any notice the Borrower or any ERISA Affiliate may receive from the
PBGC relating to the intention of the PBGC to terminate any Plan or Plans
(other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code) or to appoint a trustee to administer any Plan or Plans, (iii) within 10
days after the due date for filing with the PBGC pursuant to Section 412(n) of
the Code of a notice of failure to make a required installment or other
payment with respect to a Plan, a statement of a Financial Officer of the
Borrower setting forth details as to such failure and the action proposed to
be taken with respect thereto, together with a copy of such notice given to
the PBGC and (iv) promptly and in any event within 30 days after receipt
thereof by the Borrower or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Borrower or any
ERISA Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated
or in reorganization, in each case within the meaning of Title IV of ERISA.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and
permit any representatives designated by any Lender to visit and inspect the
financial records and the properties of the Borrower or any Subsidiary at
reasonable times and as often as requested and to make extracts from and
copies of such financial records, and permit any representatives designated by
any Lender to discuss the affairs, finances and condition of the Borrower or
any Subsidiary with the senior officers thereof and the independent
accountants therefor with prior notice to and, if requested by Borrower,
participation of a Financial Officer of the Borrower.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans and
Letters of Credit hereunder shall be used by the Borrower (i) to finance the
Acquisition on the Closing Date, (ii) to refinance certain existing
indebtedness of the Borrower and CBC on the Closing Date, (iii) to finance
additional acquisitions in an amount not to exceed $50,000,000 in the
aggregate for all periods and (iv) for general corporate purposes.
SECTION 5.09. Assets of the Borrower. Cause substantially all
the operating assets owned and operations conducted by Bakeries directly or
through subsidiaries on the date hereof to continue to be owned and conducted
directly by the Borrower (or a Person acquiring all or substantially all the
assets of the Borrower in a transaction permitted under Section 6.04 which
assumes all the obligations of the Borrower hereunder), and Subsidiaries (or
any such Person), at all times (except as a result of asset sales permitted by
Section 6.04, other than asset sales to Affiliates or Persons who will become
Affiliates).
SECTION 5.10 Acquisition; Merger of CBC into the Borrower. Cause
CBC to be merged into the Borrower no later than January 31, 1996.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with the Agent, each Issuing
Bank and each Lender that, so long as this Agreement shall remain in effect or
the principal of or interest on any Loan or LC Disbursement, any Fees or any
other expenses or amounts payable under any Loan Document shall be unpaid,
unless the Required Lenders shall otherwise consent in writing, the Borrower
will not, and will not cause or permit any of the Subsidiaries to:
SECTION 6.01. Liens. (a) Create, incur, assume or permit to
exist any Lien on or with respect to any property or assets (including stock
or other securities of any Person) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except (i) Liens
set forth in paragraphs (A) through (J) below:
(A) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Documentation Completion Date and set forth
in Schedule 6.01; provided that on the Closing Date, the Borrower shall
provide to the Agent a supplement to Schedule 6.01, which supplement
shall list any and all Liens on property or assets of CBC existing on
the Closing Date (other than those of a type described in sub-
paragraphs (C) through (J) below); provided, further, that such Liens
shall secure only those obligations which they secure on the
Documentation Completion Date, or, in the case of CBC, on the Closing
Date;
(B) any Lien existing on any property or asset (other than any
property or asset owned by CBC) (i) prior to the acquisition thereof by
the Borrower or any Subsidiary; provided that (1) such Lien is not
created in contemplation of or in connection with any such acquisition
and (2) such Lien does not apply to any other property or assets of the
Borrower or any Subsidiary, or (ii) belonging to any Person prior to
such Person becoming a Subsidiary pursuant to an acquisition permitted
by the terms of this Agreement; provided that (1) such Lien is not
created in contemplation of or in connection with such acquisition and
(2) such Lien does not apply to any other property or assets of the
Borrower or any other Subsidiary;
(C) Liens for taxes not yet due or that are being contested in
compliance with Section 5.03;
(D) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due or that are being
contested in compliance with Section 5.03;
(E) pledges and deposits made in the ordinary course of business
in compliance with workmen's compensation, unemployment insurance and
other social security laws or regulations; and deposits to secure the
performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(F) cash collateral provided to the issuer of a letter of credit,
including, without limitation, a Letter of Credit, at the time such
letter of credit is issued or renewed, in an amount not to exceed the
amount of such letter of credit, which letter of credit has been issued
solely to support obligations for which pledges or deposits could
otherwise be made pursuant to subsection 6.01(a)(E) (but not in
duplication of any such pledge or deposit); provided, that the aggregate
amount of cash collateral granted under this subsection (F) cannot
exceed $150,000,000; provided, further, that at the time any such cash
collateral is given, either (x) an Event of Default or Potential Event
of Default (both as defined in this Agreement and in the Senior Note
Agreement) shall have occurred and be continuing or (y) the "Required
Holders" (as defined in the Senior Note Agreement) shall have consented
to the granting of such collateral;
(G) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(H) purchase money security interests (including Liens
comprising the interest of any lessor in respect of any Capital Lease)
in real property, improvements thereto or equipment hereafter acquired
(or, in the case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (1) such security interests are incurred, and
the Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (2) the Indebtedness secured thereby does
not exceed the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (3) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary other than the
immediate proceeds of such real property, improvements or equipment;
(I) any attachment or judgment Lien, unless the judgment it
secures shall, individually or together with other judgments, at the
time cause an Event of Default under paragraph (j) of Article VII; and
(J) renewals, replacements or extensions of Liens set forth in
paragraphs (A), (B) or (H) above; provided that the principal amount of
Indebtedness secured by such Lien immediately prior thereto is not
increased (except by the amount of interest accrued and unpaid on such
Indebtedness and secured by such Lien at such time) and such Lien is not
extended to other property;
and (ii) notwithstanding the foregoing, but subject to Section 6.08(b), the
Borrower or any Subsidiary may directly create, incur, assume or permit to
exist any Lien securing Indebtedness of the Borrower or any Subsidiary
otherwise prohibited by clause (i) of this Section 6.01(a) so long as no Event
of Default (x) shall have occurred or be continuing at the time such
Indebtedness is incurred and such Lien permitted under this clause (ii) is
created, incurred or assumed or (y) shall result from the incurrence of such
Indebtedness and the creation, incurrence or assumption of such Lien; and
(b) Permit any Senior Notes to be secured by any Lien unless the
obligations of the Borrower under this Agreement are equally and ratably
secured for so long as such Senior Notes are secured.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which
it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a "Sale and Lease-Back Transaction");
provided that the Borrower or a Subsidiary may enter into any Sale and
Lease-Back Transaction if (a) at the time of such Sale and Lease-Back
Transaction no Event of Default shall have occurred and be continuing, (b) the
proceeds from the sale of the subject property shall be at least equal to 80%
of its fair market value, and (c) the aggregate amount of all Attributable
Debt permitted by virtue of this Section 6.02 shall be permitted pursuant to
Section 6.08(b).
SECTION 6.03. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in (all the foregoing being collectively
called "Investments"), any other Person, except:
(a) Investments existing on the date hereof and set forth on
Schedule 6.03;
(b) Permitted Investments;
(c) intercompany Investments in Bakeries (but only to the extent
used to purchase the capital stock of Bakeries pursuant to a stock
repurchase program authorized by the Board of Directors of Bakeries),
the Borrower or any Subsidiary; provided that no Investment pursuant to
this clause (c) shall consist of the transfer of any asset other than
cash;
(d) travel advances, relocation advances and other loans or
advances by the Borrower or any Subsidiary to employees in the ordinary
course of business;
(e) loans to employees not to exceed $10,000,000 in the
aggregate outstanding at any time to finance purchases from the Borrower
or Bakeries of equity securities;
(f) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction
or partial satisfaction thereof from financially troubled account
debtors to the extent necessary in the judgment of the Borrower in order
to prevent or limit loss;
(g) other loans and Investments not to exceed $25,000,000 in the
aggregate outstanding at any time; and
(h) acquisitions permitted by Section 6.04(c), including, without
limitation, the Acquisition.
SECTION 6.04. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) In the case of the Borrower, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) unless: (i) the Borrower shall be
the surviving corporation, or (ii) the successor entity which acquires the
Borrower or its assets shall expressly assume all obligations of the Borrower
hereunder and, in either case, (iii) after such merger, consolidation, sale,
lease or conveyance, (x) the Borrower or such successor entity (A) shall not
be in default hereunder and (B) would be permitted to incur an additional $1
of Funded Debt under Section 6.08 and (y) on a consolidated pro forma basis
giving effect to such transaction Bakeries and any other Person of which the
Borrower shall be a subsidiary (A) would have been in compliance with Section
6.07 as of the most recent fiscal quarter end and (B) would be permitted to
incur an additional $1 of Funded Debt under Section 6.08, in each case with
all references to the Borrower in Section 6.07 or 6.08 or in the definitions
of the terms employed therein being deemed references to Bakeries or such
other Person, as the case may be; provided, however, that notwithstanding the
foregoing, at any time a Subsidiary may merge with and into the Borrower, or
merge with and into or consolidate with another Subsidiary.
(b) Sell, transfer, lease or otherwise dispose of any asset
(other than any securities issued by Bakeries and contributed by Bakeries to
the Borrower) other than (i) dispositions in the ordinary course of business,
(ii) sales for cash in an amount, or other property having a value, not less
than the fair market value of such asset, provided, that such property
received by the Borrower does not consist of equity or debt instruments of the
buyer (other than debt instruments which, in the aggregate for all such sales,
do not have an outstanding principal balance in excess of $1,000,000) or (iii)
dispositions pursuant to requirements of law or orders or directives of
Governmental Authorities.
(c) Purchase, lease or otherwise acquire (in one transaction or
a series of transactions) any capital stock or all or any substantial part of
the assets (other than inventory or real property purchased in the ordinary
course of business) of any Person unless (i) no Potential Event of Default or
Event of Default shall have occurred and be continuing and (ii) such Person
shall be engaged, or such assets shall be used or intended by the Borrower for
use, in one or more lines of business substantially similar to those in which
the Borrower is engaged on the date hereof.
SECTION 6.05. Dividends and Distributions. Declare or pay,
directly or indirectly, any dividend or make any other distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, with respect to any shares of its capital stock or the
purchase of shares of the capital stock of Bakeries (the foregoing
transactions being collectively called "Restricted Payments"); provided that
(a) the Borrower may declare and pay dividends payable solely in shares of its
common stock, (b) any Subsidiary may make Restricted Payments to the Borrower
or another Subsidiary and (c) the Borrower may make additional Restricted
Payments of cash and securities of the Borrower (each, an "Additional
Restricted Payment") so long as immediately after giving effect to any such
proposed Additional Restricted Payment, (x) no Event of Default shall have
occurred and be continuing and (y) the aggregate amount of all such Additional
Restricted Payments made on or after the Documentation Completion Date shall
not exceed the sum of (i) $20,000,000 and (ii) 75% of Consolidated Net Income
for the period beginning on June 4, 1995 and ending on the last day of the
most recent fiscal quarter for which financial statements shall have been
delivered pursuant to Section 5.04 (taken as a single accounting period). For
purposes of the foregoing, each Additional Restricted Payment made in
securities of the Borrower shall be valued at the fair market value of such
securities at the time such Additional Restricted Payment is made.
SECTION 6.06. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that as long as no Event of Default or Potential Event of Default shall have
occurred and be continuing, the Borrower or any Affiliate may engage in any of
the foregoing transactions in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Affiliate than
could be obtained on an arm's-length basis from unrelated third parties.
SECTION 6.07. Minimum Consolidated Net Worth. Permit
Consolidated Net Worth as of the end of any fiscal quarter to be less than the
sum of (i) $350,000,000 and (ii) 25% of Consolidated Net Income (if positive)
for the period (taken as a single accounting period) commencing with the
fiscal quarter beginning on June 4, 1995 and ending on the last date of the
quarter as to which compliance with this covenant is being determined.
SECTION 6.08. Limitation on Indebtedness. (a) Create, incur,
Guarantee or permit to exist any Funded Debt; provided, however that the
Borrower and its Subsidiaries may create, incur, Guarantee or permit to exist
any Funded Debt so long as the consolidated Funded Debt of the Borrower and
the Subsidiaries, determined in accordance with GAAP, shall not exceed (i) at
any time prior to the second anniversary of the Closing Date, 65% of
Consolidated Long-Term Capitalization or (ii) at all times thereafter, 55% of
Consolidated Long-Term Capitalization.
(b) Permit the sum of (i) all Indebtedness (excluding
Attributable Debt) secured by Liens permitted under clause (ii) of Section
6.01(a), plus (ii) all Attributable Debt permitted under Section 6.02, plus,
without duplication, (iii) all Indebtedness of all Subsidiaries (other than
Indebtedness owed to the Borrower) to exceed the lesser of $70,000,000 or 20%
of Consolidated Net Worth.
SECTION 6.09. Fiscal Year. Change its fiscal year without the
consent of the Agent; provided, however, that a Subsidiary may change its
fiscal year to coincide with the Borrower's fiscal year without the consent of
the Agent.
SECTION 6.10. Amendments to Senior Note Agreement. Amend, modify
or otherwise change any affirmative or negative covenant or event of default
in the Senior Note Agreement so as to make the provisions thereof more
restrictive than the corresponding provision of this Agreement unless such
corresponding provision shall simultaneously be amended in a like manner.
SECTION 6.11. Subsidiary Stock and Indebtedness.
(a) Directly or indirectly sell, assign, pledge or otherwise
dispose of any Indebtedness of or any shares of stock of (or warrants, rights
or options to acquire stock of) any Subsidiary except to a wholly-owned
Subsidiary and except directors' qualifying shares if required by applicable
law and except that, subject to Section 6.04, shares of stock of a Subsidiary
may be sold for a cash consideration at least equal to the fair value thereof
(as determined in good faith by the Board of Directors of the Borrower) at the
time of such sale if such Subsidiary would not thereby cease to be a
Subsidiary;
(b) permit any Subsidiary directly or indirectly to sell,
assign, pledge or otherwise dispose of any Indebtedness of the Borrower or any
other Subsidiary, or any shares of stock of (or warrants, rights or options to
acquire stock of) any other Subsidiary, except to the Borrower or a
wholly-owned Subsidiary or as directors' qualifying shares if required by
applicable law and except that, subject to Section 6.04, shares of stock of a
Subsidiary may be sold for a cash consideration at least equal to the fair
value thereof (as determined in good faith by the Board of Directors of the
Borrower) at the time of such sale if such Subsidiary would not thereby cease
to be a Subsidiary;
(c) permit any Subsidiary to have outstanding any shares of
preferred stock other than shares of preferred stock which are owned by the
Borrower or a wholly-owned Subsidiary or which are outstanding on the date of
this Agreement and are reflected in Schedule 6.11; or
(d) permit any Subsidiary directly or indirectly to issue or
sell (including, without limitation, in connection with a merger or
consolidation of a Subsidiary otherwise permitted by Section 6.04) any shares
of its stock (or warrants, rights or options to acquire its stock) (except
directors' qualifying shares if required by applicable law) if as a result of
such transaction such Subsidiary would thereby cease to be a Subsidiary;
provided that, subject to compliance with Section 6.04, all Indebtedness and
shares of stock of any Subsidiary owned by the Borrower and the other
Subsidiaries may be simultaneously sold as an entirety for a cash
consideration at least equal to the fair value thereof (as determined in good
faith by the Board of Directors of the Borrower) at the time of such sale if
such Subsidiary does not at the time own any stock of any other Subsidiary
which is not also being simultaneously sold as an entirety in compliance with
this provision and Section 6.04 if (i) such Subsidiary does not own any
Indebtedness of the Borrower or any other Subsidiary or (ii) if such
Subsidiary does own any Indebtedness of the Borrower or any Subsidiary, then
immediately after giving effect to such transaction the Borrower could incur
at least $1 of additional Funded Debt in compliance with Section 6.08;
provided further that shares of stock of Subsidiaries owned by the Borrower
and the other Subsidiaries may be disposed of in connection with a sale or
other disposition by the Borrower of all or substantially all of its assets in
compliance with Section 6.04.
SECTION 6.12. Interest Coverage Ratio. Permit EBITDA/Interest
Coverage for any period of four consecutive fiscal quarters to be less than
3.0 to 1.0.
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. Events of Default. The happening of any of the
following events shall be an "Event of Default":
(a) any representation or warranty made or deemed made by the
Borrower in or in connection with any Loan Document or the Credit Events
hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other
instrument furnished in connection with or pursuant to any Loan Document
by any senior officer of the Borrower, shall prove to have been false or
misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any
Loan or LC Disbursement or any Fee or any other amount (other than an
amount referred to in (b) above) due under any Loan Document when and as
the same shall become due and payable, and such default shall continue
unremedied for a period of five days;
(d) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05(a), 5.08, 5.09, 6.02, 6.04,
6.05, 6.07, 6.08, 6.09, 6.10, 6.11 or 6.12;
(e) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.05(b) or (c) or in Sections 6.01 (but
only if the default involves an amount of impermissible Indebtedness in
excess of $1,000,000), 6.03 (but only if the default involves
impermissible Investments in an amount in excess of $1,000,000) or 6.06
and such default shall continue unremedied for a period of 10 days;
(f) default shall be made in the due observance or performance
by the Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than defaults specified
in (b), (c), (d) or (e) above) and such default shall continue
unremedied for a period of 30 days after notice thereof from the Agent
or any Lender to the Borrower;
(g) Bakeries, the Borrower or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $5,000,000, when and
as the same shall become due and payable (after expiration of any
applicable grace period), or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect
of any failure referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on its or their
behalf to cause, such Indebtedness to become due prior to its stated
maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Bakeries, the Borrower or any
Subsidiary, or of a substantial part of the property or assets of
Bakeries, the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Bakeries, the Borrower or any
Subsidiary or for a substantial part of the property or assets of
Bakeries, the Borrower or a Subsidiary or (iii) the winding-up or
liquidation of Bakeries, the Borrower or any Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) Bakeries, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or the
filing of any petition described in (h) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Bakeries, the Borrower
or any Subsidiary or for a substantial part of the property or assets of
Bakeries, the Borrower or any Subsidiary, (iv) file an answer admitting
the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $15,000,000 shall be rendered against
Bakeries, the Borrower, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any judgment
creditor shall levy upon assets or properties of Bakeries, the Borrower
or any Subsidiary to enforce any such judgment;
(k) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(1) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $5,000,000 and, within 30 days after the reporting of any such
Reportable Event to the Agent or after the receipt by the Agent of the
statement required pursuant to Section 5.06, the Agent shall have
notified the Borrower in writing that (i) the Required Lenders have made
a determination that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are
reasonable grounds (A) for the termination of such Plan or Plans by the
PBGC, (B) for the appointment by the appropriate United States District
Court of a trustee to administer such Plan or Plans or (C) for the
imposition of a lien in favor of a Plan and (ii) as a result thereof an
Event of Default exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or Plans; or
the PBGC shall institute proceedings to terminate any Plan or Plans;
(1) (i) the Borrower, CBC or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower, CBC
or such ERISA Affiliate does not have reasonable grounds for contesting
such Withdrawal Liability or is not in fact contesting such Withdrawal
Liability in a timely and appropriate manner and (iii) the amount of the
Withdrawal Liability specified in such notice, when aggregated with all
other amounts required to be paid to Multiemployer Plans in connection
with Withdrawal Liabilities (determined as of the date or dates of such
notification), exceeds $5,000,000;
(m) the Borrower, CBC or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Borrower, CBC and
the Borrower's ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $1,000,000; or
(n) there shall have occurred a Change in Control.
SECTION 7.02. Remedies. (a) Upon the occurrence of an Event of
Default described in paragraph (h) or (i) of Section 7.01, (x) the Commitments
shall automatically terminate, and (y) the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default other than an
Event of Default described in paragraph (h) or (i) of Section 7.01, and at any
time thereafter during the continuance of such Event of Default, by notice to
the Borrower, the Agent, upon the appropriate request described below, shall
take any or all of the following actions, at the same or different times:
(i) at the request of the Required Revolving Credit
Lenders, shall terminate forthwith the Revolving Credit Commitments;
(ii) at the request of the Required Term Lenders, shall
terminate forthwith the Term Loan Commitments (if at the time of such
Event of Default the Closing Date has not yet occurred); and
(iii) at the request of the Required Lenders, declare the
Loans then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and
under any other Loan Document shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary
notwithstanding.
ARTICLE VIII. THE AGENT
SECTION 8.01. Appointment. In order to expedite the transactions
contemplated by this Agreement, Chemical Bank is hereby appointed to act as
Agent, on behalf of the Lenders and the Issuing Banks. Each of the Lenders
and the Issuing Banks hereby irrevocably authorizes the Agent to take such
actions on its behalf and to exercise such powers as are specifically
delegated to the Agent by the terms and provisions hereof and of the other
Loan Documents, together with such actions and powers as are reasonably
incidental thereto. The Agent is hereby expressly authorized by the Lenders
and the Issuing Banks, without hereby limiting any implied authority, and the
Agent hereby agrees, (a) to receive on behalf of the Lenders and the Issuing
Banks all payments of principal of and interest on the Loans and the LC
Disbursements and all other amounts due to the Lenders and the Issuing Banks
hereunder, and promptly to distribute to each Lender and Issuing Bank its
proper share of each payment so received; (b) to give notice on behalf of each
of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Lender and Issuing Bank
copies of all notices, financial statements and other materials delivered by
the Borrower pursuant to this Agreement as received by the Agent.
SECTION 8.02. Nature of Duties. The Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
or in the other Loan Documents. The Agent's duties shall be mechanical and
administrative in nature. The Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender or any Issuing
Bank. Nothing in this Agreement or any of the other Loan Documents, expressed
or implied, is intended to or shall be construed to impose upon the Agent any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. With respect to the taking
or refraining from taking any action hereunder, if the Agent seeks the consent
or approval of (i) the Required Lenders, the Agent shall send notice thereof
to each Lender; (ii) the Required Term Lenders, the Agent shall send notice
thereof to each Term Lender; and (iii) the Required Revolving Credit Lenders,
the Agent shall send notice thereof to each Revolving Credit Lender. The
Agent shall promptly notify each Lender at any time that the Required Lenders,
the Required Term Lenders, the Required Revolving Credit Lenders or, where
expressly required, all of the Lenders, have instructed the Agent to act or
refrain from acting pursuant hereto.
SECTION 8.03. Rights, Exculpation, Etc. Neither the Agent nor
any of its directors, officers, employees or agents shall be liable as such
for any action taken or omitted by any of them except for its or his own gross
negligence or wilful misconduct, or be responsible for any statement, warranty
or representation herein or the contents of any document delivered in
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by the Borrower of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agent
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with
written instructions signed by the Required Lenders, the Required Term
Lenders, the Required Revolving Credit Lenders or all of the Lenders, as
appropriate, and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on
all the Lenders and the Issuing Banks. The Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed
or sent by the proper Person or Persons. Neither the Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by any
Lender or Issuing Bank of any of its obligations hereunder or to any Lender or
Issuing Bank on account of the failure of or delay in performance or breach by
any other Lender or Issuing Bank or the Borrower of any of their respective
obligations hereunder or under any other Loan Document or in connection
herewith or therewith. The Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the advice
of legal counsel selected by it with respect to all matters arising hereunder
and shall not be liable for any action taken or suffered in good faith by it
in accordance with the advice of such counsel.
The Lenders and the Issuing Banks hereby acknowledge that the
Agent shall be under no duty to take any discretionary action permitted to be
taken by it pursuant to the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Lenders.
SECTION 8.04. Successor Agent; Resignation of the Agent. Subject
to the appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by notifying the Lenders, the Issuing Banks and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor acceptable to the Borrower. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000 or an Affiliate
of any such bank, and which shall be acceptable to the Borrower. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
SECTION 8.05. The Agent Individually. With respect to the Loans
made by it hereunder, Chemical Bank, in its individual capacity and not as
Agent, shall have the same rights and powers as any other Lender and may
exercise the same as though it was not the Agent, and Chemical Bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower, any Subsidiary or any other Affiliate
thereof as if it was not the Agent.
SECTION 8.06. Indemnification. Each Lender agrees (i) to
reimburse the Agent, on demand, in the amount of its Pro Rata Share of any
expenses incurred for the benefit of the Lenders or the Issuing Banks by the
Agent, including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders or the Issuing Banks, which
shall not have been reimbursed by the Borrower and (ii) to indemnify and hold
harmless the Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such Pro Rata Share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against it in its
capacity as the Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower; provided that no
Lender shall be liable to the Agent under clause (i) or (ii) above for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Agent or any of its directors,
officers, employees or agents.
SECTION 8.07. Independent Credit Analysis. Each Lender and
Issuing Bank acknowledges that it has, independently and without reliance upon
the Agent or any other Lender or Issuing Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender and Issuing Bank also
acknowledges that it will, independently and without reliance upon the Agent
or any other Lender or Issuing Bank and based on such documents and
information as it shall from time to time deem appropriate, make its own
credit analysis and decision to make Loans hereunder from and after the
Closing Date and continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, as follows:
(a) if to the Borrower, to it at 12 East Armour Boulevard, P.O.
Box 419627, Kansas City, Missouri 64141, Attention of Mr. Ray Sandy
Sutton, Vice President, Corporate Secretary and General Counsel
(Telecopy No. 816-561-6600);
(b) if to Chemical Bank, to it at 270 Park Avenue, New York,
New York 10017, Attention of Christopher C. Wardell, Managing Director,
Telecopy No. (212) 270-3860), with a copy to Chemical Securities Inc.,
10 South LaSalle, Chicago, Illinois 60603, Attention of Steven J.
Faliski (Telecopy No. (312) 443-1964);
(c) if to any Issuing Bank, to it at the address for notices
specified in the applicable Issuing Bank Agreement; and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto. All notices and
other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or
sent by telecopy, or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or
mailed (properly addressed) to such party as provided in this Section
9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and the Issuing Banks and shall survive the making by the Lenders of
the Loans and the issuance by the Issuing Banks of Letters of Credit,
regardless of any investigation made by the Lenders or the Issuing Banks or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agent and
when the Agent shall have received copies hereof which, when taken together,
bear the signatures of each Lender, and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Agent, each Lender and Issuing Bank
and their respective successors and assigns, except that the Borrower shall
not have the right to assign its rights or obligations hereunder or any
interest herein without the prior consent of the Issuing Banks and all the
Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Agent, the
Issuing Banks or the Lenders that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more Eligible Assignees all
or a percentage of that Lender's interests, rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of the
Loans owing to it, the Notes held by it and its Commitments); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the Agent, the Borrower and, if any such assignment
includes all or a portion of the assignor's LC Commitment, the Issuing Banks
must give their prior written consent to such assignment (which consent of the
Agent, the Borrower and, if required, the Issuing Banks shall not be
unreasonably withheld), (ii) the aggregate amount of the Commitments of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Agent an Assignment and
Acceptance, and such Eligible Assignee shall deliver to the Agent a processing
and recordation fee of $2,500 and (iv) such Eligible Assignee, if it shall not
be a Lender, shall deliver to the Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days (except as otherwise
agreed by the assignor, the assignee and the Agent) after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Revolving Credit Lender and/or a Term Lender, as
the case may be, under this Agreement and the other Loan Documents and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.21, 2.23, 2.27 and 9.05,
as well as to any interest and Fees accrued for its account and not yet paid).
Notwithstanding the foregoing, any Revolving Credit Lender
assigning rights and obligations under this Agreement may retain any
Competitive Bid Loans made by it outstanding at such time and in such case
shall retain its rights hereunder in respect of any Loans so retained until
such Loans have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim and
that its Commitments and/or the outstanding balances of its Loans, in each
case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement,
any other Loan Document, or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto or
thereto, or the financial condition of the Borrower, CBC or any Subsidiary or
the performance or observance by the Borrower, CBC or any Subsidiary of any of
its obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance and that it is an Eligible Assignee; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
5.04 and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the
Agent, such assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (vi)
such assignee appoints and authorizes the Agent to take such action as Agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at one of its offices in The City
of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive in the absence of manifest error and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower and any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower,
the Agent, and the Issuing Banks to such assignment, the Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower,
the Lenders and the Issuing Banks.
(f) Upon the acceptance by the Agent of any Assignment and
Acceptance, the parties to such Assignment and Acceptance may at any time
request that a new Term Loan Note, a new Revolving Loan Note and/or a new
Competitive Bid Note be issued to the Lender assignee by (i) providing written
notice of such request to the Agent and the Borrower and (ii) delivering to
the Borrower such assigning Lender's Term Loan Note, Revolving Loan Note
and/or Competitive Bid Note for cancellation and substitution; provided that
the Competitive Bid Note shall only be so delivered if the assignor is
assigning all of its Revolving Credit Commitment; provided, further, that if
the Revolving Credit Lender is assigning all of its Revolving Credit
Commitment, and such Lender is retaining any outstanding Competitive Bid
Loans, the Competitive Bid Note shall be delivered when such Competitive Bid
Loans have been paid in full. With respect to each such Note so delivered,
promptly following receipt by the Borrower of any such notice and such Note,
and verification from the Agent that the applicable Assignment and Acceptance
shall have been accepted by the Agent, the Borrower forthwith shall cause to
be executed, and shall deliver to the Lender assignee, a new Note to the order
of the assignee and, if applicable, a replacement Note to the order of the
Lender assignor, and such Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of the assigning Lender's
surrendered Note issued by the Borrower immediately prior to the acceptance by
the Agent of the applicable Assignment and Acceptance; provided, however, that
each Competitive Bid Note shall be in the principal amount of the Aggregate
Revolving Credit Commitments. The Borrower shall immediately upon delivery of
such new Note(s), cancel the original Note delivered by the Lender assignor to
the Borrower.
(g) Each Lender may without the consent of the Borrower, the
Agent or any Issuing Bank sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing
to it); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be entitled
to the benefit of the cost protection and indemnity provisions contained in
Sections 2.21, 2.23, 2.27 and 9.05 to the same extent as if they were Lenders
(except that no participant shall be entitled to claim any amount greater than
its pro rata share of the amount that could have been claimed by the Lender
from which it acquired its participation) and (iv) the Borrower, the Agent,
the Issuing Banks and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing any fees
payable hereunder (other than Issuing Bank Fees) or the amount of principal of
or the rate at which interest is payable on the Loans or LC Disbursements,
extending the final maturity of the Loans or any date fixed for the payment of
interest on the Loans or LC Disbursements or any Fees or extending the
Commitments).
(h) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant
to this Section 9.04, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrower and the
Subsidiaries furnished to such Lender by or on behalf of the Borrower;
provided that, prior to any such disclosure of information designated by the
Borrower as confidential, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information.
(i) Any Lender may at any time pledge or assign all or any
portion of its rights under this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a Lender
from any of its obligations hereunder.
(j) The Borrower shall not assign or delegate any of its rights
or duties hereunder without the consent of each Lender.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to
pay all reasonable out-of-pocket expenses incurred by the Agent in connection
with the preparation of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall
be consummated) or incurred by the Agent, any Issuing Bank or any Lender in
connection with the enforcement or protection of their rights in connection
with this Agreement and the other Loan Documents or in connection with the
Loans made or Letters of Credit issued hereunder, including in each case the
reasonable fees, charges and disbursements of counsel for the Agent, and, in
connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel for the Agent, any Issuing Bank
or any Lender. The Borrower further agrees that it shall indemnify the Agent,
the Issuing Banks and the Lenders from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental Authority
by reason of the execution and delivery or enforcement of this Agreement or
any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, each Issuing
Bank, each Lender and each of their respective directors, officers, employees,
attorneys and agents (each such Person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all liabilities, damages,
obligations, losses, penalties, actions, judgments, suits, costs and expenses
which (if such liabilities, damages, obligations, losses, penalties, actions,
judgments, suits, costs and expenses arise in a judicial forum) are found in a
final judgment by a court of competent jurisdiction, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of any third party claim, litigation, investigation or
proceeding (whether or not any Indemnitee shall be party thereto) relating to,
in any way connected with, or as a result of (i) the execution or delivery of
this Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, or (ii) the use of the Letters of Credit or
the proceeds of the Loans (a "Third Party Claim"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such liabilities, damages, obligations, losses, penalties, actions, judgments,
suits, costs and expenses are found in a final judgment by a court of
competent jurisdiction to have resulted from the gross negligence or wilful
misconduct of such Indemnitee; provided further that (A) each Indemnitee shall
promptly notify the Borrower in writing upon becoming aware of the initiation
of any Third Party Claim against it, (B) the Borrower shall be entitled to
participate in the defense of any such Third Party Claim and, if the Borrower
so chooses, to assume the defense, at the Borrower's expense, of any such
Third Party Claim with counsel selected by the Borrower (it being understood
that any Indemnitee shall have the right to participate in such defense and
employ counsel separate from the counsel employed by the Borrower, and that
such counsel shall be at the expense of such Indemnitee unless such Indemnitee
shall have been advised by counsel that there may be legal defenses available
to it that are inconsistent with or in addition to those available to the
Borrower, in which case such counsel shall be at the expense of the Borrower)
and (C) no Indemnitee shall settle any Third Party Claim without the prior
written consent of the Borrower (which consent shall not be unreasonably
withheld).
(c) None of the Agent, any Lender, any Issuing Bank, the Borrower
or any of their respective directors, officers, employees, attorneys and
agents shall be responsible or liable to any other party hereto or any other
Person or entity for consequential damages which may be alleged as a result of
the transactions contemplated hereby, except to the extent specifically set
forth in this Agreement.
(d) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Agent, any Issuing Bank or any
Lender. All amounts due under this Section 9.05 shall be payable on written
demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
such other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section 9.06 are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of
the Agent, any Issuing Bank or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies
of the Agent, the Issuing Banks and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
which they would otherwise have. No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted
by paragraph (b) below, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice
or demand on the Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of, any scheduled principal payment date or date for the
payment of any interest on any Loan or LC Disbursement, or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any Loan
or LC Disbursement, without the prior written consent of each Lender affected
thereby, (ii) change or extend any Commitment or decrease the amount or extend
the time of payment of the Facility Fees or LC Fees of any Lender without the
prior written consent of such Lender, or (iii) amend or modify the provisions
of Section 2.24, the provisions of this Section 9.08 or the definitions of
"Required Lenders", "Required Term Lenders" or "Required Revolving Credit
Lenders", without the prior written consent of each Lender; provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Agent or the Issuing Banks hereunder without the prior written
consent of the Agent or the Issuing Banks, as the case may be; provided
further that no such agreement shall decrease the principal amount of, or
extend the maturity of, any mandatory principal payment in accordance with the
terms of Section 2.19, or waive or excuse any such payment or any part
thereof, without the prior written consent of the Required Term Lenders.
(c) No waiver by the Required Lenders of any Event of Default
shall impair (i) the right of the Required Revolving Credit Lenders to
terminate the Revolving Credit Commitments at any time on or after the
occurrence of such Event of Default pursuant to Section 7.02(b)(i), (ii) the
right of the Required Term Lenders to terminate the Term Loan Commitments at
any time prior to the Closing Date on or after the occurrence of such Event of
Default pursuant to Section 7.02(b)(ii), or (iii) the right of the Required
Revolving Credit Lenders to require cash collateral in connection with LC
Exposure at any time on or after the occurrence of such Event of Default
pursuant to Section 7.02(b)(iv).
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged,
received, taken or reserved by any Lender, shall exceed the maximum lawful
rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the
rate of interest payable on the Loans of such Lender, together with all
Charges payable to such Lender, shall be limited to the Maximum Rate.
SECTION 9.10. Confidentiality. (a) Each Lender agrees to keep
confidential, and to not publish, disclose or otherwise divulge to any Person,
the Information (as defined below), and to cause its respective officers,
directors, employees, agents and representatives to keep confidential, and to
not publish, disclose or otherwise divulge to any Person, the Information,
except that any Lender shall be permitted to disclose Information (i) to such
of its, or any affiliate's, officers, directors, employees, agents and
representatives as need to know such Information in connection with the
servicing and protection of its interests in respect of its Loans and
Commitments, the Loan Documents and the transactions contemplated thereby;
(ii) to the extent required by applicable laws and regulations or by any
subpoena or similar legal process, or requested by any bank regulatory
authority; (iii) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this Agreement, (B) becomes available to
such Lender on a non-confidential basis from a source other than the Borrower
or its Affiliates or (C) was available to such Lender on a non-confidential
basis prior to its disclosure to such Lender by the Borrower or its
Affiliates; (iv) to any actual or prospective assignee of or purchaser of a
participation in the rights of such Lender hereunder, subject to paragraph (c)
below; or (v) to the extent the Borrower shall have consented to such
disclosure in writing. As used in this Section, as to any Lender, the
"Information" shall mean any materials, documents and information which the
Borrower or any of its Affiliates may have furnished or may hereafter furnish
to the Agent, any Issuing Bank or any Lender in connection with this
Agreement.
(b) Each Lender agrees that it will use the Information only for
purposes related to the transactions contemplated hereby; provided that (i) if
the conditions referred to in any of subclauses (A) through (C) of clause
(iii) of paragraph (a) above are met, such Lender may otherwise use the
Information and (ii) if such Lender is otherwise a creditor of the Borrower,
such Lender may use the Information in connection with its other credits to
the Borrower.
(c) Each Lender agrees that it will not disclose any of the
Information to any actual or prospective assignee of or participant in any
rights of such Lender under this Agreement unless such actual or prospective
assignee or participant first executes and delivers to such Lender a
confidentiality letter containing substantially the undertakings set forth in
this Section 9.10.
SECTION 9.11. Entire Agreement. This Agreement, including the
exhibits and schedules hereto, and the other Loan Documents constitute the
entire contract between the parties relative to the subject matter hereof and
thereof. Any previous agreement among the parties with respect to the subject
matter hereof or thereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.12. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any litigation directly or indirectly
arising out of, under or in connection with this Agreement or any of the other
Loan Documents. Each party hereto (a) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it and the other parties hereto
have been induced to enter into this Agreement and the other Loan Documents,
as applicable, by, among other things, the mutual waivers and certifications
in this Section 9.12.
SECTION 9.13. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.14. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one contract, and shall
become effective as provided in Section 9.03.
SECTION 9.15. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 9.16. Jurisdiction; Consent to Service of Process. (a)
THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN
ANY SUCH COURT.
SECTION 9.17. Defaulting Lender. In the event that the Federal
Deposit Insurance Corporation (or any successor thereto) is appointed as
conservator or receiver of any Lender and thereafter such Lender fails to fund
its Term Loan or its portion of any Revolving Loan Borrowing requested or
deemed requested by the Borrower which such Lender is obligated to fund under
the terms of this Agreement (the funded portion of such Borrowing being
hereinafter referred to as a "Non Pro Rata Loan"), until the earlier of such
Lender's cure of such failure or the termination of the Commitments, upon the
Borrower's request, the proceeds of all amounts thereafter repaid to the Agent
by the Borrower and otherwise required to be applied to such Lender's share of
all other Obligations pursuant to the terms of this Agreement shall be
advanced to the Borrower by the Agent on behalf of such Lender to cure, in
full or in part, such failure by such Lender, but shall nevertheless be deemed
to have been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.17 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.15;
(ii) any such Lender shall be deemed to have cured its failure to
fund its Term Loan or its Revolver Pro Rata Share of any Revolving Loan
Borrowing at such time as an amount equal to such Lender's Term
Commitment or original Revolver Pro Rata Share of the requested
principal portion of such Borrowing is fully funded to the Borrower,
whether made by such Lender itself or by operation of the terms of this
Section 9.17, and whether or not the Non Pro Rata Loan with respect
thereto has been converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Term Loan or its Revolver
Pro Rata Share of any Revolving Loan Borrowing ("Cure Loans") shall bear
interest at the rate applicable to ABR Loans under Section 2.06 in
effect from time to time, and for all other purposes of this Agreement
shall be treated as if they were ABR Loans;
(iv) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of the
Borrower as to its desired application, all repayments of principal
which would be applied to the outstanding ABR Loans shall be applied
first, ratably to all ABR Loans constituting Non Pro Rata Loans, second,
ratably to ABR Loans other than those constituting Non Pro Rata Loans or
Cure Loans and, third, ratably to ABR Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Term Loan or its Revolver Pro Rata Share
of any Revolving Loan Borrowing and the termination of the Commitments,
the terms "Required Lenders", "Required Term Lenders" and "Required
Revolving Credit Lenders" for all purposes of this Agreement shall
exclude all Lenders whose failure to fund their respective Term Loans or
Revolver Pro Rata Shares of such Revolving Loan Borrowing have not been
so cured; and
(vi) for so long as and until any such Lender's failure to fund
its Term Loan or its Pro Rata Share of any Revolving Loan Borrowing is
cured in accordance with this Section 9.17, such Lender shall not be
entitled to any Facility Fees with respect to its Revolving Credit
Commitment.
SECTION 9.18. Issuing Banks. Notwithstanding any other provision
of this Agreement to the contrary, each Issuing Bank, by its execution of the
applicable Issuing Bank Agreement, will thereafter have all the rights and
obligations of an Issuing Bank hereunder.
IN WITNESS WHEREOF, the Borrower, the Agent, and the Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
INTERSTATE BRANDS CORPORATION
/s/ Paul E. Yarick
Paul E. Yarick, Vice President &
Treasurer
CHEMICAL BANK, individually and
as Agent
/s/ C.C. Wardell
C.C. Wardell, Managing Director
BANK OF AMERICA ILLINOIS
/s/ Patricia DelGrande
Patricia DelGrande, Managing
Director
THE BANK OF NEW YORK
/s/ Robert T. Towns
Robert T. Towns, Vice President
THE BANK OF NOVA SCOTIA
/s/ F.C.H. Ashby
F.C.H. Ashby, Senior Manager Loan
Operations
CREDIT LYONNAIS CHICAGO BRANCH
/s/ Sandra Horwitz
Sandra Horwitz, Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
/s/ Sandra Horwitz
Sandra Horwitz, Authorized
Signature
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
/s/ Hiroaki Nakamura
Hiroaki Nakamura, Joint General
Manager
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
/s/ Richard E. Stahl
Richard E. Stahl, Senior Vice President
& Joint General Manager
NATIONSBANK OF TEXAS, N.A.
/s/ Peny B. Stephensen
Peny B. Stephensen, Senior Vice
President
TORONTO DOMINION (TEXAS), INC.
/s/ Lisa Allison
Lisa Allison, Vice President
BANQUE PARIBAS
/s/ Albert A. Young, Jr.
Albert A. Young, Jr., Senior Credit
Officer
s/s Nicholas C. Mast
Nicholas C. Mast, Vice President
BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY
/s/ Ellen M. Isch
Ellen M. Isch, Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
/s/ David Bouhl
David Bouhl, Head of Corporate Banking
- Chicago
COMMERCE BANK, N.A.
/s/ Kevin Barth
Kevin Barth, Senior Vice President
FIRST BANK NATIONAL ASSOCIATION
/s/ Jeffrey R. Torrison
Jeffrey R. Torrison, Vice
President
THE FUJI BANK LIMITED -- CHICAGO BRANCH
/s/ Peter L. Chinnici
Peter L. Chinnici, Joint General
Manager
HARRIS TRUST AND SAVINGS BANK
/s/ Edward Boyd Jones
Edward Boyd Jones, Vice President
MERCANTILE BANK OF KANSAS CITY
/s/ Michael T. Cerless
Michael T. Cerless, Vice President
THE MITSUBISHI BANK, LIMITED, CHICAGO
BRANCH
/s/ Noboru Kobayashi
Noboru Kobayashi, Joint General
Manager
THE MITSUI TRUST AND BANKING COMPANY, LIMITED
/s/ Shigebu Tsujimoto
Shigebu Tsujimoto, Senior Vice
President & Manager
PNC BANK, NATIONAL ASSOCIATION
/s/ David M. Eichenlaub
David M. Eichenlaub, Assistant Vice
President
THE SAKURA BANK, LIMITED
/s/ Hajime Miyagi
Hajime Miyagi, Deputy General
Manager
THE SANWA BANK LIMITED, CHICAGO BRANCH
/s/ Kenneth C. Eichwald
Kenneth C. Eichwald, Vice President
& Manager
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH
/s/ Hiroyuki Iwami
Hiroyuki Iwami, Joint General
Manager
THE SUMITOMO TRUST & BANKING CO., LIMITED, NEW
YORK BRANCH
/s/ Suraj Bhatia
Suraj Bhatia, Senior Vice President
THE TOKAI BANK, LIMITED, CHICAGO BRANCH
/s/ Hiroshi Tanaka
Hiroshi Tanaka, General Manager
UNITED MISSOURI BANK, N.A.
/s/ Thomas S. Terry
Thomas S. Terry, Senior Vice
President
THE YASUDA TRUST & BANKING COMPANY, LTD.,
CHICAGO BRANCH
/s/ Joseph C. Meek
Joseph C. Meek, Vice President
& Manager
<PAGE>
SCHEDULE 2.01
to
CREDIT AGREEMENT
Dated as of May 31, 1995
COMMITMENTS
Revolving Term
Credit Loan
Institution Commitment Commitment
- -------------------------------- ----------- -----------
Chemical Bank $30,076,922 $15,923,078
Bank of America Illinois 22,884,615 12,115,385
231 South LaSalle St.
Chicago, Illinois 60697
Attention: Patricia DelGrande,
Vice President
Telecopier No.: (312) 765-2080
The Bank of New York 22,884,615 12,115,385
One Wall Street, 19th Floor
Central Division
New York, New York 10286
Attention: William O'Daly,
Assistant Treasurer
Telecopier No.: (212) 635-1208/1209
The Bank of Nova Scotia 22,884,615 12,115,385
181 West Madison, #3700
Chicago, Illinois 60602
Attention: Bob Gaviglio
Telecopier No.: (312) 201-4132
Credit Lyonnais, Chicago an 22,884,615 12,115,385
Cayman Island Branches
227 West Monroe,
Suite 3800
Chicago, Illinois 60606
Attention: David Nelson
Telecopier No.: (312) 641-0527
Industrial Bank of Japan,
Limited, Chicago Branch 22,884,615 12,115,385
Three First National Plaza,
Suite 1800
Chicago, Illinois 60602
Attention: Chuck Smith
Telecopier No.: (312) 263-2369
or (312) 263-1024
<PAGE>
The Long-Term Credit Bank
of Japan, Ltd. 22,884,615 12,115,385
190 S. LaSalle Street
Suite 800
Chicago, Illinois 60603
Attention: Gregory Hara,
Vice President
Telecopier No.: (312) 704-8505
Nationsbank of Texas, N.A. 22,884,615 12,115,385
901 Main Street, Floor 67
Dallas, Texas 75202
Attention: Ms. Perry Stephenson
Telecopier No.: (214) 508-0980
Toronto Dominion (Texas), Inc. 22,884,615 12,115,385
909 Fannin Street
Houston, Texas 77010
Attention: Lisa Allison
Telecopier No.: (713) 951-9921
Banque Paribas 11,769,231 6,230,769
227 West Monroe Street
Suite 3300
Chicago, Illinois 60606
Attention: Nicholas C. Mast,
Vice President
Telecopier No.: (312) 853-6020
Boatmen's First National Bank
of Kansas City 11,769,231 6,230,769
10th & Baltimore
Kansas City, Missouri 64105
Attention: Ellen Isch
Telecopier No.: (816) 691-7748
Caisse Nationale de Credit Agricole 11,769,231 6,230,769
55 East Monroe Street
Chicago, Illinois 60603-5702
Attention: Roger H. Weis
Telecopier No.: (312) 372-3724
Commerce Bank, N.A. 11,769,231 6,230,769
1000 Walnut Street
Kansas City, Missouri 64106
Attention: Kevin Barth
Telecopier No.: (816) 234-7290
First Bank National Association 11,769,231 6,230,769
First Bank, First Bank Place
601 Second Ave. South MPFP0704
Minneapolis, MN 55402-4302
Attention: Jeff Torrison
Telecopier No.: (612) 973-0824
<PAGE>
The Fuji Bank Limited --
Chicago Branch 11,769,231 6,230,769
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Attention: Peter M. Hoff,
Vice President
Telecopier No.: (312) 621-0539
Harris Trust and Savings Bank 11,769,231 6,230,769
111 West Monroe
Fourth Floor Center
Chicago, Illinois 60690
Attention: Ted Jones
Telecopier No.: (312) 765-8095
Mercantile Bank of Kansas City 11,769,231 6,230,769
1101 Walnut
Seventh Floor
Kansas City, Missouri 64106
Attention: Michael J. Corless
Telecopier No.: (816) 871-2226
The Mitsubishi Bank, Limited,
Chicago Branch 11,769,231 6,230,769
115 South LaSalle, Suite 2100
Chicago, Illinois 60603
Attention: James F. Kinoshita
Telecopier No.: (312) 263-2555
The Mitsui Trust and Banking
Company, Limited 11,769,231 6,230,769
One World Financial Center
21st Floor
200 Liberty Street
New York, New York 10281
Attention: Michael Kerneklian,
Senior Associate
Telecopier No.: (212) 945-4170/1
PNC Bank, National Association 11,769,231 6,230,769
500 West Madison, Suite 3140
Chicago, Illinois 60661
Attention: Greg Gaschler
Telecopier No.: (312) 906-3420
The Sakura Bank, Limited 11,769,231 6,230,769
227 W. Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Christina Watson
Telecopier No.: (312) 332-5345
<PAGE>
The Sanwa Bank Limited,
Chicago Branch 11,769,231 6,230,769
10 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Kenneth C. Eichwald
Telecopier No.: (312) 346-6677
The Sumitomo Bank, Limited,
Chicago Branch 11,769,231 6,230,769
233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
Attention: John E. Buchfink
Telecopier No.: (312) 876-6436
The Sumitomo Trust & Banking Co.,
Limited, New York Branch 11,769,231 6,230,769
527 Madison Avenue
New York, New York 10022
Attention: Kristin Condon,
STB New York Branch
Telecopier No.: (212) 418-4848
and
10 South Wacker Drive, Suite 2975
Chicago, Illinois 60606
Attention: Mark R. Long,
STB Chicago Representative Office
Telecopier No.: (312) 993-3414
The Tokai Bank Limited,
Chicago Branch 11,769,231 6,230,769
181 West Madison Street
Suite 3600
Chicago, Illinois 60602
Attention: Tom Kania
Telecopier No.: (312) 977-0003
United Missouri Bank, N.A. 11,769,231 6,230,769
1010 Grand
Kansas City, MO 64106
Attention: Thomas S. Terry
Telecopier No.: (816) 860-7143
The Yasuda Trust & Banking Co., Ltd.,
Chicago Branch 11,769,231 6,230,769
181 West Madison Street
Suite 4500
Chicago, Illinois 60602
Attention: Charles Hagel
Telecopier No.: (312) 683-3899
------------ ------------
Totals $425,000,000 $225,000,000
============ ============
