UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED APRIL 3, 1999
Commission File No.: 0-22192
PERFORMANCE FOOD GROUP COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Tennessee 54-0402940
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
(Address of Principal Executive (ZipCode)
Offices)
Registrant's Telephone Number,
Including Area Code (804)285-7340
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X Yes ____ No
As of May 17, 1999, 13,513,340 shares of the Registrant's
Common Stock were outstanding.
Independent Accountants' Review Report
The Board of Directors and Shareholders
Performance Food Group Company:
We have reviewed the accompanying condensed consolidated balance sheet of
Performance Food Group Company and subsidiaries (the Company) as of April 3,
1999, and the related condensed consolidated statements of earnings and cash
flows for the three-month periods ended April 3, 1999 and March 28, 1998. These
condensed consolidated financial statements are the responsibility of the
Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, the objective of which is
the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the condensed consolidated financial statements referred to above for
them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Performance Food Group Company
and subsidiaries as of January 2, 1999, and the related consolidated statements
of earnings, shareholders' equity and cash flows for the year then ended (not
presented herein); and in our report dated February 7, 1999, we expressed an
unqualified opinion on those consolidated financial statements. In our opinion,
the information set forth in the accompanying condensed consolidated balance
sheet as of January 2, 1999 is fairly stated, in all material respects, in
relation to the consolidated balance sheet from which it has been derived.
/s/KPMG LLP
Richmond, Virginia
May 2, 1999
PART I - FINANCIAL INFORMATION
Item 1 Financial Statements.
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(In thousands)
<TABLE>
<CAPTION>
<S> <C> <C>
April 3, January 2,
1999 1999
(Unaudited)
Assets
Current assets:
Cash $ 7,510 $ 7,796
Trade accounts and notes receivable, net 113,871 110,372
Inventories 89,912 90,388
Other current assets 6,958 5,723
Total current assets 218,251 214,279
Property, plant and equipment, net 94,685 93,402
Intangible assets, net 82,171 78,023
Other assets 2,005 2,008
Total assets 397,112 387,712
Liabilities and Shareholders' Equity
Current liabilities:
Outstanding checks in excess of deposits 30,916 33,589
Current installments of long-term debt 687 797
Accounts payable 94,450 93,182
Other current liabilities 27,456 23,431
Total current liabilities 153,509 150,999
Long-term debt, excluding current installments 80,572 74,305
Deferred income taxes 5,323 5,323
Total liabilities 239,404 230,627
Shareholders' equity 157,708 157,085
Total liabilities and
shareholders' equity $ 397,112 $ 387,712
See accompanying notes to unaudited condensed consolidated financial statements.
</TABLE>
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Statements of Earnings (Unaudited)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended
April 3, March 28,
1999 1998
<S> <C> <C>
Net sales $ 466,378 $ 375,170
Cost of goods sold 403,385 326,805
Gross profit 62,993 48,365
Operating expenses 56,713 43,387
Operating profit 6,280 4,978
Other income (expense):
Interest expense (1,286) (1,003)
Nonrecurring merger expenses (3,812) -
Other, net (6) 17
Other expense, net (5,104) (986)
Earnings before income taxes 1,176 3,992
Income tax expense 525 1,605
Net earnings $ 651 $ 2,387
Basic net earnings per common share $ 0.05 $ 0.18
Weighted average common shares outstanding 13,479 13,345
Diluted net earnings per common share $ 0.05 $ 0.17
Weighted average common shares and potential
dilutive common shares outstanding 14,187 13,874
See accompanying notes to unaudited condensed consolidated financial statements.
</TABLE>
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months Ended
April 3, March 28,
1999 1998
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 651 $ 2,387
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization 3,253 2,515
ESOP contributions applied to principal of
ESOP debt 132 122
(Gain) loss on disposal of property, plant an 10 (80)
Changes in assets and liabilities 1,035 10,738
Net cash provided by operating activitie 5,081 15,682
Cash flows from investing activities:
Purchases of property, plant and equipment (3,928) (3,824)
Proceeds from sale of property, plant and equipment 52 455
(Increase) decrease in intangibles and other assets (4,815) 180
Net cash used by investing activities (8,691) (3,189)
Cash flows from financing activities:
Decrease in outstanding checks in excess of deposit (2,673) (1,711)
Net borrowings (payments) on note payable to banks 14,443 (2,067)
Repayment of promissory notes - (7,278)
Issuance of long-term debt 321 -
Principal payments on long-term debt (8,607) (169)
Distributions of pooled company (1,025) (86)
Effect of conforming fiscal year of pooled company - 85
Employee stock option, incentive and employee stock
purchase and related income tax benefit 865 535
Net cash provided (used) by financing
activities 3,324 (10,691)
Net increase (decrease) in cash (286) 1,802
Cash at beginning of period 7,796 3,880
Cash at end of period $ 7,510 $ 5,682
See accompanying notes to unaudited condensed consolidated financial statements.
</TABLE>
PERFORMANCE FOOD GROUP COMPANY AND SUBSIDIARIES
Notes to Unaudited Condensed Consolidated Financial Statements
April 3, 1999 and March 28, 1998
1. Basis of Presentation
The accompanying condensed consolidated financial statements
of Performance Food Group Company and subsidiaries (the
"Company") are unaudited, with the exception of the January 2,
1999 condensed consolidated balance sheet, which was derived from
the audited consolidated balance sheet in the Company's latest
annual report on Form 10-K. The unaudited condensed consolidated
financial statements have been prepared in accordance with
generally accepted accounting principles for interim financial
reporting, and in accordance with Rule 10-01 of Regulation S-X.
In the opinion of management, the unaudited condensed
consolidated financial statements contained in this report
reflect all adjustments, consisting of only normal recurring
accruals, which are necessary for a fair presentation of the
financial position and the results of operations for the interim
periods presented. The results of operations for any interim
period are not necessarily indicative of results for the full
year.
These unaudited condensed consolidated financial statements,
note disclosures and other information should be read in
conjunction with the consolidated financial statements and notes
thereto included in the Company's latest annual report on Form 10-K.
2. Business Combinations
On February 28, 1999, the Company completed a merger with
NorthCenter Foodservice Corporation ("NCF"), in which NCF became
a wholly-owned subsidiary of the Company. NCF was a privately-
owned foodservice distributor based in Augusta, Maine and had
1998 net sales of approximately $98 million. The merger was
accounted for as a pooling-of-interests and resulted in the
issuance of approximately 850,000 shares of the Company's common
stock in exchange for all of the outstanding stock of NCF.
Accordingly, the consolidated financial statements for periods
prior to the combination have been restated to include the
accounts and results of operations of NCF.
The results of operations, including $3.8 million of non-recurring
merger expenses, previously reported by the Company and the combined
amounts presented in the accompanying consolidated financial statements
are summarized below.
<TABLE>
<CAPTION>
(amounts in thousands)
Three Months Ended
April 3, March 28,
1999 1998
<S> <C> <C>
Net sales:
The Company $ 444,883 $ 353,482
NCF 21,495 21,688
Combined $ 466,378 $ 375,170
Net earnings (loss):
The Company $ 3,228 $ 2,565
NCF (2,577) (178)
Combined $ 651 $ 2,387
</TABLE>
Adjustments to conform NCF's accounting methods and practices to
those of the Company's consist primarily of depreciation and were not
material.
NCF, prior to the merger with the Company, was treated as an
S-corporation for Federal income tax purposes. The following pro
forma disclosures present the combined results of operations,
excluding non-recurring merger expenses of $3.8 million, as if NCF was
taxed as a C-corporation for the periods presented:
<TABLE>
<CAPTION> Three Months Ended
(amounts in thousands) April 3, March 28,
1999 1998
<S> <C> <C>
Net sales $ 466,378 $ 375,170
Cost of goods sold 403,385 326,805
Gross profit 62,993 48,365
Operating expense 56,713 43,387
Operating profit 6,280 4,978
Other income (expense)
Interest expense (1,286) (1,003)
Other, (net) (6) 17
Other expense (net) (1,292) (986)
Earnings before income taxes 4,988 3,992
Income tax expense 1,920 1,536
Net earnings $ 3,068 $ 2,456
Weighted average common shares
outstanding 13,479 13,345
Basic net earnings per
common share $ 0.23 $ 0.18
Weighted average common shares
and potential dilutive common
shares outstanding 14,187 13,874
Diluted net earnings per
common share $ 0.22 $ 0.18
</TABLE>
On June 1, 1998, the Company acquired certain net assets
related to the group and chemicals business of Affiliated Paper
Companies, Inc. ("APC"), a privately owned marketing organization
based in Tuscaloosa, Alabama. APC provides procurement and
merchandising services for a variety of paper, disposable and
sanitation supplies to more than 300 independent distributors.
On July 27, 1998, the Company acquired certain net assets of the
Virginia Foodservice Group ("VFG") based in Richmond, Virginia, a
division of a privately owned foodservice distributor in which a
member of the Company's management has a minor ownership
interest. VFG is a foodservice distributor primarily servicing
traditional foodservice customers in the Central Virginia market.
Collectively, these companies had 1997 net sales of approximately
$69 million. The aggregate purchase price of approximately $28.3
million, which includes an additional $4.4 million paid in the
first quarter of 1999 to the former shareholders of VFG as a result
of meeting certain performance criteria under the purchase
agreement, was financed with proceeds from an existing credit
facility. The aggregate consideration payable to the former
shareholders of APC and VFG is subject to increase in certain
circumstances.
These acquisitions have been accounted for using the
purchase method and, accordingly, the acquired assets and
liabilities have been recorded at their estimated fair values at
the date of acquisition. The excess of the purchase price over
the fair value of tangible net assets acquired was approximately
$28.3 million and is being amortized on a straight-line basis
over estimated lives ranging from 5 to 40 years.
The consolidated statements of earnings and cash flows
reflect the results of these acquired companies from the date of
the acquisition through April 3, 1999. The unaudited
consolidated results of operations for the 1st quarter of 1998
on a pro forma basis as though these acquisitions had been
consummated as of the beginning of 1998 are as follows:
Three Months Ended
March 28, 1998
Net Sales $ 392,030
Gross Profit 52,897
Net Earnings 2,506
Basic Net Earnings per Common Share 0.19
Diluted Net Earnings per Common Share $ 0.18
3. Supplemental Cash Flow Information
Three Months Ended
(amounts in thousands) April 3, March 28,
1999 1998
Cash paid during the period for:
Interest $ 445 $ 993
Income taxes $ 123 $ 693
4. Industry Segment Information
During the fourth quarter of 1998, the Company adopted SFAS
No. 131, Disclosure about Segments of an Enterprise and Related
Information. The adoption of SFAS No. 131 requires the
presentation of descriptive information about reportable segments
which is consistent with that made available to the management of
the Company to assess performance of various operating units.
Under SFAS No. 131, the Company has two reportable segments:
broadline foodservice distribution ("Broadline") and customized
foodservice distribution ("Customized"). Broadline distributes
approximately 25,000 food and food-related products to a
combination of approximately 21,000 traditional and multi-unit
chain customers. Broadline consists of eleven operating
locations that independently design their own product mix,
distribution routes and delivery schedules to accommodate the
varying needs of these customers. Customized focuses on serving
certain of the Company's multi-unit chain customers whose sales
volume, growth, product mix, service requirements and geographic
locations are such that these customers can be more efficiently
served through centralized information systems, dedicated
distribution routes and relatively large and consistent orders
per delivery. Customized currently distributes products in
approximately 40 states through four distribution facilities.
Other consists primarily of the Company's fresh-cut produce
operations.
<TABLE>
<CAPTION>
Corporate
&
Broadline Customized Other Intersegment Consolidated
First Quarter 1999
<S> <C> <C> <C> <C> <C>
Net external sales $ 269,679 $ 180,976 $ 15,723 $ - $ 466,378
Intersegment sales 760 - 3,000 (3,760) -
Operating profit 5,137 1,997 835 (1,689) 6,280
Total assets 288,111 83,237 14,251 11,513 397,112
Interest expense
(income) 1,572 551 (27) (810) 1,286
Depreciation and
amortization 2,370 400 359 124 3,253
Capital expenditures 2,950 336 329 313 3,928
First Quarter 1998
Net external sales $ 211,903 $ 150,052 $ 13,215 $ - $ 375,170
Intersegment sales 654 - 3,222 (3,876) -
Operating profit 4,185 1,618 539 (1,364) 4,978
Total assets 228,746 61,517 14,777 6,992 312,032
Interest expense
(income) 1,723 297 (97) (920) 1,003
Depreciation and
amortization 1,867 350 270 28 2,515
Capital expenditures 1,359 1,967 482 16 3,824
</TABLE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
General
The Company derives its revenue primarily from the sale of
food and food-related products to the foodservice, or "away-from-
home eating," industry. The foodservice industry consists of two
major customer types: "traditional" foodservice customers,
consisting of independent restaurants, hotels, cafeterias,
schools, healthcare facilities and other institutional customers,
and "multi-unit chain" customers, consisting of regional and
national quick-service restaurants and casual dining restaurants.
Products and services provided to the Company's traditional and
multi-unit chain customers are supported by identical physical
facilities, vehicles, equipment, systems and personnel. The
principal components of the Company's expenses include cost of
goods sold, which represents the amount paid to manufacturers and
growers for products sold, and operating expenses, which include
primarily labor-related expenses, delivery costs and occupancy
expenses.
Results of Operations
The following table sets forth, for the periods indicated, the
components of the condensed consolidated statements of earnings
expressed as a percentage of net sales:
Three Months Ended
April 3, March 28,
1999 1998
Net sales 100.0 % 100.0 %
Cost of goods sold 86.5 87.1
Gross profit 13.5 12.9
Operating expenses 12.2 11.6
Operating profit 1.3 1.3
Other expense, net 1.1 0.3
Earnings before
income taxes 0.2 1.0
Income tax expense 0.1 0.4
Net earnings 0.1 % 0.6 %
Comparison of Periods Ended April 3, 1999 to March 28, 1998.
Net sales increased 24.3% to $466.4 million for the three
months ended April 3, 1999 (the "1999 quarter") from $375.2
million for the three months ended March 28, 1998 (the "1998
quarter"). Net sales in the Company's existing operations
increased 19% over the 1998 quarter while acquisitions
contributed the remaining 5% of the Company's total sales growth.
Inflation amounted to approximately 1% for the 1999 quarter.
Gross profit increased 30.3% to $63.0 million in the 1999
quarter from $48.4 million in the 1998 quarter. Gross profit
margin increased to 13.5% in the 1999 quarter compared to 12.9%
in the 1998 quarter. The increase in gross profit margin
was due primarily to the following factors. During the second
half of 1998 and in the first quarter of 1999, the Company
acquired two broadline distribution and merchandising companies
that have higher gross margins than the Company's customized
distribution operations. Sales also grew internally in the
Company's produce processing operations by approximately 19%
during the 1999 quarter which operations currently have higher
margins than the Company's foodservice distribution operations.
Operating expenses increased 30.7% to $56.7 million in the
1999 quarter compared with $43.4 million in the 1998 quarter. As
a percentage of net sales, operating expenses increased to 12.2%
in the 1999 quarter from 11.6% in the 1998 quarter. The increase
in operating expenses as a percent of net sales is due primarily
to the following factors. The Company incurred certain start up
costs of two new distribution centers, which are replacing older,
less efficient facilities that became operational early 1999.
Operating expenses as a percentage of net sales were also
impacted by the acquisition of APC which has a higher expense
ratio than many of the Company's other subsidiaries.
Operating profit increased 26.2% to $6.3 million in the 1999
quarter from $5.0 million in the 1998 quarter. Operating profit
margin remained the same at 1.3% for both the 1999 and 1998
quarters.
Other expense increased to $5.1 million in 1999 from $1.0
million in 1998. Interest expense for the 1999 quarter amounted
to $1.3 million compared with $1.0 for the 1998 quarter. In
addition, the Company had non-recurring merger expenses related
to the merger with NCF of $3.8 million.
Income tax expense decreased to $525,000 in the 1999 quarter
from $1.6 million in the 1998 quarter primarily as a result of
lower pre-tax income compared to the year earlier period. As a
percentage of earnings before income taxes, the provision for
income taxes was 44.7% and 40.2% for the 1999 and 1998 quarters,
respectively. The fluctuation in the effective tax rate is due
primarily to the merger with NCF which was taxed as an S-
Corporation for income tax purposes prior to the merger with the
Company.
Net earnings decreased 72.8% to $651,000 in the 1999 quarter
compared to $2.4 million in the 1998 quarter. As a percentage of
net sales, net earnings decreased to 0.1% in the 1999 quarter
versus 0.6% in the 1998 quarter.
Liquidity and Capital Resources
The Company has historically financed its operations and
growth primarily with cash flow from operations, borrowings under
its credit facility, operating leases, normal trade credit terms
and the sale of the Company's common stock. Despite the
Company's large sales volume, working capital needs are minimized
because the Company's investment in inventory is financed
principally with accounts payable.
Cash provided by operating activities was $5.1 million and
$15.7 million for the 1999 and 1998 quarters, respectively. The
decrease in cash provided by operating activities resulted
primarily from lower net earnings and increased levels of trade
receivables.
Cash used by investing activities was $8.7 million and $3.2
million for the 1999 and 1998 quarters, respectively. Investing
activities consist primarily of additions to and disposals of
property, plant and equipment and the acquisition of businesses.
The Company's total capital expenditures for the 1999 quarter
were $3.9 million. The Company anticipates that its total
capital expenditures, other than for acquisitions, for fiscal
1999 will be approximately $29 million. In addition the 1999
quarter included $4.4 million paid to the former shareholders of
VFG related to the acheivment of certain performance criteria under
the purchase agreement.
Cash flows provided by financing activities was $3.3 million
in the 1999 quarter and used by financing activities was $10.7
million for the 1998 quarter. Cash flows in the 1999 period
included net borrowings on the revolving credit facility ("Credit
Facility") of $14.4 million. The 1999 quarter also included
repayments of long term debt in the amount of $8.6 million and
distributions to shareholders of NCF in the amount of $1.0
million. Cash flows in the 1998 period included net repayments
on the Credit Facility of $2.1 million net of repayment of $7.3
million of promissory notes used to finance the acquisition of
AFI Foodservice Distributors, Inc.
On March 5, 1999, the Company entered into an $85.0 million
Credit Facility with a group of commercial banks which replaced
the Company's existing facility. Approximately
$27.0 million was outstanding under the Credit Facility at
April 3, 1999 net of overnight investments. The Credit Facility
also supports up to $10.0 million of letters of credit. At
April 3, 1999, the Company was contingently liable for $6.0 million
of outstanding letters of credit which reduce amounts available
under the Credit Facility. At April 3, 1999, the Company had $52.0
million available under the Credit Facility. The Credit Facility
bears interest at LIBOR plus a spread over LIBOR, which varies based
on the ratio of funded debt to total capital. At April 3, 1999,
the Credit Facility bore interest at 5.42%. Additionally,
the Credit Facility requires the maintenance of certain financial ratios.
On March 19, 1999, $9.0 million of Industrial Revenue
Bonds were issued on behalf of a subsidiary of the Company to
finance the construction of a produce processing facility.
Approximately $300,000 of the proceeds of these bonds have been
used as of April 3, 1999. Interest varies as determined by the
remarketing agent for the bonds and was approximately 3.89% at
April 3, 1999. The bonds are secured by a letter of credit issued
by a commercial bank.
On September 12, 1997, the Company completed a $42.0 million
master operating lease agreement to construct or purchase four
distribution centers planned to become operational in 1998 and
1999. Under this agreement, the lessor owns the distribution
centers, incurs the related debt to construct the facilities and
thereafter leases each facility to the Company. The Company has
entered into a commitment to lease each facility for a period
beginning upon the completion of each facility and ending on
September 12, 2002, including extensions. Upon the expiration of
each lease, the Company has the option to renegotiate the lease,
sell the facility to a third party or to purchase the facility at
its original cost. If the Company does not exercise its purchase
options, the Company has significant residual value guarantees of
each property. The Company expects the fair value of the
properties included in this agreement to eliminate or
substantially reduce the Company's exposure under the residual
value guarantees. At April 3, 1999, construction expenditures to
date were approximately $23.9 million.
The Company believes that cash flow from operations and
borrowings under the Company's credit facilities will be
sufficient to finance its operations and anticipated growth for
the foreseeable future.
Business Combinations
On February 28, 1999, the Company completed a merger with
NorthCenter Foodservice Corporation ("NCF"), in which NCF became
a wholly-owned subsidiary of the Company. NCF was a privately-
owned foodservice distributor based in Augusta, Maine and had
1998 net sales of approximately $98 million. The merger was
accounted for as a pooling-of-interests and resulted in the
issuance of approximately 850,000 shares of the Company's common
stock in exchange for all of the outstanding stock of NCF.
Accordingly, the consolidated financial statements for periods
prior to the combination have been restated to include the
accounts and results of operations of NCF.
On June 1, 1998, the Company acquired certain net assets
related to the group and chemicals business of Affiliated Paper
Companies, Inc. ("APC"), a privately owned marketing organization
based in Tuscaloosa, Alabama. APC provides procurement and
merchandising services for a variety of paper, disposable and
sanitation supplies to more than 300 independent distributors.
On July 27, 1998, the Company acquired certain net assets of the
Virginia Foodservice Group ("VFG") based in Richmond, Virginia, a
division of a privately owned foodservice distributor in which a
member of the Company's management has a minor ownership
interest. VFG is a foodservice distributor primarily servicing
traditional foodservice customers in the Central Virginia market.
Collectively, these companies had 1997 net sales of approximately
$69 million. The aggregate purchase price of approximately $28.3,
million, which includes an additional $4.4 million paid in the
first quarter of 1999 to the former shareholders of VFG as a result
of meeting certain performance criteria under the purchase agreement,
was financed with proceeds from an existing credit
facility. The aggregate consideration payable to the former
shareholders of APC and VFG is subject to increase in certain
circumstances.
The acquisition of APC and VFG have been accounted for using
the purchase method and, accordingly, the acquired assets and
liabilities have been recorded at their estimated fair values at
the date of acquisition. The excess of the purchase price over
the fair value of tangible net assets acquired was approximately
$28.3 million and is being amortized on a straight-line basis
over estimated lives ranging from 5 to 40 years.
Year 2000 Issue
State of Readiness
In mid 1997, the Company initiated a project to address any
potential business disruptions related to data processing
problems as a result of the year 2000 issue. Initially, the
project focused primarily on the Company's information technology
("IT") systems. However, the project was subsequently expanded to
include non-IT systems including transportation and warehouse
refrigeration systems, telecommunications, utilities, etc. The
project consists of a number of phases: awareness, assessment,
programming/testing and implementation. With respect to IT
systems, the Company has completed the first three phases and is
approximately 66% complete with the implementation phase. The
Company expects to complete the implementation phase for IT
systems during the third quarter of 1999. With respect to non-IT
systems, the Company is in the assessment phase to identify all
critical systems requiring remediation and is developing a
timetable for remediation based upon that assessment. As part of
the year 2000 project, the Company has initiated communications
with its significant merchandise suppliers and major customers to
assess their state of readiness for the year 2000. A significant
percentage of suppliers and customers have provided the Company
with written responses regarding their state of year 2000
readiness. The Company is continuing to evaluate key business
processes to identify any additional non-IT systems requiring
remediation and to work with key suppliers and customers in
preparing for the year 2000. Despite this continuing effort, the
Company can provide no assurance that the IT and non-IT systems
of third party business partners with whom the Company relies
upon will be year 2000 compliant.
Costs
In addition to the year 2000 project, the Company has
underway a project to standardize the computer systems at nine of
its broadline distribution subsidiaries, which operate in a
distributed computing environment. The decision to standardize
the computer system used in these subsidiaries was based on the
Company's continued growth and need to capture information to
improve operating efficiencies and capitalize on the Company's
combined purchasing power. The plan to standardize these systems
was not accelerated by the year 2000 issue. Additionally, one of
the Company's distribution subsidiaries, which operates four
distribution facilities, processes information in a centralized
computing environment. Therefore, the Company's year 2000
remediation efforts have been minimized by focusing its year 2000
programming on two primary operating systems. The Company
anticipates incurring approximately $600,000 related to
remediating its IT systems for year 2000 compliance, of which the
Company has incurred approximately $400,000 to date. The Company
has not completed quantifying the remediation costs regarding non-
IT systems. Year 2000 remediation costs are being expensed as
incurred over the life of the project and are not expected to
have a material effect on the Company's results of operations.
Risks and Contingency Plans
The Company is currently assessing the consequences of its
IT and non-IT remediation efforts not being completed timely or
its efforts not being successful. As part of this assessment
process, the Company is developing contingency plans including
plans to address interruption of merchandise and services
supplied to customers and supplied by third party business
partners. The Company believes the most reasonably likely worst
case scenario related to the readiness of IT systems is that the
implementation of the year 2000 compliant system in all nine
subsidiaries may not be completed timely. The Company's
contingency plans in this case include backup plans to process
transactions for non-compliant subsidiaries through one of the
Company's year 2000 compliant systems. The Company is still
formulating these contingency plans. With respect to risks
associated with third party merchandise suppliers, the Company
believes the most reasonably likely worst case scenario is that
some of the Company's merchandise suppliers may have difficulty
filling orders and shipping products. The Company believes the
risk associated with merchandise suppliers' year 2000 readiness
is mitigated by the significant number of Company relationships
with alternative suppliers within various product categories,
which could be substituted in the event of non-compliance. The
Company also believes the number of non-compliant merchandise
suppliers will be minimized through its program of communicating
with key suppliers and assessing their state of year 2000
readiness. The Company has not yet completed its identification
and assessment of all non-IT systems requiring remediation,
including various service providers. As the Company's year 2000
project continues, the Company will continue to develop
contingency plans and identify alternative business processes and
sources of supply for goods and services.
The Company's project and related assessment of costs and
risks are based on current estimates and assumptions, including
the outcome of future events regarding the continued availability
of certain resources, the timing and effectiveness of third party
remediation efforts and other factors. There can be no assurance
that the Company's contingency plans or its efforts with respect
to third party business partners will be successful, which could
have a material adverse effect on the Company's financial
position or results of operations.
Forward-Looking Statements
The Company has made certain forward-looking statements in this
quarterly report and in other contexts that are based on estimates and
assumptions and involve risks and uncertainties, including, but not limited
to, general economic conditions, the reliance on major customers, the
Company's anticipated growth, year 2000 compliance and other financial issues.
Whether such forward-looking statements, which depend on these uncertainties
and future developments, ultimately prove to be accurate cannot be predicted.
Item 3. Quantitative and Qualitative Disclosures About Market Risks.
The Company does not currently use financial instruments for
trading purposes nor hold derivative financial instruments that could expose
the Company to significant market risk. The Company has no material foreign
currency exposure. The Company's primary exposure to market risk is from
changing interest rates related to the Company's long-term debt. The Company
currently manages this risk through a combination of fixed and floating rates
on these obligations. As of April 3, 1999, the Company's total debt consisted
of fixed and floating rate debt of $50.0 million and $31.3 million,
respectively. Substantially all of the Company's floating rate debt is based
on LIBOR.
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders.
No matters were submitted to a vote of security holders
during the quarter ended April 3, 1999.
Item 6. Exhibits and Reports on Form 8-K.
(a.) Exhibits:
10.28 Revolving Credit agreement dated as of
March 5, 1999
10.29 Letter of Credit and Reimbursement Agreement by and
among KMB Produce, Inc. and First Union National Bank
dated as of March 1, 1999.
10.30 Guaranty Agreement by and among Performance Food Group
Company and First Union National Bank dated
as of March 1, 1999.
15 Letter regarding unaudited financial
information from KPMG LLP.
27.1 Financial Data Schedule (SEC only)
27.2 Restated Financial Data Schedule (SEC only)
(b.) No reports on Form 8-K were filed during the
quarter ended April 3, 1999.
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 thereunto duly authorized.
PERFORMANCE FOOD GROUP COMPANY
(Registrant)
By: /s/ Roger L. Boeve
Roger L. Boeve
Executive Vice President &
Chief Financial Officer
Date: May 17, 1999.
CREDIT AGREEMENT
dated as of March 5, 1999,
by and among
PERFORMANCE FOOD GROUP COMPANY,
as Borrower,
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I DEFINITIONS 1
SECTION 1.1 Definitions 1
SECTION 1.2 General 13
SECTION 1.3 Other Definitions and Provisions 13
ARTICLE II REVOLVING CREDIT FACILITY 14
SECTION 2.1 Revolving Credit Loans and Competitive Bid Loans 14
SECTION 2.2 Procedure for Advances of Revolving Credit Loans 14
SECTION 2.3 Procedure for Advance of Competitive Bid Loans. 15
SECTION 2.4 Repayment of Loans 18
SECTION 2.5 Notes 18
SECTION 2.6 Voluntary Reduction of the Aggregate Commitment 19
SECTION 2.7 Termination of Facility 19
SECTION 2.8 Increases in Facility 19
SECTION 2.9 Use of Proceeds 20
ARTICLE III LETTER OF CREDIT FACILITY 20
SECTION 3.1 L/C Commitment 20
SECTION 3.2 Procedure for Issuance of Letters of Credit 21
SECTION 3.3 Commissions and Other Charges 21
SECTION 3.4 L/C Participations 22
SECTION 3.5 Reimbursement Obligation of the Borrower 23
SECTION 3.6 Obligations Absolute 23
SECTION 3.7 Effect of Application 23
SECTION 3.8 Letters of Credit Issued Pursuant to the Existing
Facility 24
ARTICLE IV GENERAL LOAN PROVISIONS 24
SECTION 4.1 Interest 24
SECTION 4.2 Notice and Manner of Conversion or Continuation
of Loans 27
SECTION 4.3 Fees 27
SECTION 4.4 Manner of Payment 27
SECTION 4.5 Crediting of Payments and Proceeds 28
SECTION 4.6 Adjustments 28
SECTION 4.7 Nature of Obligations of Lenders Regarding
Extensions of Credit; Assumption by the
Administrative Agent 29
SECTION 4.8 Changed Circumstances 29
SECTION 4.9 Indemnity 31
SECTION 4.10Capital Requirements 31
SECTION 4.11Taxes 32
SECTION 4.12Mitigation of Obligations; Replacement of Lenders 34
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING 35
SECTION 5.1 Closing 35
SECTION 5.2 Conditions to Closing and Initial Extensions of
Credit 35
SECTION 5.3 Conditions to All Extensions of Credit 37
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER 38
SECTION 6.1 Representations and Warranties 38
SECTION 6.2 Survival of Representations and Warranties, Etc 44
ARTICLE VII FINANCIAL INFORMATION AND NOTICES 45
SECTION 7.1 Financial Statements and Projections 45
SECTION 7.2 Officer's Compliance Certificate 46
SECTION 7.3 Accountants' Certificate 46
SECTION 7.4 Other Reports 46
SECTION 7.5 Notice of Litigation and Other Matters 46
SECTION 7.6 Accuracy of Information 47
ARTICLE VIII AFFIRMATIVE COVENANTS 47
SECTION 8.1 Preservation of Corporate Existence and Related
Matters 47
SECTION 8.2 Maintenance of Property 47
SECTION 8.3 Insurance 48
SECTION 8.4 Accounting Methods and Financial Records 48
SECTION 8.5 Payment and Performance of Obligations 48
SECTION 8.6 Compliance With Laws and Approvals 48
SECTION 8.7 Environmental Laws 48
SECTION 8.8 Compliance with ERISA 49
SECTION 8.9 Compliance With Agreements 49
SECTION 8.10Conduct of Business 49
SECTION 8.11Visits and Inspections 49
SECTION 8.12Year 2000 Compatibility 49
SECTION 8.13Further Assurances 49
ARTICLE IX FINANCIAL COVENANTS 50
SECTION 9.1 Leverage Ratio 50
SECTION 9.2 Interest and Rental Expense Coverage Ratio 50
SECTION 9.3 Minimum Net Worth 50
ARTICLE X NEGATIVE COVENANTS 50
SECTION 10.1Limitations on Total Debt 50
SECTION 10.2Limitations on Guaranty Obligations 51
SECTION 10.3Limitations on Liens 51
SECTION 10.4Limitations on Loans, Advances, Investments and
Acquisitions 52
SECTION 10.5Limitations on Mergers and Liquidation 53
SECTION 10.6Limitations on Sale of Assets 54
SECTION 10.7Limitations on Dividends and Distributions 54
SECTION 10.8Limitations on Exchange and Issuance of Capital
Stock 54
SECTION 10.9Transactions with Affiliates. 54
SECTION 10.10 Certain Accounting Changes 55
SECTION 10.11 Amendments; Payments and Prepayments of Debt 55
SECTION 10.12 Restrictive Agreements 55
ARTICLE XI DEFAULT AND REMEDIES 55
SECTION 11.1Events of Default 55
SECTION 11.2Remedies 57
SECTION 11.3Rights and Remedies Cumulative; Non-Waiver; etc 58
ARTICLE XII THE ADMINISTRATIVE AGENT 58
SECTION 12.1Appointment 58
SECTION 12.2Delegation of Duties 59
SECTION 12.3Exculpatory Provisions 59
SECTION 12.4Reliance by the Administrative Agent 59
SECTION 12.5Notice of Default 60
SECTION 12.6Non-Reliance on the Administrative Agent and Other
Lenders 60
SECTION 12.7Indemnification 61
SECTION 12.8The Administrative Agent in Its Individual
Capacity 61
SECTION 12.9Resignation of the Administrative Agent; Successor
Administrative Agent 61
ARTICLE XIII MISCELLANEOUS 62
SECTION 13.1Notices 62
SECTION 13.2Expenses; Indemnity 63
SECTION 13.3Set-off 63
SECTION 13.4Governing Law 64
SECTION 13.5Consent to Jurisdiction 64
SECTION 13.6Binding Arbitration; Waiver of Jury Trial 64
SECTION 13.7Reversal of Payments 65
SECTION 13.8Injunctive Relief; Punitive Damages 65
SECTION 13.9Accounting Matters 66
SECTION 13.10 Successors and Assigns; Participations 66
SECTION 13.11 Amendments, Waivers and Consents 69
SECTION 13.12 Performance of Duties 69
SECTION 13.13 All Powers Coupled with Interest 69
SECTION 13.14 Survival of Indemnities 70
SECTION 13.15 Titles and Captions 70
SECTION 13.16 Severability of Provisions 70
SECTION 13.1 Counterparts 70
SECTION 13.18 Term of Agreement 70
SECTION 13.19Inconsistencies with Other Documents;
Independent Effect of Covenants 70
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B - Form of Notice of Revolving Credit
Borrowing
Exhibit C-1 - Form of Competitive Bid Request
Exhibit C-2 - Form of Invitation to Bid
Exhibit C-3 - Form of Competitive Bid
Exhibit C-4 - Form of Competitive Bid Accept/Reject
Letter
Exhibit D - Form of Notice of Account Designation
Exhibit E - Form of Notice of Prepayment
Exhibit F - Form of Notice of
Conversion/Continuation
Exhibit G - Form of Officer's Compliance Certificate
Exhibit H - Form of Assignment and Acceptance
Exhibit I-1 - Form of Commitment Increase Supplement
Exhibit I-2 - Form of New Lender Supplement
Exhibit J - Form of Intercompany Note
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and
Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining
Agreements
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 10.1 - Existing ELLF Debt
Schedule 10.2 - Existing Guaranty Obligations
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
</TABLE>
CREDIT AGREEMENT, dated as of the 5th day of March, 1999, by
and among PERFORMANCE FOOD GROUP COMPANY, a Tennessee corporation
(the "Borrower"), the Lenders who are or may become a party to
this Agreement, and FIRST UNION NATIONAL BANK, as Administrative
Agent for the Lenders.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to
extend certain credit facilities to the Borrower on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties hereto, such parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
. The following terms when used in this Agreement shall have the
meanings assigned to them below:
"Absolute Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 2.3(b), the fixed percentage rate per
annum (expressed in the form of a decimal to no more than four
(4) decimal places) specified by the Lender making such
Competitive Bid.
"Absolute Rate Loan" means any Competitive Bid Loan bearing
interest at the Absolute Rate determined in accordance with
Section 2.3.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto
appointed pursuant to Section 12.9.
"Administrative Agent's Office" means the office of the
Administrative Agent specified in or determined in accordance
with the provisions of Section 13.1(c).
"Affiliate" means, with respect to any Person, any other
Person (other than a Subsidiary) which directly or indirectly
through one or more intermediaries, controls, or is controlled
by, or is under common control with, such first Person or any of
its Subsidiaries. The term "control" means (a) the power to vote
five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct
or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by
contract or otherwise.
"Aggregate Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
account of the Borrower hereunder in an aggregate principal
amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1 hereto as such amount
may be reduced or modified at any time or from time to time
pursuant to the terms hereof and (b) as to all Lenders, the
aggregate commitment of all Lenders to make Revolving Credit
Loans, as such amount may be reduced at any time or from time to
time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Eighty-Five Million Dollars
($85,000,000).
"Agreement" means this Credit Agreement, as amended,
restated or otherwise modified.
"Applicable Law" means all applicable provisions of
constitutions, laws, statutes, ordinances, rules, treaties,
regulations, permits, licenses, approvals, interpretations and
orders of courts or Governmental Authorities and all orders and
decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto
in Section 4.1(c).
"Application" means an application, in the form specified by
the Issuing Lender from time to time, requesting the Issuing
Lender to issue a Letter of Credit.
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 13.10.
"Base Rate" means, at any time, the higher of (a) the Prime
Rate and (b) the sum of (i) the Federal Funds Rate plus (ii) 1/2
of 1%; each change in the Base Rate shall take effect
simultaneously with the corresponding change or changes in the
Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
based upon the Base Rate as provided in Section 4.1(a).
"Borrower" has the meaning set forth in the preamble.
"Business Day" means (a) for all purposes other than as set
forth in clause (b) below, any day other than a Saturday, Sunday
or legal holiday on which banks in Charlotte, North Carolina and
New York, New York, are open for the conduct of their commercial
banking business, and (b) with respect to all notices and
determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day
described in clause (a) and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market.
"Capital Asset" means, with respect to the Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be
classified and accounted for as a capital asset on a Consolidated
balance sheet of the Borrower and its Subsidiaries.
"Capital Lease" means, with respect to the Borrower and its
Subsidiaries, any lease of any property that should, in
accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Borrower and
its Subsidiaries.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Subsidiary thereof, whether common or preferred.
"Capitalization" means, with respect to the Borrower and its
Subsidiaries at any date and without duplication, the sum of the
following calculated in accordance with GAAP: (a) Total Debt
plus (b) Consolidated Stockholders' Equity.
"Change in Control" shall have the meaning assigned thereto
in Section 11.1(i).
"Closing Date" means the date of this Agreement or such
later Business Day upon which each condition described in Section
5.2 shall be satisfied or waived in all respects in a manner
acceptable to the Administrative Agent, in its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the
rules and regulations thereunder, each as amended, supplemented
or otherwise modified.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to and issue or participate
in Letters of Credit issued for the account of the Borrower
hereunder in an aggregate principal or face amount at any time
outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1 hereto, as the same may be reduced,
increased or otherwise modified at any time or from time to time
pursuant to the terms hereof.
"Commitment Increase Supplement" shall have the meaning
assigned thereto in Section 2.8.
"Commitment Percentage" means, as to any Lender at any time,
the ratio of (a) the amount of the Commitment of such Lender to
(b) the Aggregate Commitment of all of the Lenders.
"Competitive Bid" means an offer by a Lender to make a
Competitive Bid Loan pursuant to Section 2.3.
"Competitive Bid Interest Period" shall have the meaning
assigned thereto in Section 4.1(b)(ii).
"Competitive Bid Loan" means any Loan bearing interest at
the Competitive Bid Rate determined in accordance with Section
2.3.
"Competitive Bid Notes" means the separate Competitive Bid
Notes made by the Borrower payable to the order of each of the
Lenders, substantially in the form of Exhibit A-2 hereto, and any
amendments and supplements thereto, any substitutes therefor, and
any replacements, restatements, renewals or extension thereof, in
whole or in part.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender pursuant to Section 2.3 in the case of (a) a LIBOR
Competitive Bid Loan, the LIBOR Rate adjusted by the Competitive
Margin and (b) an Absolute Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall have the meaning assigned
thereto in Section 2.3(a).
"Competitive Margin" means, as to any LIBOR Competitive Bid
Loan, the margin (expressed as a percentage rate per annum in the
form of a decimal to no more than four (4) decimal places) to be
added to or subtracted from the LIBOR Rate in order to determine
the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"Consolidated" means, when used with reference to financial
statements or financial statement items of the Borrower and its
Subsidiaries, such statements or items on a consolidated basis in
accordance with applicable principles of consolidation under
GAAP.
"Debt" means, with respect to the Borrower and its
Subsidiaries at any date and without duplication, the sum of the
following calculated on a Consolidated basis in accordance with
GAAP: (a) all liabilities, obligations and indebtedness for
borrowed money including but not limited to obligations evidenced
by bonds, debentures, notes or other similar instruments of the
Borrower or any Subsidiary thereof, (b) all obligations to pay
the deferred purchase price of property or services of the
Borrower or any Subsidiary thereof, including without limitation
all obligations under non-competition agreements but excluding
(i) trade payables arising in the ordinary course of business and
(ii) all amounts payable under any earn-out agreement unless any
such earn-out payment is payable in cash and has been deemed
earned and required to be included on the financial statements of
the Borrower or any Subsidiary thereof in accordance with GAAP,
(c) all obligations of the Borrower or any Subsidiary thereof as
lessee under Capital Leases, (d) all Debt of any other Person
secured by a Lien on any asset of the Borrower or any Subsidiary
thereof, (e) all Guaranty Obligations of the Borrower or any
Subsidiary thereof (excluding any Guaranty Obligations on account
of trade payables arising in the ordinary course of business),
(f) all obligations, contingent or otherwise, of the Borrower or
any Subsidiary thereof relative to the face amount of letters of
credit, whether or not drawn, including without limitation any
Reimbursement Obligation, and banker's acceptances issued for the
account of the Borrower or any Subsidiary thereof, (g) all
obligations of the Borrower or any Subsidiary thereof to redeem,
repurchase, exchange, defease or otherwise make payments in
respect of capital stock or other securities of the Borrower or
any Subsidiary thereof and (h) all obligations incurred by the
Borrower or any Subsidiary thereof pursuant to Hedging
Agreements.
"Default" means any of the events specified in Section 11.1
which with the passage of time, the giving of notice or any other
condition, would constitute an Event of Default.
"Disputes" has the meaning assigned to such term in Section
13.6.
"Dollars" or "$" means, unless otherwise qualified, dollars
in lawful currency of the United States.
"EBITDA" means, for any period, the sum of the following
determined on a Consolidated basis, without duplication, for the
Borrower and its Subsidiaries in accordance with GAAP: (a) Net
Income for such period plus (b) the sum of the following to the
extent deducted in determining Net Income: (i) income and
franchise taxes, (ii) Interest Expense, (iii) amortization,
depreciation and other non-cash charges less (c) interest income
and any extraordinary gains which were included in determining
Net Income.
"EBITDAR" means, for any period, the sum of (a) EBITDA for
such period plus (b) Rental Expense for such period, in each case
on a Consolidated basis, without duplication, for the Borrower
and its Subsidiaries in accordance with GAAP.
"Eligible Assignee" means, with respect to any assignment of
the rights, interest and obligations of a Lender hereunder, a
Person that is at the time of such assignment (a) a commercial
bank organized under the laws of the United States or any state
thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of
any other country that is a member of the Organization of
Economic Cooperation and Development, or a political subdivision
of any such country, having combined capital and surplus in
excess of $500,000,000, (c) a finance company, insurance company
or other financial institution which in the ordinary course of
business extends credit of the type extended hereunder and that
has total assets in excess of $1,000,000,000, (d) already a
Lender hereunder (whether as an original party to this Agreement
or as the assignee of another Lender), (e) the successor (whether
by transfer of assets, merger or otherwise) to all or
substantially all of the commercial lending business of the
assigning Lender, or (f) any other Person that has been approved
in writing as an Eligible Assignee by the Borrower and the
Administrative Agent.
"ELLF" means, at any date with respect to the Borrower and
its Subsidiaries, any synthetic lease, end loaded lease
financing, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product to which the
Borrower or any Subsidiary thereof is a party, where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance
with GAAP on a consistent basis.
"Employee Benefit Plan" means any employee benefit plan
within the meaning of Section 3(3) of ERISA which (a) is
maintained for employees of the Borrower or any ERISA Affiliate
or (b) has at any time within the preceding six years been
maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and
local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or
Governmental Authorities, relating to the protection of human
health or the environment, including, but not limited to,
requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Materials.
"Equity Net Cash Proceeds" means, with respect to any
offering of capital stock, the gross cash proceeds received by
the Borrower or any of its Subsidiaries therefrom less all legal,
underwriting and other fees and expenses incurred in connection
therewith.
"ERISA" means the Employee Retirement Income Security Act of
1974, and the rules and regulations thereunder, each as amended,
supplemented or otherwise modified.
"ERISA Affiliate" means any Person who together with the
Borrower is treated as a single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of
ERISA.
"Eurodollar Reserve Percentage" means, for any day, the
percentage (expressed as a decimal and rounded upwards, if
necessary, to the next higher 1/100th of 1%) which is in effect
for such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or
emergency reserves) in respect of eurocurrency liabilities or any
similar category of liabilities for a member bank of the Federal
Reserve System in New York City.
"Event of Default" means any of the events specified in
Section 11.1, provided that any requirement for passage of time,
giving of notice, or any other condition, has been satisfied.
"Existing Facility" means the Revolving Credit Agreement
dated as of July 8, 1996 (as amended, restated or otherwise
modified) between the Borrower and First Union National Bank of
Virginia.
"Extensions of Credit" means, as to any Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount
of all Revolving Credit Loans made by such Lender then
outstanding and (b) such Lender's Commitment Percentage of the
L/C Obligations then outstanding.
"FDIC" means the Federal Deposit Insurance Corporation, or
any successor thereto.
"Facility" means the revolving credit facility established
pursuant to Article II hereof.
"Facility Fee" shall have the meaning assigned thereto in
Section 4.3(a).
"Federal Funds Rate" means, the rate per annum (rounded
upwards, if necessary, to the next higher 1/100th of 1%)
representing the daily effective federal funds rate as quoted by
the Administrative Agent and confirmed in Federal Reserve Board
Statistical Release H.15 (519) or any successor or substitute
publication selected by the Administrative Agent. If, for any
reason, such rate is not available, then "Federal Funds Rate"
shall mean a daily rate which is determined, in the opinion of
the Administrative Agent, to be the rate at which federal funds
are being offered for sale in the national federal funds market
at 9:00 a.m. (Charlotte time). Rates for weekends or holidays
shall be the same as the rate for the most immediate preceding
Business Day.
"First Union" means First Union National Bank, a national
banking association, and its successors.
"Fiscal Year" means the 52 or 53 week fiscal year of the
Borrower and its Subsidiaries ending on the Saturday closest to
December 31.
"GAAP" means generally accepted accounting principles, as
recognized by the American Institute of Certified Public
Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the
Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and
its Subsidiaries.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings
with, and reports to, all Governmental Authorities.
"Governmental Authority" means any nation, province, state
or political subdivision thereof, and any government or any
Person exercising executive, legislative, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, with respect to the Borrower
and its Subsidiaries, without duplication, any obligation,
contingent or otherwise, of any such Person pursuant to which
such Person has directly or indirectly guaranteed any Debt or
other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or
pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase
assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or
(b) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or
deposit in the ordinary course of business.
"Hazardous Materials" means any substances or materials (a)
which are or become defined as hazardous wastes, hazardous
substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Applicable Law, (b) which
are toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by
any Governmental Authority, (c) the presence of which require
investigation or remediation under any Applicable Law, (d) the
discharge or emission or release of which requires a permit or
license under any Applicable Law or other Governmental Approval,
(e) which are deemed, under Applicable Law, to constitute a
nuisance, a trespass or pose a health or safety hazard to persons
or neighboring properties, (f) which consist of underground or
aboveground storage tanks, whether empty, filled or partially
filled with any hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or
toxic substances under any Applicable Law, or (g) which contain,
without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas
or synthetic gas.
"Hedging Agreement" means any agreement with respect to an
interest rate swap, collar, cap, floor or a forward rate
agreement or other agreement regarding the hedging of interest
rate risk exposure executed in connection with hedging the
interest rate exposure of the Borrower, and any confirming letter
executed pursuant to such hedging agreement, all as amended,
restated or otherwise modified.
"Intercompany Notes" means the collective reference to the
promissory notes executed in connection with this Agreement of
the Subsidiaries payable to the order of the Borrower in the
maximum amount of the Aggregate Commitment as may be increased
hereunder in substantially the form of Exhibit J, as amended,
restated, supplemented or otherwise modified, from time to time
and as endorsed to the order of the Administrative Agent for the
benefit of itself and the Lenders and "Intercompany Note" means
any of such Intercompany Notes.
"Interest Expense" means, for any period, total interest
expense (including, without limitation, interest expense
attributable to capital leases) determined on a Consolidated
basis, without duplication, for the Borrower and its Subsidiaries
in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in
Section 4.1(b).
"Issuing Lender" means First Union, in its capacity as
issuer of any Letter of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility
established pursuant to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the
sum of (a) the aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit which have not then been
reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the
Lenders other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a
Lender set forth on the signature pages hereto and each Person
that hereafter becomes a party to this Agreement as (a) a New
Lender pursuant to Section 2.8 or (b) a Lender pursuant to
Section 13.10.
"Lending Office" means, with respect to any Lender, the
office of such Lender maintaining such Lender's Commitment
Percentage of the Loans.
"Letters of Credit" shall have the meaning assigned thereto
in Section 3.1.
"Leverage Ratio" shall have the meaning assigned thereto in
Section 9.1.
"LIBOR" means the rate of interest per annum determined on
the basis of the rate for deposits in Dollars in minimum amounts
of at least $3,000,000 for a period equal to the applicable
Interest Period which appears on the Dow Jones Market Screen 3750
at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period. If,
for any reason, such rate does not appear on Dow Jones Market
Screen 3750, then "LIBOR" shall be determined by the
Administrative Agent to be the arithmetic average of the rate per
annum at which deposits in Dollars would be offered by first
class banks in the London interbank market to the Administrative
Agent approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for
a period equal to such Interest Period and in an amount
substantially equal to the amount of the applicable Loan.
"LIBOR Competitive Bid Loan" means any Competitive Bid Loan
denominated in Dollars and bearing interest at a rate determined
by reference to the LIBOR Rate at the sole discretion of the
Lender of such Competitive Bid Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate
based upon the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien
pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Capital Lease or
other title retention agreement relating to such asset.
"Loans" means the collective reference to the Revolving
Credit Loans and the Competitive Bid Loans and "Loan" means any
of such Loans.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Intercompany Notes, the Applications, any Hedging
Agreement with any Lender which such Hedging Agreement is
permitted or required hereunder) and each other document,
instrument, certificate and agreement executed and delivered by
the Borrower, its Subsidiaries or their counsel in connection
with this Agreement or otherwise referred to herein or
contemplated hereby, all as may be amended, restated or otherwise
modified.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any
adverse determination in any litigation, arbitration or
governmental investigation or proceeding), whether singly or in
conjunction with any other event, act, condition, occurrence,
whether or not related, a material adverse change in, or a
material adverse effect upon, any of (a) the financial condition,
operations, business or properties of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or the Lenders under the Loan Documents, (c)
the ability of the Borrower to perform the Obligations under the
Loan Documents or (d) the legality, validity or enforceability of
any Loan Document.
"Material Contract" means (a) any contract or other
agreement, written or oral, of the Borrower or any of its
Subsidiaries involving monetary liability of or to any such
Person in an amount in excess of $1,000,000 per annum, or (b) any
other contract or agreement, written or oral, of the Borrower or
any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"Maturity Date" means the earliest of the dates referred to
in Section 2.7.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions within the preceding six years.
"Net Income" means, with respect to the Borrower and its
Subsidiaries for any period, the Consolidated net income (or
loss) thereof for such period determined without duplication in
accordance with GAAP.
"Net Worth" means, with respect to the Borrower and its
Subsidiaries at any date, total Stockholders' Equity determined
on a Consolidated basis, without duplication, in accordance with
GAAP.
"New Lender" shall have the meaning assigned thereto in
Section 2.8.
"New Lender Supplement" shall have the meaning assigned
thereto in Section 2.8.
"Notes" means the collective reference to the Revolving
Credit Notes and the Competitive Bid Notes and "Note" means any
of such Notes.
"Notice of Account Designation" shall have the meaning
assigned thereto in Section 2.2(b).
"Notice of Revolving Credit Borrowing" shall have the
meaning assigned thereto in Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned
thereto in Section 2.4(c).
"Obligations" means, in each case, whether now in existence
or hereafter arising: (a) the principal of and interest on
(including interest accruing after the filing of any bankruptcy
or similar petition) the Loans, (b) the L/C Obligations, (c) all
payment and other obligations owing by the Borrower to any Lender
or the Administrative Agent under any Hedging Agreement with any
Lender (which such Hedging Agreement is permitted or required
hereunder), and (d) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing
by the Borrower to the Lenders or the Administrative Agent, of
every kind, nature and description, direct or indirect, absolute
or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any
note, in each case under or in respect of this Agreement, any
Note, any Letter of Credit or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning
assigned thereto in Section 7.2.
"Other Taxes" shall have the meaning assigned thereto in
Section 4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title
IV of ERISA or Section 412 of the Code and which (a) is
maintained for employees of the Borrower or any ERISA Affiliates
or (b) has at any time within the preceding six years been
maintained for the employees of the Borrower or any of their
current or former ERISA Affiliates.
"Permitted Acquisition" shall have the meaning assigned
thereto in Section 10.4(c).
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint
venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental
Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per
annum publicly announced from time to time by First Union as its
prime rate. Each change in the Prime Rate shall be effective as
of the opening of business on the day such change in the Prime
Rate occurs. The parties hereto acknowledge that the rate
announced publicly by First Union as its Prime Rate is an index
or base rate and shall not necessarily be its lowest or best rate
charged to its customers or other banks.
"Register" shall have the meaning assigned thereto in
Section 13.10(d).
"Reimbursement Obligation" means the obligation of the
Borrower to reimburse the Issuing Lender pursuant to Section 3.5
for amounts drawn under Letters of Credit.
"Rental Expense" means, for any period, all rental expense
on account of all long-term leases (excluding any such lease that
is cancelable without cause by the Borrower or any Subsidiary
thereof) during such period determined on a Consolidated basis,
without duplication, for the Borrower and its Subsidiaries in
accordance with GAAP.
"Required Lenders" means, at any date, any combination of
holders of at least sixty-six and two-thirds percent (66-2/3%) of
the aggregate unpaid principal amount of the Revolving Credit
Notes, or if no amounts are outstanding under the Revolving
Credit Notes, any combination of Lenders whose Commitment
Percentages aggregate at least sixty-six and two-thirds percent
(66-2/3%).
"Responsible Officer" means any of the following: the chief
executive officer or chief financial officer of the Borrower or
any other officer of the Borrower reasonably acceptable to the
Administrative Agent.
"Revolving Credit Loans" means any revolving loan made to
the Borrower pursuant to Section 2.1, and all such revolving
loans collectively as the context requires.
"Revolving Credit Notes" means the collective reference to
the Revolving Credit Notes made by the Borrower payable to the
order of each Lender, substantially in the form of Exhibit A-1
hereto, evidencing the Facility, and any amendments and
modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in
whole or in part; "Revolving Credit Note" means any of such
Revolving Credit Notes.
"Solvent" means, as to the Borrower and, on a combined
basis, its Subsidiaries on a particular date, that any such
Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is
about to engage and is able to pay its debts as they mature, (b)
owns property having a value, both at fair valuation and at
present fair saleable value, greater than the amount required to
pay its probable liabilities (including contingencies), and (c)
does not believe that it will incur debts or liabilities beyond
its ability to pay such debts or liabilities as they mature.
"Stockholders' Equity" means, as of any date of
determination, the shareholders' equity of the Borrower and its
Subsidiaries, as set forth or reflected on the most recent
Consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP, (a) including but not limited
to (i) the par or stated value of all outstanding Capital Stock,
(ii) capital surplus, (iii) retained earnings and (b) excluding
items such as (i) purchases of treasury stock, (ii) valuation
allowances, (iii) receivables due from an employee stock
ownership plan, (iv) employee stock ownership plan debt
guarantees (to the extent not included in item (b)(iii) hereof)
and (v) translation adjustments for foreign currency
transactions.
"Subsidiary" means as to any Person, any corporation,
partnership, limited liability company or other entity of which
more than fifty percent (50%) of the outstanding capital stock or
other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such
corporation, partnership, limited liability company or other
entity is at the time, directly or indirectly, owned by or the
management is otherwise controlled by such Person (irrespective
of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have
or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the
Borrower.
"Tax Credit" shall have the meaning assigned thereto in
Section 4.11(g).
"Tax Payment" shall have the meaning assigned thereto in
Section 4.11(g).
"Taxes" shall have the meaning assigned thereto in Section
4.11(a).
"Termination Event" means: (a) a "Reportable Event"
described in Section 4043 of ERISA, or (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan
year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension
Plan or the treatment of a Pension Plan amendment as a
termination under Section 4041 of ERISA, or (d) the institution
of proceedings to terminate, or the appointment of a trustee with
respect to, any Pension Plan by the PBGC, or (e) any other event
or condition which would constitute grounds under Section 4042(a)
of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan, or (f) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan, or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (h) any event
or condition which results in the reorganization or insolvency of
a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i)
any event or condition which results in the termination of a
Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA.
"Total Debt" means, as of any date of determination with
respect to the Borrower and its Subsidiaries on a Consolidated
basis without duplication, the sum of (a) Debt plus (b) all
outstanding indebtedness obligations actually incurred under or
on account of any ELLF, each in accordance with GAAP.
"Uniform Customs" the Uniform Customs and Practice for
Documentary Credits (1993 Revision, effective January 1, 1994),
International Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the
State of North Carolina, as amended, restated or otherwise
modified.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, that all
of the shares of capital stock or other ownership interests of
such Subsidiary are, directly or indirectly, owned or controlled
by the Borrower and/or one or more of its Wholly-Owned
Subsidiaries.
SECTION 1.2 General
. Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of
this Agreement. Wherever from the context it appears
appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter. Any reference herein to "Charlotte
time" shall refer to the applicable time of day in Charlotte,
North Carolina.
SECTION 1.3 Other Definitions and Provisions
.
(a) Use of Capitalized Terms. Unless otherwise defined
therein, all capitalized terms defined in this Agreement shall
have the defined meanings when used in this Agreement, the Notes
and the other Loan Documents or any certificate, report or other
document made or delivered pursuant to this Agreement.
(b) Miscellaneous. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans and Competitive Bid Loans.
(a) Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to
make Revolving Credit Loans to the Borrower from time to time
from the Closing Date through the Maturity Date as requested by
the Borrower in accordance with the terms of Section 2.2;
provided, that (a) the aggregate principal amount of all
outstanding Revolving Credit Loans (after giving effect to any
amount requested) shall not exceed the Aggregate Commitment less
the sum of all outstanding Competitive Bid Loans and L/C
Obligations and (b) the principal amount of outstanding Revolving
Credit Loans from any Lender to the Borrower shall not at any
time exceed such Lender's Commitment less such Lender's
Commitment Percentage of outstanding L/C Obligations. Each
Revolving Credit Loan by a Lender shall be in a principal amount
equal to such Lender's Commitment Percentage of the aggregate
principal amount of Revolving Credit Loans requested on such
occasion. Subject to the terms and conditions hereof, the
Borrower may borrow, repay and reborrow Revolving Credit Loans
hereunder until the Maturity Date.
(b) Competitive Bid Loans. Subject to the terms and
conditions of this Agreement, the Borrower may, prior to the
Maturity Date and pursuant to the procedures set forth in Section
2.3, request the Lenders to make offers to make Competitive Bid
Loans; provided, that the aggregate principal amount of all
outstanding Competitive Bid Loans (after giving effect to any
amount requested and the use of proceeds thereof) shall not
exceed the Aggregate Commitment less the sum of all outstanding
Revolving Credit Loans and L/C Obligations. The Lenders may, but
shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers in
the manner set forth in Section 2.3.
SECTION 2.2 Procedure for Advances of Revolving
Credit Loans
.
(a) Requests for Borrowing. The Borrower shall give the
Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Revolving Credit
Borrowing") not later than 11:00 a.m. (Charlotte time) (i) on the
same Business Day as each Base Rate Loan and (ii) at least three
(3) Business Days before each LIBOR Rate Loan, of its intention
to borrow, specifying (A) the date of such borrowing, which shall
be a Business Day, (B) the amount of such borrowing, which shall
be in an amount equal to the amount of the Aggregate Commitment
then available to the Borrower, or if less, (x) with respect to
Base Rate Loans in an aggregate principal amount of $1,000,000 or
a whole multiple of $250,000 in excess thereof and (y) with
respect to LIBOR Rate Loans in an aggregate principal amount of
$3,000,000 or a whole multiple of $1,000,000 in excess thereof,
(C) whether such Loan is to be a Revolving Credit Loan, (D) in
the case of a Revolving Credit Loan whether the Loans are to be
LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a
LIBOR Rate Loan, the duration of the Interest Period applicable
thereto. Notices received after 11:00 a.m. (Charlotte time)
shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each
Notice of Borrowing.
(b) Disbursement of Revolving Credit Loans. Not later than
2:00 p.m. (Charlotte time) on the proposed borrowing date, each
Lender will make available to the Administrative Agent, for the
account of the Borrower, at the office of the Administrative
Agent in funds immediately available to the Administrative Agent,
such Lender's Commitment Percentage of the Revolving Credit Loans
to be made on such borrowing date. The Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the
proceeds of each borrowing requested pursuant to this Section 2.2
in immediately available funds by crediting or wiring such
proceeds to the deposit account of the Borrower identified in the
most recent notice substantially in the form of Exhibit D hereto
(a "Notice of Account Designation") delivered by the Borrower to
the Administrative Agent or may be otherwise agreed upon by the
Borrower and the Administrative Agent from time to time. Subject
to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the portion of the proceeds of any
Revolving Credit Loan requested pursuant to this Section 2.2 to
the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan.
SECTION 2.3 Procedure for Advance of
Competitive Bid Loans.
(a) Competitive Bid Request. In order to request
Competitive Bids, the Borrower shall deliver to the
Administrative Agent a duly completed Competitive Bid Request in
the form of Exhibit C-1 hereto (a "Competitive Bid Request") to
be received by the Administrative Agent not later than 11:00 a.m.
(Charlotte time) (i) five (5) Business Days before each proposed
LIBOR Competitive Bid Loan and (ii) two (2) Business Days before
each proposed Absolute Rate Loan; provided that, the Borrower may
not submit more than two (2) Competitive Bid Requests during any
period of five (5) consecutive Business Days. Notwithstanding
the foregoing, the Borrower may not submit more than six (6)
Competitive Bid Requests during any calendar month. A
Competitive Bid Request that does not conform substantially to
the form of Exhibit C-1 may be rejected in the Administrative
Agent's sole discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telephone
promptly confirmed by telecopy. Such request shall in each case
refer to this Agreement and specify (i) whether the borrowing
then being requested is to be a LIBOR Competitive Bid Loan or an
Absolute Rate Loan, (ii) the date of such borrowing (which shall
be a Business Day), (iii) the aggregate principal amount of such
borrowing which shall be in a minimum principal amount of
$3,000,000 or a whole multiple of $1,000,000 in excess thereof
and (iv) the Competitive Bid Interest Periods with respect to
each LIBOR Competitive Bid Loan and each Absolute Rate Loan which
Competitive Bid Interest Periods may not expire on a date later
than the first Business Day prior to the Maturity Date; provided,
that the Borrower may not request bids for more than three (3)
different durations of Competitive Bid Interest Periods in the
same Competitive Bid Request. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit C-2 hereto) the Lenders to bid, on the terms and
conditions of this Agreement, to make Competitive Bid Loans
pursuant to the Competitive Bid Request.
(b) Competitive Bids.
(i) Each Lender may, in its sole discretion, make up
to three (3) Competitive Bids to the Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent via telecopier, in the
form of Exhibit C-3 hereto, (A) not later than 10:30 a.m.
(Charlotte time) three (3) Business Days before any proposed
LIBOR Competitive Bid Loan and (B) not later than 10:30 a.m.
(Charlotte time) on the same Business Day as a proposed Absolute
Rate Loan, and any Competitive Bid received by the Administrative
Agent after such time can be rejected by the Administrative
Agent. Competitive Bids that do not conform substantially to the
form of Exhibit C-3 or otherwise include additional conditions to
funding shall be rejected by the Administrative Agent and the
Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (A) the
principal amount of the Competitive Bid Loan or Loans that the
Lender is willing to make to the Borrower which shall be in a
minimum principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof and may equal the entire principal
amount of the Competitive Bid Loan requested by the Borrower, (B)
the Competitive Bid Rate or Rates at which the Lender is prepared
to make the Competitive Bid Loan or Loans and (C) the Competitive
Bid Interest Period with respect thereto. A Competitive Bid
submitted by a Lender pursuant to this paragraph (b) shall be
irrevocable.
(ii) If the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Lender, it shall submit
such bid directly to the Borrower at least one quarter (1/4) of
an hour earlier than the latest time at which the other Lenders
are required to submit their bids to the Administrative Agent
pursuant to clause (i) above.
(iii) The Administrative Agent shall notify the
Borrower by telecopier, (A) not later than 11:00 a.m. (Charlotte
time) three (3) Business Days before a proposed LIBOR Competitive
Bid Loan and (B) not later than 11:00 a.m. (Charlotte time) on
the same Business Day of each proposed Absolute Rate Loan, of all
the Competitive Bids made, the Competitive Bid Rate or Rates, the
principal amount of each Competitive Bid Loan in respect of which
a Competitive Bid was made, the Competitive Bid Interest Period
applicable to each such LIBOR Competitive Bid Loan and the
identity of the Lender that made each bid. The Administrative
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 2.3.
(iv) All notices required by this Section 2.3 shall be
given in accordance with Section 13.1.
(c) Acceptance/Rejection.
(i) The Borrower may, in its sole and absolute
discretion, subject only to the provisions of this paragraph (c),
accept or reject any Competitive Bid referred to in paragraph (b)
above. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopier in the form of Exhibit C-4
hereto (a "Competitive Bid Accept/Reject Letter"), whether and to
what extent it has decided to accept or reject any or all of the
bids referred to in paragraph (b) above, (A) not later than 11:30
a.m. (Charlotte time) three (3) Business Days before a proposed
LIBOR Competitive Bid Loan and (B) not later than 11:30 a.m.,
Charlotte time, on the day of each proposed Absolute Rate Loan;
provided, that (A) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred
to in paragraph (b) above, (B) the acceptance of bids by the
Borrower shall be made on the basis of ascending order (from
lowest to highest) of bids for LIBOR Competitive Bid Loans or
Absolute Rate Loans within each Competitive Bid Interest Period
and the Borrower shall not accept a bid made at a particular
Competitive Bid Rate for a particular Competitive Bid Interest
Period if the Borrower has rejected a bid made at a lower
Competitive Bid Rate for the same Competitive Bid Interest
Period, (C) if Competitive Bids are made by two (2) or more
Lenders for the same Competitive Bid Rate and the same
Competitive Bid Interest Period, the principal amount accepted
shall be allocated among such Lenders by the Borrower (after
consultation with the Administrative Agent) in integral multiples
of not less than $1,000,000, (D) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (E) if
the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate and such bid or bids would cause the total
amount of accepted bids to exceed the amount specified in the
Competitive Bid Request, then the amount of the bid or aggregate
amount of the bids made at such Competitive Bid Rate shall be
reduced ratably as necessary to eliminate such excess, and (F)
except pursuant to clause (E) above, no bid shall be accepted for
a Competitive Bid Loan unless such Competitive Bid Loan is in a
minimum principal amount of $3,000,000 or a whole multiple of
$1,000,000 in excess thereof; and provided further, that if a
Competitive Bid Loan must be in an amount less than $3,000,000 or
an integral multiple of $1,000,000 due to the provisions of
clause (E) above, such Competitive Bid Loan may be for a minimum
of $1,000,000 or a whole multiple of $500,000 in excess thereof,
and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (D) the amounts shall be rounded to integral
multiples of $100,000 in a manner which shall be in the
discretion of the Borrower. A notice given by the Borrower
pursuant to this paragraph (c) shall be irrevocable.
(ii) The Administrative Agent shall promptly notify
each bidding Lender whether or not its Competitive Bid has been
accepted (and if so, in what amount and at what Competitive Bid
Rate) by telecopy, and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof,
to make the Competitive Bid Loan in respect of which its bid has
been accepted.
(d) Disbursement of Competitive Bid Loans. Not later than
2:00 p.m. (Charlotte time) on the proposed borrowing date, each
Lender whose Competitive Bid was accepted will make available to
the Administrative Agent, for the account of the Borrower, at the
office of the Administrative Agent in funds immediately available
to the Administrative Agent, such Lender's Competitive Bid Loan
to be made on such borrowing date. After receipt thereof from
the applicable Lenders, the Administrative Agent shall disburse
not later than 3:30 p.m. (Charlotte time) the proceeds of each
borrowing accepted pursuant to Section 2.3(c) in immediately
available funds by crediting such proceeds to the deposit account
or accounts specified in the most recent Notice of Account
Designation delivered by the Borrower or as may be agreed upon by
the Borrower and the Administrative Agent from time to time. The
Administrative Agent shall not be obligated to disburse the
proceeds of any Competitive Bid Loan accepted pursuant to Section
2.3(c) until the applicable Lender shall have made available to
the Administrative Agent its Competitive Bid Loan.
(e) Administrative Agent's Fee. For each Competitive Bid
Request received by the Administrative Agent hereunder, the
Borrower shall pay to the Administrative Agent a fee of $1,500.
SECTION 2.4 Repayment of Loans
.
(a) Repayment on Maturity Date. The Borrower shall repay
the outstanding principal amount of (i) all Revolving Credit
Loans in full on the Maturity Date and (ii) each Competitive Bid
Loan on the expiration date of the applicable Competitive Bid
Interest Period, together, in each case, with all accrued but
unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time
the outstanding principal amount of all Revolving Credit Loans
plus the sum of all outstanding Competitive Bid Loans plus all
outstanding L/C Obligations exceeds the Aggregate Commitment, the
Borrower shall repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for
the account of the Lenders, Revolving Credit Loans, Competitive
Bid Loans and/or cash collateralize or repay the L/C Obligations
in an amount equal to such excess with each such repayment
applied first to the principal amount of outstanding Revolving
Credit Loans, second to the principal amount of outstanding L/C
Obligations, and third to the principal amount of outstanding
Competitive Bid Loans, in the inverse order of maturity of any
such Competitive Bid Loans. Such cash collateral shall be
applied in accordance with Section 11.2(b). Each such repayment
shall be accompanied by any amount required to be paid pursuant
to Section 4.9 hereof.
(c) Optional Repayments. The Borrower may at any time and
from time to time repay the Loans, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the
Administrative Agent with respect to LIBOR Rate Loans and
Competitive Bid Loans and one (1) Business Day irrevocable notice
with respect to Base Rate Loans, in the form attached hereto as
Exhibit E (a "Notice of Prepayment") specifying the date and
amount of repayment and whether the repayment is of LIBOR Rate
Loans, Competitive Bid Loans, Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable
to each. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender. If any such notice is given,
the amount specified in such notice shall be due and payable on
the date set forth in such notice. Partial repayments shall be
in an aggregate amount of $1,000,000 or a whole multiple of
$250,000 in excess thereof with respect to Base Rate Loans and
$3,000,000 or a whole multiple of $1,000,000 in excess thereof
with respect to LIBOR Rate Loans or Competitive Bid Loans. Each
such repayment shall be accompanied by any amount required to be
paid pursuant to Section 4.9 hereof.
(d) Limitation on Repayment of Certain Loans. The Borrower
may not repay any LIBOR Rate Loan or any Competitive Bid Loan on
any day other than on the last day of the LIBOR Interest Period
or Competitive Bid Interest Period, respectively, applicable
thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
SECTION 2.5 Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit
Loans and the obligation of the Borrower to repay such Revolving
Credit Loans shall be evidenced by a separate Revolving Credit
Note executed by the Borrower payable to the order of such Lender
representing the Borrower's obligation to pay such Lender's
Commitment or, if less, the aggregate unpaid principal amount of
all Revolving Credit Loans made and to be made by such Lender to
the Borrower hereunder, plus interest and all other fees, charges
and other amounts due thereon. Each Revolving Credit Note shall
be dated the date hereof and shall bear interest on the unpaid
principal amount thereof at the applicable interest rate per
annum specified in Section 4.1.
(b) Competitive Bid Notes. Each Lender's Competitive Bid
Loans and the obligation of the Borrower to repay such
Competitive Bid Loans shall be evidenced by a Competitive Bid
Note executed by the Borrower payable to the order of such Lender
representing the Borrower's obligation to pay such Lender's
Competitive Bid Loans in a principal amount up to the Aggregate
Commitment or, if less, the aggregate unpaid principal amount of
all Competitive Bid Loans made by such Lender to the Borrower
hereunder, plus interest on such principal amounts and all other
fees, charges and other amounts due thereon. Each Competitive
Bid Note shall be dated the Closing Date and shall bear interest
on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 4.1.
SECTION 2.6 Voluntary Reduction of the Aggregate
Commitment.
(a) The Borrower shall have the right at any time and from
time to time, upon at least five (5) Business Days prior written
notice to the Administrative Agent, to permanently reduce,
without premium or penalty, (i) the Aggregate Commitment at any
time or (ii) portions of the Aggregate Commitment, from time to
time, in an aggregate principal amount not less than $3,000,000
or any whole multiple of $1,000,000 in excess thereof.
(b) Each permanent reduction permitted pursuant to this
Section 2.6 shall be accompanied by a payment of principal
sufficient to reduce the aggregate outstanding Revolving Credit
Loans, Competitive Bid Loans and L/C Obligations, as applicable,
after such reduction to the Aggregate Commitment as so reduced
and if the Aggregate Commitment as so reduced is less than the
aggregate amount of all outstanding Letters of Credit, the
Borrower shall be required to deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of
Credit. Any reduction of the Aggregate Commitment to zero shall
be accompanied by payment of all outstanding Revolving Credit
Loans and Competitive Bid Loans (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C
Obligations) and shall result in the termination of the Aggregate
Commitment and the Facility. Such cash collateral shall be
applied in accordance with Section 11.2(b). If the reduction of
the Aggregate Commitment requires the repayment of any LIBOR Rate
Loan or Competitive Bid Loans, such repayment shall be
accompanied by any amount required to be paid pursuant to Section
4.9 hereof.
SECTION 2.7 Termination of Facility
. The Facility shall terminate on the earliest of (a) March 5,
2002, (b) the date of termination by the Borrower pursuant to
Section 2.6(a), and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section
11.2(a).
SECTION 2.8 Increases in Facility
. The Borrower shall have the right, on ten (10) Business Days'
prior written notice to the Administrative Agent, so long as no
Default or Event of Default shall have occurred and be continuing
and with the consent of the Required Lenders (which consent shall
not be unreasonably withheld), at any time and from time to time
prior to the second anniversary of the Closing Date, to increase
the total amount of the Aggregate Commitment hereunder by (a)
accepting the offer of any existing Lender or Lenders to increase
its (or their) Commitment (or Commitments) up to the amount of
any such increase and/or (b) accepting the offer or offers of any
Person or Persons (not then a Lender) with the consent of the
Administrative Agent constituting an Eligible Assignee to become
a new Lender hereto (a "New Lender") with a Commitment (or
Commitments) up to the amount (or aggregate amount) of any such
increase; provided, that any such increase shall be offered first
to the Administrative Agent and then to the existing Lenders (on
a pro rata basis) prior to offering any such increase to a Person
not a party to this Agreement; provided, further, that (i) in no
event shall any Lender's Commitment be increased without the
consent of such Lender, (ii) if any Revolving Credit Loans are
outstanding hereunder on the date that any such increase is to
become effective, the Administrative Agent and Lenders shall make
such transfers of funds as are necessary in order that the
outstanding balance of such Revolving Credit Loans reflect the
Commitment Percentages of the Lenders after giving effect to any
increase pursuant to this Section 2.8, (iii) each such increase
shall be in minimum amounts of at least Five Million Dollars
($5,000,000), and (iv) in no event shall any such increase result
in the amount of the Aggregate Commitment exceeding One Hundred
Million Dollars ($100,000,000). Any increase to the Aggregate
Commitment pursuant to clause (a) of the first sentence of this
Section 2.8 shall become effective upon the execution of a
supplement in the form of Exhibit I-1 hereto (a "Commitment
Increase Supplement"), executed by the Borrower, the
Administrative Agent and the increasing Lender or Lenders
together with a replacement Revolving Credit Note and any
increase to the Aggregate Commitment pursuant to clause (b) of
the first sentence of this Section 2.8 shall become effective
upon the execution of a supplement in the form of Exhibit I-2
hereto (a "New Lender Supplement") by the Borrower,
Administrative Agent and relevant New Lender or Lenders together
with a corresponding Revolving Credit Note. The Administrative
Agent shall forward copies of any such supplement to the Lenders
promptly upon receipt thereof.
SECTION 2.9 Use of Proceeds
. The Borrower shall use the proceeds of the Extensions of
Credit (a) to refinance certain existing indebtedness, including
without limitation the Existing Facility and (b) for working
capital and general corporate requirements (including Permitted
Acquisitions) of the Borrower and its Subsidiaries, including the
payment of certain fees and expenses incurred in connection with
the transactions.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment
. Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Lenders set
forth in Section 3.4(a), agrees to issue standby letters of
credit ("Letters of Credit") for the account of the Borrower on
any Business Day from the Closing Date through but not including
the Maturity Date in such form as may be approved from time to
time by the Issuing Lender; provided, that the Issuing Lender
shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (a) the L/C Obligations would
exceed the L/C Commitment or (b) the aggregate principal amount
of outstanding Revolving Credit Loans, plus the sum of all
outstanding Competitive Bid Loans, plus the aggregate amount of
L/C Obligations would exceed the Aggregate Commitment. Each
Letter of Credit shall (i) be denominated in Dollars in a minimum
amount of $250,000, (ii) be a standby letter of credit issued to
support obligations of the Borrower or any of its Subsidiaries,
contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than the earlier of (a) one
(1) year after the date of issuance or (b) the Maturity Date and
(iv) be subject to the Uniform Customs or, at the Administrative
Agent's option, the International Standby Practices 1998 and, to
the extent not inconsistent therewith, the laws of the State of
North Carolina. The Issuing Lender shall not at any time be
obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any
L/C Participant to exceed any limits imposed by, any Applicable
Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or
modifications of any existing Letters of Credit, unless the
context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of
Credit
The Borrower may from time to time request that the Issuing
Lender issue a Letter of Credit by delivering to the Issuing
Lender at the Administrative Agent's Office an Application
therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of
any Application, the Issuing Lender shall process such
Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance
with its customary procedures and shall, subject to Section 3.1
and Article V hereof, promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of the Application therefor and
all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may
be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall promptly furnish to the Borrower a copy of such
Letter of Credit and promptly notify each Lender of the issuance
and upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of such Lender's L/C
Participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for
the account of the Issuing Lender and the L/C Participants, a
letter of credit commission with respect to each Letter of Credit
in an amount equal to the product of (i) the face amount of such
Letter of Credit times (ii) an annual percentage equal to the
Applicable Margin with respect to LIBOR Rate Loans in effect on
the date of issuance of such Letter of Credit. Such commission
shall be payable quarterly in arrears on the last Business Day of
each calendar quarter and on the Maturity Date.
(b) In addition to the foregoing commission, the Borrower
shall pay the Issuing Lender an issuance fee of 0.125% per annum
on the face amount of each Letter of Credit, payable quarterly in
arrears on the last Business Day of each calendar quarter and on
the Maturity Date.
(c) The Borrower shall also pay all normal costs and
expenses of the Issuing Lender in connection with the issuance,
transfer or other administration of the Letters of Credit.
(d) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C
Participants all commissions received by the Administrative Agent
in accordance with their respective Commitment Percentages.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each
L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by
the Borrower in accordance with the terms of this Agreement, such
L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Commitment Percentage of
the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) Upon becoming aware of any amount required to be paid
by any L/C Participant to the Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any
payment made by the Issuing Lender under any Letter of Credit,
the Issuing Lender shall notify each L/C Participant of the
amount and due date of such required payment and such L/C
Participant shall pay to the Issuing Lender the amount specified
on the applicable due date. If any such amount is paid to the
Issuing Lender after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand, in
addition to such amount, the product of (i) such amount, times
(ii) the daily average Federal Funds Rate as determined by the
Administrative Agent during the period from and including the
date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. A
certificate of the Issuing Lender with respect to any amounts
owing under this Section 3.4(b) shall be conclusive in the
absence of manifest error. With respect to payment to the
Issuing Lender of the unreimbursed amounts described in this
Section 3.4(b), if the L/C Participants receive notice that any
such payment is due (A) prior to 1:00 p.m. (Charlotte time) on
any Business Day, such payment shall be due that Business Day,
and (B) after 1:00 p.m. (Charlotte time) on any Business Day,
such payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C
Participant its Commitment Percentage of such payment in
accordance with this Section 3.4, the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from
the Borrower or otherwise, or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, that in the
event that any such payment received by the Issuing Lender shall
be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower
. The Borrower agrees to reimburse the Issuing Lender on each
date on which the Issuing Lender notifies the Borrower of the
date and amount of a draft paid under any Letter of Credit for
the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender
in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein
in lawful money of the United States and in immediately available
funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Article III from the
date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full at the rate
which would be payable on any outstanding Base Rate Loans which
were then overdue. If the Borrower fails to timely reimburse the
Issuing Lender on the date the Borrower receives the notice
referred to in this Section 3.5, the Borrower shall be deemed to
have timely given a Notice of Borrowing hereunder to the
Administrative Agent requesting the Lenders to make a Base Rate
Loan on such date in an amount equal to the amount of such
drawing and, regardless of whether or not the conditions
precedent specified in Article V have been satisfied, the Lenders
shall make Base Rate Loans in such amount, the proceeds of which
shall be applied to reimburse the Issuing Lender for the amount
of the related drawing and costs and expenses.
SECTION 3.6 Obligations Absolute
. The Borrower's obligations under this Article III (including
without limitation the Reimbursement Obligation) shall be
absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment
which the Borrower may have or have had against the Issuing
Lender or any beneficiary of a Letter of Credit. The Borrower
also agrees with the Issuing Lender that the Issuing Lender shall
not be responsible for, and the Borrower's Reimbursement
Obligation under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact
prove to be invalid, fraudulent or forged, or any dispute between
or among the Borrower and any beneficiary of any Letter of Credit
or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of a Borrower against any
beneficiary of such Letter of Credit or any such transferee. The
Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by
the Issuing Lender's gross negligence or willful misconduct. The
Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Customs and, to the
extent not inconsistent therewith, the UCC shall be binding on
the Borrower and shall not result in any liability of the Issuing
Lender to the Borrower. The responsibility of the Issuing Lender
to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection
with such presentment are in conformity with such Letter of
Credit.
SECTION 3.7 Effect of Application
. To the extent that any provision of any Application related to
any Letter of Credit is inconsistent with the provisions of this
Article III, the provisions of this Article III shall apply.
SECTION 3.8 Letters of Credit Issued Pursuant to the
Existing Facility
The Borrower, the Administrative Agent and each Lender agree
that on the Closing Date each letter of credit issued by First
Union pursuant to the terms of the Existing Facility shall,
notwithstanding the provisions of Section 3.1(i) or Section 3.2,
be deemed to be a Letter of Credit issued under and pursuant to
and shall be subject to the terms of this Agreement as if
originally issued pursuant to the terms of this Agreement.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of
this Section 4.1, at the election of the Borrower, the aggregate
principal balance of (i) any Revolving Credit Loan shall bear
interest at (A) the Base Rate plus the Applicable Margin as set
forth in Section 4.1(c) or (B) the LIBOR Rate plus the Applicable
Margin as set forth in Section 4.1(c); provided that the LIBOR
Rate shall not be available until three (3) Business Days after
the Closing Date and (ii) any Competitive Bid Loan shall bear
interest at a Competitive Bid Rate. The Borrower shall select
the rate of interest and Interest Period, if any, applicable to
any Loan at the time a Notice of Revolving Credit Borrowing is
given pursuant to Section 2.2 or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2. Each
Loan or portion thereof bearing interest based on the Base Rate
shall be a "Base Rate Loan", each Loan or portion thereof bearing
interest based on the LIBOR Rate shall be a "LIBOR Rate Loan."
Any Loan or any portion thereof as to which the Borrower has not
duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan.
(b) Interest Periods.
(i) In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 2.2,
shall elect an interest period (each, a "LIBOR Interest Period")
to be applicable to such Loan, which LIBOR Interest Period shall
be a period of one (1), two (2), three (3), or six (6) months;
provided that:
(A) each LIBOR Interest Period shall commence on
the date of advance of or conversion to any LIBOR Rate Loan
and, in the case of immediately successive LIBOR Interest
Periods, each successive LIBOR Interest Period shall
commence on the date on which the next preceding LIBOR
Interest Period expires;
(B) if any LIBOR Interest Period would otherwise
expire on a day that is not a Business Day, such LIBOR
Interest Period shall expire on the next succeeding Business
Day; provided, that if any LIBOR Interest Period would
otherwise expire on a day that is not a Business Day but is
a day of the month after which no further Business Day
occurs in such month, such LIBOR Interest Period shall
expire on the next preceding Business Day;
(C) any LIBOR Interest Period that begins on the
last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such LIBOR Interest Period) shall end on
the last Business Day of the relevant calendar month at the
end of such LIBOR Interest Period; and
(D) no LIBOR Interest Period shall extend beyond
the Maturity Date.
(ii) In connection with each Competitive Bid Loan, the
Borrower, by giving notice at the times described in Section 2.3,
shall elect a Competitive Bid Interest Period applicable to such
Loan, which Competitive Bid Interest Period shall be a period of
such duration as accepted by the Borrower pursuant to Section
2.3(c); provided that:
(A) the Competitive Bid Interest Period for an
Absolute Rate Loan shall not be less than seven (7) days nor
more than one hundred eighty (180) days;
(B) the Competitive Bid Interest Period for any
LIBOR Competitive Bid Loan shall be a period of one (1), two
(2), three (3), or six (6) months;
(C) the Competitive Bid Interest Period shall
commence on the date of advance of any Competitive Bid Loan;
(D) if any Competitive Bid Interest Period would
otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business
Day; and
(E) no Competitive Bid Interest Period shall
expire on a date later than the first Business Day prior to
the Maturity Date.
(iii) There shall be no more than six (6) LIBOR
Interest Periods and Competitive Bid Interest Periods
(collectively) in effect at any time.
(c) Applicable Margin. The Applicable Margin provided for
in Section 4.1(a) with respect to the Loans (the "Applicable
Margin") shall (i) on the Closing Date equal the percentages set
forth in the certificate delivered pursuant to Section 5.2(d) and
(ii) for each fiscal quarter thereafter be determined by
reference to the Leverage Ratio as of the end of the fiscal
quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate as follows:
Applicable Margin
Level Leverage Ratio Per Annum
Base LIBOR Rate
Rate
1 Greater than 0.50 to 1.00 0.00% 0.600%
2 Greater than 0.40 to 1.00 0.00% 0.475%
but less than or equal to
0.50 to 1.00
3 Greater than 0.30 to 1.00 0.00% 0.350%
but less than or equal to
0.40 to 1.00
4 Less than or equal to 0.30 0.00% 0.275%
to 1.00
Adjustments, if any, in the Applicable Margin shall be made by
the Administrative Agent on the tenth (10th) Business Day after
receipt by the Administrative Agent of quarterly financial
statements for the Borrower and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Leverage Ratio of the Borrower and its Subsidiaries as of the
most recent fiscal quarter end. Subject to Section 4.1(d), in
the event the Borrower fails to deliver such financial statements
and certificate within the time required by Section 7.2 hereof,
the Applicable Margin shall be the highest Applicable Margin set
forth above until the delivery of such financial statements and
certificate.
(d) Default Rate. Subject to Section 11.3, at the
discretion of the Administrative Agent and Required Lenders, upon
the occurrence and during the continuance of an Event of Default,
(i) the Borrower shall no longer have the option to request LIBOR
Rate Loans or Competitive Bid Loans, (ii) all outstanding LIBOR
Rate Loans shall bear interest at a rate per annum two percent
(2%) in excess of the rate then applicable to LIBOR Rate Loans,
as applicable, until the end of the applicable Interest Period
and thereafter at a rate equal to two percent (2%) in excess of
the rate then applicable to Base Rate Loans, (iii) all
outstanding Competitive Bid Loans shall bear interest at a rate
per annum equal to two percent (2%) in excess of the rate then
applicable to such Competitive Bid Loan until the end of the
applicable Competitive Bid Interest Period and thereafter of a
rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans and (iv) all outstanding Base Rate
Loans shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate
Loans. Interest shall continue to accrue on the Notes after the
filing by or against the Borrower of any petition seeking any
relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each
Base Rate Loan shall be payable in arrears on the last Business
Day of each calendar quarter commencing June 30, 1999; and
interest on each LIBOR Rate Loan and Competitive Bid Loan shall
be payable on the last day of each LIBOR Interest Period or
Competitive Bid Interest Period, respectively, applicable
thereto, and if such LIBOR Interest Period or Competitive Bid
Interest Period, respectively, extends over three (3) months, at
the end of each three (3) month interval during such LIBOR
Interest Period or Competitive Bid Interest Period, respectively.
Interest on LIBOR Rate Loans, Competitive Bid Loans and all fees
payable hereunder shall be computed on the basis of a 360-day
year and assessed for the actual number of days elapsed and
interest on Base Rate Loans shall be computed on the basis of a
365/366-day year and assessed for the actual number of days
elapsed.
(f) Maximum Rate. In no contingency or event whatsoever
shall the aggregate of all amounts deemed interest hereunder or
under any of the Notes charged or collected pursuant to the terms
of this Agreement or pursuant to any of the Notes exceed the
highest rate permissible under any Applicable Law which a court
of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines
that the Lenders have charged or received interest hereunder in
excess of the highest applicable rate, the rate in effect
hereunder shall automatically be reduced to the maximum rate
permitted by Applicable Law and the Lenders shall at the
Administrative Agent's option (i) promptly refund to the Borrower
any interest received by Lenders in excess of the maximum lawful
rate or (ii) shall apply such excess to the principal balance of
the Obligations. It is the intent hereof that the Borrower not
pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that
which may be paid by the Borrower under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or
Continuation of Loans
. Provided that no Event of Default has occurred and is then
continuing, the Borrower shall have the option to convert at any
time following the third Business Day after the Closing Date all
or any portion of its outstanding Base Rate Loans in a principal
amount equal to $3,000,000 or any whole multiple of $1,000,000 in
excess thereof into one or more LIBOR Rate Loans and (b) upon the
expiration of any Interest Period, (i) convert all or any part of
its outstanding LIBOR Rate Loans in a principal amount equal to
$3,000,000 or a whole multiple of $1,000,000 in excess thereof
into Base Rate Loans or (ii) continue such LIBOR Rate Loans as
LIBOR Rate Loans. Whenever the Borrower desires to convert or
continue Loans as provided above, the Borrower shall give the
Administrative Agent irrevocable prior written notice in the form
attached as Exhibit F (a "Notice of Conversion/Continuation") not
later than 11:00 a.m. (Charlotte time) three (3) Business Days
before the day on which a proposed conversion or continuation of
such Loan is to be effective specifying (A) the Loans to be
converted or continued, and, in the case of any LIBOR Rate Loan
to be converted or continued, the last day of the Interest Period
therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal
amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued
LIBOR Rate Loan. The Administrative Agent shall promptly notify
the Lenders of such Notice of Conversion/Continuation.
SECTION 4.3 Fees.
(a) Facility Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a non-
refundable facility fee (the "Facility Fee") at a rate per annum
equal to the product of (i) 0.15% per annum times (ii) the
average daily Aggregate Commitment. The average daily Aggregate
Commitment shall be the quotient of (i) the sum of the amounts
each day during any such calendar quarter equal to the Aggregate
Commitment divided by (ii) the number of days in any such
calendar quarter or partial calendar quarter for which such
Aggregate Commitment was available. Such Facility Fee shall be
payable in arrears on the last Business Day of each calendar
quarter during the term of this Agreement commencing on June 30,
1999 and on the Maturity Date. Such Facility Fee shall be
distributed by the Administrative Agent to the Lenders on a pro
rata basis.
(b) Administrative Agent's and Other Fees. In order to
compensate the Administrative Agent for structuring and
syndicating the Loans and for its obligations hereunder, the
Borrower agrees to pay to the Administrative Agent, for its
account, the fees set forth in the separate fee letter agreement
executed by the Borrower and the Administrative Agent dated
January 20, 1999.
SECTION 4.4 Manner of Payment
. Each payment by the Borrower on account of the principal of or
interest on the Loans or of any fee, commission or other amounts
(subject to Article III, including the Reimbursement Obligation)
payable to the Lenders under this Agreement or any Note shall be
made not later than 1:00 p.m. (Charlotte time) on the date
specified for payment under this Agreement to the Administrative
Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below) pro rata in accordance
with their respective Commitment Percentages (except as specified
below), in Dollars, in immediately available funds and shall be
made without any set-off, counterclaim or deduction whatsoever.
Any payment received after such time but before 2:00 p.m.
(Charlotte time) on such day shall be deemed a payment on such
date for the purposes of Section 11.1, but for all other purposes
shall be deemed to have been made on the next succeeding Business
Day. Any payment received after 2:00 p.m. (Charlotte time) shall
be deemed to have been made on the next succeeding Business Day
for all purposes. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to
each Lender at its address for notices set forth herein its pro
rata share of such payment in accordance with such Lender's
Commitment Percentage (except as specified below) and shall wire
advice of the amount of such credit to each Lender. Each payment
to the Administrative Agent of the Issuing Lender's fees or L/C
Participants' commissions shall be made in like manner, but for
the account of the Issuing Lender or the L/C Participants, as the
case may be. Each payment to the Administrative Agent made in
connection with a Competitive Bid Loan shall be made in like
manner, but for the account of the applicable Lender or Lenders.
Each payment to the Administrative Agent of Administrative
Agent's fees or expenses shall be made for the account of the
Administrative Agent and any amount payable to any Lender under
Sections 4.8, 4.9, 4.10, 4.11 or 13.2 shall be paid to the
Administrative Agent for the account of the applicable Lender.
Subject to Section 4.1(b)(ii) if any payment under this Agreement
or any Note shall be specified to be made upon a day which is not
a Business Day, it shall be made on the next succeeding day which
is a Business Day and such extension of time shall in such case
be included in computing any interest if payable along with such
payment.
SECTION 4.5 Crediting of Payments and Proceeds
. In the event that the Borrower shall fail to pay any of the
Obligations when due and the Obligations have been accelerated
pursuant to Section 11.2, all payments received by the Lenders
upon the Notes and the other Obligations and all net proceeds
from the enforcement of the Obligations shall be applied first to
all expenses then due and payable by the Borrower hereunder, then
to all indemnity obligations then due and payable by the Borrower
hereunder, then to all Administrative Agent's and Issuing
Lender's fees then due and payable, then to all commitment and
other fees and commissions then due and payable, then to accrued
and unpaid interest on the Revolving Credit Notes, the
Reimbursement Obligation (pro rata in accordance with all such
amounts due), then to the principal amount of the Revolving
Credit Notes, the Reimbursement Obligations and any termination
payments due in respect of a Hedging Agreement with any
Lender(which such Hedging Agreement is permitted or required
hereunder (pro rata in accordance with all such amounts due) and
then to the cash collateral account described in Section 11.2(b)
hereof to the extent of any L/C Obligations then outstanding,
then to accrued and unpaid interest on the Competitive Bid Notes,
then to the principal amount outstanding under the Competitive
Bid Notes, in that order.
SECTION 4.6 Adjustments
. If any Lender (a "Benefited Lender") shall at any time receive
any payment of all or part of the Obligations owing to it, or
interest thereon, or if any Lender shall at any time receive any
collateral in respect to the Obligations owing to it (whether
voluntarily or involuntarily, by set-off or otherwise) in a
greater proportion (taking into account Section 4.4) than any
such payment to and collateral received by any other Lender, if
any, in respect of the Obligations owing to such other Lender, or
interest thereon, such Benefited Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's
Extensions of Credit, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, that if all or any portion of
such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Extensions of
Credit may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such portion.
SECTION 4.7 Nature of Obligations of Lenders
Regarding Extensions of Credit; Assumption by the Administrative
Agent.
The obligations of the Lenders under this Agreement to make
the Loans and issue or participate in Letters of Credit are
several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender
prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable
portion of the amount to be borrowed on such date (which notice
shall not release such Lender of its obligations hereunder), the
Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed
borrowing date in accordance with Section 2.2(b), and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
If such amount is made available to the Administrative Agent on a
date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to
the product of (a) the amount not made available by such Lender
in accordance with the terms hereof, times (b) the daily average
Federal Funds Rate during such period as determined by the
Administrative Agent, times (c) a fraction the numerator of which
is the number of days that elapse from and including such
borrowing date to the date on which such not made available by
such Lender in accordance with the terms hereof shall have become
immediately available to the Administrative Agent and the
denominator of which is 360. A certificate of the Administrative
Agent with respect to any amounts owing under this Section 4.7
shall be conclusive, absent manifest error. If such Lender's
Commitment Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three (3) Business
Days of such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the
Administrative Agent with interest thereon at the rate per annum
applicable to Base Rate Loans hereunder, on demand, from the
Borrower. The failure of any Lender to make available its
Commitment Percentage of any Loan requested by the Borrower shall
not relieve it or any other Lender of its obligation, hereunder
to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Commitment Percentage of
such Loan available on the borrowing date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If
with respect to any LIBOR Interest Period the Administrative
Agent or any Lender (after consultation with Administrative
Agent) shall determine that, by reason of circumstances affecting
the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via
Dow Jones Market Screen 3750 or offered to the Administrative
Agent or such Lender for such LIBOR Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the
Borrower. Thereafter, until the Administrative Agent notifies
the Borrower that such circumstances no longer exist, the
obligation of the Lenders to make LIBOR Rate Loans and the right
of the Borrower to convert any Loan to or continue any Loan as a
LIBOR Rate Loan shall be suspended, and the Borrower shall repay
in full (or cause to be repaid in full) the then outstanding
principal amount of each such LIBOR Rate Loans together with
accrued interest thereon, on the last day of the then current
LIBOR Interest Period applicable to such LIBOR Rate Loan or
convert the then outstanding principal amount of each such LIBOR
Rate Loan to a Base Rate Loan as of the last day of such LIBOR
Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the
date hereof, the introduction of, or any change in, any
Applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any of
their respective Lending Offices) with any request or directive
(whether or not having the force of law) of any such Authority,
central bank or comparable agency, shall make it unlawful or
impossible for any of the Lenders (or any of their respective
Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give
notice thereof to the Administrative Agent and the Administrative
Agent shall promptly give notice to the Borrower and the other
Lenders. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right
of the Borrower to convert any Loan or continue any Loan as a
LIBOR Rate Loan shall be suspended and thereafter the Borrower
may select only Base Rate Loans hereunder, and (ii) if any of the
Lenders may not lawfully continue to maintain a LIBOR Rate Loan
to the end of the then current LIBOR Interest Period applicable
thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan
shall immediately be converted to a Base Rate Loan for the
remainder of such LIBOR Interest Period.
(c) Increased Costs. If, after the date hereof, the
introduction of, or any change in, any Applicable Law, or in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any of
the Lenders (or any of their respective Lending Offices) with any
request or directive (whether or not having the force of law) of
such Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of
their respective Lending Offices) to any tax, duty or other
charge with respect to any Note, Letter of Credit or Application
or shall change the basis of taxation of payments to any of the
Lenders (or any of their respective Lending Offices) of the
principal of or interest on any Note, Letter of Credit or
Application or any other amounts due under this Agreement in
respect thereof (except for changes in the rate of tax on the
overall net income of any of the Lenders or any of their
respective Lending Offices imposed by the jurisdiction in which
such Lender is organized or is or should be qualified to do
business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit,
insurance or capital or similar requirement against assets of,
deposits with or for the account of, or credit extended by any of
the Lenders (or any of their respective Lending Offices) or shall
impose on any of the Lenders (or any of their respective Lending
Offices) or the foreign exchange and interbank markets any other
condition affecting any Note; and the result of any of the
foregoing is to increase the costs to any of the Lenders of
maintaining any LIBOR Rate Loan, Competitive Bid Loan or issuing
or participating in Letters of Credit or to reduce the yield or
amount of any sum received or receivable by any of the Lenders
under this Agreement or under the Notes in respect of a LIBOR
Rate Loan, Competitive Bid Loan or Letter of Credit or
Application, then such Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify the Borrower of such fact and demand compensation therefor
and, within fifteen (15) days after such notice by the
Administrative Agent, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or
Lenders for such increased cost or reduction. The Administrative
Agent will promptly notify the Borrower of any event of which it
has knowledge which will entitle such Lender to compensation
pursuant to this Section 4.8(c); provided, that the
Administrative Agent shall incur no liability whatsoever to the
Lenders or the Borrower in the event it fails to do so. The
amount of such compensation shall be determined, in the
applicable Lender's sole discretion, based upon the assumption
that such Lender funded its Commitment Percentage of the LIBOR
Rate Loans or Competitive Bid Loan, as applicable in the London
interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis
for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be
correct save for manifest error. Such Lender may demand
reimbursement for such increased costs or reduced amount only for
the 180 day period immediately preceding the date of such written
notice, and the Borrower shall have liability only for such 180
day period.
SECTION 4.9 Indemnity.
The Borrower hereby indemnifies each of the Lenders against
any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Loan (a) as a
consequence of any failure by the Borrower to make any payment
when due of any amount due hereunder in connection with a LIBOR
Rate Loan or a Competitive Bid Loan, (b) due to any failure of
the Borrower to borrow on a date specified therefor in a Notice
of Revolving Credit Borrowing or Notice of
Continuation/Conversion or Competitive Bid Request or (c) due to
any payment, prepayment or conversion of any LIBOR Rate Loan or
Competitive Bid Loan on a date other than the last day of the
LIBOR Interest Period or Competitive Bid Interest Period
therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based
upon the assumption that such Lender funded its Commitment
Percentage of the LIBOR Rate Loans or its portion of the
Competitive Bid Loan, as applicable, in the London interbank
market and using any reasonable attribution or averaging methods
which such Lender deems appropriate and practical. A certificate
of such Lender setting forth the basis for determining such
amount or amounts necessary to compensate such Lender shall be
forwarded to the Borrower through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest
error.
SECTION 4.10 Capital Requirements
. If either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law or (b) compliance with any
guideline or request from any central bank or comparable agency
or other Governmental Authority (whether or not having the force
of law), has or would have the effect of reducing the rate of
return on the capital of, or has affected or would affect the
amount of capital required to be maintained by, any Lender or any
corporation controlling such Lender as a consequence of, or with
reference to the Commitments and other commitments of this type,
below the rate which the Lender or such other corporation could
have achieved but for such introduction, change or compliance,
then within five (5) Business Days after written demand by any
such Lender, the Borrower shall pay to such Lender from time to
time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction.
A certificate as to such amounts submitted to the Borrower and
the Administrative Agent by such Lender, shall, in the absence of
manifest error, be presumed to be correct and binding for all
purposes.
SECTION 4.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the
Borrower hereunder or under the Notes or the Letters of Credit
shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges
or withholding, and all liabilities with respect thereto
excluding, (i) in the case of each Lender and the Administrative
Agent, income and franchise taxes imposed by the jurisdiction
under the laws of which such Lender or the Administrative Agent
(as the case may be) is organized or is or should be qualified to
do business or any political subdivision thereof and (ii) in the
case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note or Letter of Credit to any
Lender or the Administrative Agent, (A) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 4.11) such Lender or the
Administrative Agent (as the case may be) receives an amount
equal to the amount such party would have received had no such
deductions been made, (B) the Borrower shall make such
deductions, (C) the Borrower shall pay the full amount deducted
to the relevant taxing authority or other authority in accordance
with applicable law, and (D) the Borrower shall deliver to the
Administrative Agent evidence of such payment to the relevant
taxing authority or other authority in the manner provided in
Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall
pay any present or future stamp, registration, recordation or
documentary taxes or any other similar fees or charges or excise
or property taxes, levies of the United States or any state or
political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Loans, the Letters of Credit, the
other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other
Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender
and the Administrative Agent for the full amount of Taxes and
Other Taxes (including, without limitation, any Taxes and Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 4.11) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. Such indemnification shall be made within thirty (30)
days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the
date of any payment of Taxes or Other Taxes, the Borrower shall
furnish to the Administrative Agent, at its address referred to
in Section 13.1, the original or a certified copy of a receipt
evidencing payment thereof or other evidence of payment
satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the
laws of a jurisdiction other than the United States or any state
thereof shall deliver to the Borrower, with a copy to the
Administrative Agent, on the Closing Date or concurrently with
the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms
4224 or Forms 1001, as applicable (or successor forms) properly
completed and certifying in each case that such Lender is
entitled to a complete exemption from withholding or deduction
for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption
from United States backup withholding taxes. Each such Lender
further agrees to deliver to the Borrower, with a copy to the
Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or manner of certification, as the
case may be, on or before the date that any such form expires or
becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Borrower, certifying in the case of a Form 1001 or 4224 that such
Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be
required which renders such forms inapplicable or the exemption
to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled
to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-8 or W-
9, establishing an exemption from United States backup
withholding tax.
(f) Survival. Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 4.11 shall
survive the payment in full of the Obligations and the
termination of the Commitments.
(g) Tax Credits. Each Lender represents and warrants that
each such form supplied by it to the Administrative Agent and, as
the case may be, the Borrower pursuant to this Section 4.11, and
not superseded by another form supplied by it, is or will be, as
the case may be, complete and accurate. Each Lender further
agrees that the Borrower shall not be required to indemnify such
Lender or pay any additional amounts to such Lender in respect of
any United States Federal withholding tax existing on the date
such Lender became a Lender hereunder, or with respect to
payments to or for the account of a new lending office for such
Lender, existing on the date such Lender designated such new
lending office with respect to such payments or the related
Loans.
If the Borrower pays any additional amount under this
Section 4.11 (a "Tax Payment") and any Lender or Affiliate
thereof effectively obtains a refund or credit against tax by
reason of the Tax Payment (a "Tax Credit") and such Lender of
such Affiliate identifies the Tax Credit as being attributable to
the Tax Payment, then such Lender, after actual receipt of such
Tax Credit or actual receipt of the benefits thereof, shall
promptly reimburse the Borrower for such amount as such Lender
shall reasonably determine to be the proportion of the Tax Credit
as will leave such Lender (after such reimbursement) in no better
or worse position than it would have been if the Tax Payment had
not been required and such Lender agrees to reasonably cooperate
with the Borrower if the Borrower elects to pursue a refund;
provided, however, that no Lender shall be required to make any
such reimbursement or cooperate with the Borrower if it
reasonably, as determined in such Lender's sole discretion,
believes that the making of such reimbursement or cooperating
with the Borrower would cause it to lose the benefit of the Tax
Credit or would adversely affect in any other respect its tax
position. Subject to the terms hereof, any claim by a Lender for
a Tax Credit shall be made in a manner, order and amount as such
Lender determines in its sole discretion. Except to the extent
necessary for the Borrower to evaluate any Tax Credit, no Lender
shall be obligated to disclose information regarding its tax
affairs or computations to the Borrower, it being understood and
agreed that in no event shall any Lender be required to disclose
information regarding its tax position that it deems to be
confidential (other than with respect to the Tax Credit).
SECTION 4.12 Mitigation of Obligations; Replacement of
Lenders.
(a) Designation of a Different Lending Office. If any
Lender requests compensation, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to Section 4.8,
Section 4.10, or Section 4.11, then such Lender shall use
reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates; if, in the judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 4.8, Section 4.10, or Section 4.11, as the
case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby agree to
pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 4.8, Section 4.10, or
Section 4.11, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in
Section 13.10 except for Section 13.10(b)(v)), all its interests,
rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another a
Lender, if a Lender accepts such assignment). A Lender shall not
be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling such Borrower to require such assignment
and delegation cease to apply.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 Closing
. The closing shall take place at the offices of Kennedy,
Covington, Lobdell & Hickman, L.L.P. at 10:00 a.m. on March 5,
1999, or on such other date as the parties hereto shall mutually
agree.
SECTION 5.2 Conditions to Closing and Initial
Extensions of Credit
. The obligation of the Lenders to close this Agreement and to
make the initial Loan or issue the initial Letter of Credit is
subject to the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving
Credit Notes, the Competitive Bid Notes and the Intercompany
Notes shall have been duly authorized, executed and delivered to
the Administrative Agent by the parties thereto, shall be in full
force and effect and no default shall exist thereunder, and the
Borrower shall have delivered original counterparts thereof to
the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The Administrative
Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative
Agent, to the effect that all representations and warranties of
the Borrower contained in this Agreement and the other Loan
Documents are true, correct and complete; that the Borrower is
not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect
to the transactions contemplated by this Agreement, no Default or
Event of Default has occurred and is continuing; and that the
Borrower has satisfied each of the closing conditions.
(ii) Certificate of Secretary of the Borrower.
The Administrative Agent shall have received a certificate of the
secretary or assistant secretary of the Borrower certifying as to
the incumbency and genuineness of the signature of each officer
of the Borrower executing Loan Documents to which it is a party
and certifying that attached thereto is a true, correct and
complete copy of (A) the charter of the Borrower and all
amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of
incorporation, (B) the bylaws of the Borrower as in effect on the
date of such certifications, (C) resolutions duly adopted by the
Board of Directors of the Borrower authorizing the borrowings
contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to
which it is a party, and (D) each certificate required to be
delivered pursuant to Section 5.2(b)(iii).
(iii) Certificates of Good Standing. The
Administrative Agent shall have received certificates as of a
recent date of the good standing of the Borrower under the laws
of its jurisdiction of organization and each other jurisdiction
where the Borrower is qualified to do business and, if separately
available, a certificate of the relevant taxing authorities of
such jurisdictions certifying that such Person has filed required
tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative
Agent shall have received favorable opinions of counsel to the
Borrower addressed to the Administrative Agent and the Lenders
with respect to the Borrower, the Loan Documents and such other
matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall
have received copies of the United States Internal Revenue
Service forms required by Section 4.11(e) hereof.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The
Borrower shall have obtained all necessary approvals,
authorizations and consents of any Person and of all Governmental
Authorities and courts having jurisdiction with respect to the
transactions contemplated by this Agreement and the other Loan
Documents.
(ii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been
instituted, threatened or proposed before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or
arises out of this Agreement or the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby,
or which, in the Administrative Agent's sole discretion, would
make it inadvisable to consummate the transactions contemplated
by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Administrative
Agent shall have received the most recent audited Consolidated
financial statements of the Borrower and its Subsidiaries, all in
form and substance satisfactory to the Administrative Agent.
(ii) Financial Condition Certificate. The
Borrower shall have delivered to the Administrative Agent a
certificate, in form and substance satisfactory to the
Administrative Agent, and certified as accurate by a Responsible
Officer, that (A) the Borrower and, on a combined basis, its
Subsidiaries are Solvent, (B) the Borrower's payables are current
and not past due, except in the ordinary course of business, (C)
attached thereto is a pro forma balance sheet of the Borrower and
its Subsidiaries setting forth on a pro forma basis the financial
condition of the Borrower and its Subsidiaries on a Consolidated
basis as of that date, reflecting a pro forma basis the effect of
the transactions contemplated herein, including all fees and
expenses in connection therewith, and evidencing compliance on a
pro forma basis with the covenants contained in Articles IX and X
hereof, (D) the financial projections (which projections make
certain assumptions regarding generic acquisitions by the
Borrower or its Subsidiaries) previously delivered to the
Administrative Agent represent the good faith opinions of the
Borrower and senior management thereof as to the projected
results contained therein and (E) attached thereto is a
calculation of the Applicable Margin pursuant to Section 4.1(c).
(iii) Payment at Closing; Fee Letters. The
Borrower shall have paid the fees set forth or referenced in
Section 4.3 and any other accrued and unpaid fees or commissions
due hereunder (including, without limitation, legal fees and
expenses) to the Administrative Agent and Lenders, and to any
other Person such amount as may be due thereto in connection with
the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery,
recording, filing and registration of any of the Loan Documents.
The Administrative Agent shall have received duly authorized and
executed copies of the fee letter agreement referred to in
Section 4.3(c).
(e) Miscellaneous.
(i) Notice of Borrowing. The Administrative
Agent shall have received a Notice of Borrowing from the Borrower
in accordance with Section 2.2(a), and a Notice of Account
Designation specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be
disbursed.
(ii) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in
connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to the Lenders. The
Lenders shall have received copies of all other instruments and
other evidence as the Lender may reasonably request, in form and
substance satisfactory to the Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all
actions in connection therewith.
(iii) Existing Facility. The Existing Facility
shall be repaid and terminated and all collateral security
therefor shall be released, and the Administrative Agent shall
have received a pay-off letter in form and substance satisfactory
to it evidencing such repayment, termination, reconveyance and
release.
(iv) Due Diligence and Other Documents. The
Borrower shall have delivered to the Administrative Agent such
other documents, certificates and opinions as the Administrative
Agent may reasonably request.
SECTION 5.3 Conditions to All Extensions of Credit
. The obligations of the Lenders to make any Extensions of
Credit is subject to the satisfaction of the following conditions
precedent on the relevant borrowing or issue date, as applicable:
(a) Continuation of Representations and Warranties.
The representations and warranties contained in Article VI shall
be true and correct on and as of such borrowing or issuance date
with the same effect as if made on and as of such date, except
for any representation and warranty made as of an earlier date,
which representation and warranty shall remain true and correct
as of such earlier date.
(b) No Existing Default. No Default or Event of
Default shall have occurred and be continuing hereunder (i) on
the borrowing date with respect to such Loan or after giving
effect to the Loans to be made on such date or (ii) or the issue
date with respect to such Letter of Credit or after giving affect
to such Letters of Credit on such date.
(c) Officer's Compliance Certificate; Additional
Documents. The Administrative Agent shall have received the
current Officer's Compliance Certificate and each additional
document, instrument, legal opinion or other item of information
reasonably requested by it.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties
. To induce the Administrative Agent and Lenders to enter into
this Agreement and to induce the Lenders to make Extensions of
Credit, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the
Borrower and its Subsidiaries is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation or formation, has the power and authority to own
its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business
requires such qualification and authorization, except where the
failure to be so qualified or authorized would not have a
Material Adverse Effect on the Borrower and its Subsidiaries.
The jurisdictions in which the Borrower and its Subsidiaries are
organized and qualified to do business as of the Closing Date are
described on Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the
Closing Date is listed on Schedule 6.1(b). As of the Closing
Date, the capitalization of the Borrower and its Subsidiaries
consists of the number of shares, authorized, issued and
outstanding, of such classes and series, with or without par
value, described on Schedule 6.1(b). All outstanding shares have
been duly authorized and validly issued and are fully paid and
nonassessable. The shareholders of the Subsidiaries of the
Borrower and the number of shares owned by each as of the Closing
Date are described on Schedule 6.1(b). As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible into, exchangeable for
or otherwise provide for or permit the issuance of capital stock
of the Borrower or its Subsidiaries, except as described on
Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and
Borrowing. Each of the Borrower and its Subsidiaries has the
right, power and authority and has taken all necessary corporate
and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their
respective terms. This Agreement and each of the other Loan
Documents have been duly executed and delivered by the duly
authorized officers of the Borrower and each of its Subsidiaries
party thereto, and each such document constitutes the legal,
valid and binding obligation of the Borrower or its Subsidiary
party thereto, enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor
relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability
of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing
with Laws, Etc. The execution, delivery and performance by the
Borrower and its Subsidiaries of the Loan Documents to which each
such Person is a party, in accordance with their respective
terms, the borrowings hereunder and the transactions contemplated
hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or
constitute a default under the charter, bylaws or other
organizational documents of the Borrower or any of its
Subsidiaries, (iii) conflict with, result in a breach of or
constitute a default under any indenture, agreement or other
instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to
such Person, except to the extent a breach or default under such
indenture, agreement or instrument would not have a Material
Adverse Effect, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens
arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of
the Borrower and its Subsidiaries (i) has all Governmental
Approvals required by any Applicable Law for it to conduct its
business, each of which is in full force and effect, is final and
not subject to review on appeal and is not the subject of any
pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, except where the failure to have
such Governmental Approvals would not reasonably be expected to
have a Material Adverse Effect, and (ii) is in compliance with
each Governmental Approval applicable to it and in compliance
with all other Applicable Laws relating to it or any of its
respective properties, except where the failure to so comply
would not reasonably be expected to have a Material Adverse
Effect.
(f) Tax Returns and Payments. Each of the Borrower and its
Subsidiaries has duly filed or caused to be filed all federal,
state, local and other tax returns required by Applicable Law to
be filed, and has paid, or made adequate provision for the
payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable.
No Governmental Authority has asserted any Lien or other claim
against the Borrower or Subsidiary thereof with respect to unpaid
taxes which has not been discharged or resolved. The charges,
accruals and reserves on the books of the Borrower and any of its
Subsidiaries in respect of federal, state, local and other taxes
for all Fiscal Years and portions thereof since the organization
of the Borrower and any of its Subsidiaries are in the judgment
of the Borrower adequate, and the Borrower does not anticipate
any additional taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the Borrower
and its Subsidiaries owns or possesses rights to use all
franchises, licenses, copyrights, copyright applications,
patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are
required to conduct its business. No event has occurred which
permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such rights, and neither the
Borrower nor any Subsidiary thereof is liable to any Person for
infringement under Applicable Law with respect to any such rights
as a result of its business operations.
(h) Environmental Matters.
(i) To the knowledge of the Borrower, the
properties owned, leased or operated by the Borrower and its
Subsidiaries now or in the past do not contain, and to their
knowledge have not previously contained, any Hazardous Materials
in amounts or concentrations which (A) constitute or constituted
a violation of applicable Environmental Laws or (B) could
reasonably be expected to give rise to liability under applicable
Environmental Laws;
(ii) The Borrower, each Subsidiary and such
properties and all operations conducted in connection therewith
are in compliance, and have been in compliance, with all
applicable Environmental Laws, except where the failure to be in
compliance would not reasonably be expected to have a Material
Adverse Effect, and, to the knowledge of the Borrower, there is
no contamination at, under or about such properties or such
operations which could interfere with the continued operation of
such properties or impair the fair saleable value thereof;
(iii) Neither the Borrower nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with
Environmental Laws, nor does the Borrower or any Subsidiary
thereof have knowledge or reason to believe that any such notice
will be received or is being threatened;
(iv) To the knowledge of the Borrower, Hazardous
Materials have not been transported or disposed of to or from the
properties owned, leased or operated by the Borrower and its
Subsidiaries in violation of, or in a manner or to a location
which could give rise to liability under, Environmental Laws, nor
have any Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of such properties in violation
of, or in a manner that could give rise to liability under, any
applicable Environmental Laws;
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any Subsidiary thereof is or will be named as a
party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to Borrower, any Subsidiary or
such properties or operations; and
(vi) To the Borrower's knowledge, there has been
no release, or threat of release, of Hazardous Materials at or
from properties owned, leased or operated by the Borrower or any
Subsidiary, now or in the past, in violation of or in amounts or
in a manner that could give rise to liability under Environmental
Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower
nor any ERISA Affiliate maintains or contributes to, or has any
obligation under, any Employee Benefit Plans other than those
identified on Schedule 6.1(i);
(ii) the Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect
to all Employee Benefit Plans except for any required amendments
for which the remedial amendment period as defined in Section
401(b) of the Code has not yet expired, except where the failure
to so comply would not reasonably be expected to have a Material
Adverse Effect. Each Employee Benefit Plan that is intended to
be qualified under Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified, and each
trust related to such plan has been determined to be exempt under
Section 501(a) of the Code. No liability has been incurred by
the Borrower or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan
or any Multiemployer Plan, except where such liability would not
reasonably be expected to have a Material Adverse Effect;
(iii) No Pension Plan has been terminated, nor has
any accumulated funding deficiency (as defined in Section 412 of
the Code) been incurred (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from
the Internal Revenue Service been received or requested with
respect to any Pension Plan, nor has the Borrower or any ERISA
Affiliate failed to make any contributions or to pay any amounts
due and owing as required by Section 412 of the Code, Section 302
of ERISA or the terms of any Pension Plan prior to the due dates
of such contributions under Section 412 of the Code or Section
302 of ERISA, nor has there been any event requiring any
disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with
respect to any Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate
has: (A) engaged in a nonexempt prohibited transaction described
in Section 406 of the ERISA or Section 4975 of the Code, which
would result in material liability under ERISA or the Code, (B)
incurred any liability to the PBGC which remains outstanding
other than the payment of premiums and there are no premium
payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to
make a required installment or other required payment under
Section 412 of the Code;
(v) No Termination Event has occurred or is
reasonably expected to occur; and
(vi) No proceeding, claim (except for ordinary
claims for benefits under an Employee Benefit Plan), lawsuit
and/or investigation is existing or, to the best knowledge of the
Borrower after due inquiry, threatened concerning or involving
any (A) employee welfare benefit plan (as defined in Section 3(1)
of ERISA) currently maintained or contributed to by the Borrower
or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer
Plan.
(j) Margin Stock. Neither the Borrower nor any Subsidiary
thereof is engaged principally or as one of its activities in the
business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" (as each such term is defined or
used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans or
Letters of Credit will be used for purchasing or carrying margin
stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of such
Board of Governors.
(k) Government Regulation. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company
"controlled" by an "investment company" (as each such term is
defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary thereof is,
or after giving effect to any Extension of Credit will be,
subject to regulation under the Public Utility Holding Company
Act of 1935 or the Interstate Commerce Act, each as amended, or
any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(l) sets forth a
complete and accurate list of all Material Contracts of the
Borrower and its Subsidiaries in effect as of the Closing Date
not listed on any other Schedule hereto; other than as set forth
in Schedule 6.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions
contemplated by the Loan Documents will be, in full force and
effect in accordance with the terms thereof. The Borrower and
its Subsidiaries have delivered to the Administrative Agent a
true and complete copy of each Material Contract required to be
listed on Schedule 6.1(l) or any other Schedule hereto.
(m) Employee Relations. Each of the Borrower and its
Subsidiaries has a stable work force in place and is not, as of
the Closing Date, party to any collective bargaining agreement
nor has any labor union been recognized as the representative of
its employees except as set forth on Schedule 6.1(m). The
Borrower knows of no pending, threatened or contemplated strikes,
work stoppage or other collective labor disputes involving its
employees or those of its Subsidiaries.
(n) Burdensome Provisions. Neither the Borrower nor any
Subsidiary thereof is a party to any indenture, agreement, lease
or other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or Applicable Law which is so
unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. The
Borrower and its Subsidiaries do not presently anticipate that
future expenditures needed to meet the provisions of any
statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse
Effect.
(o) Financial Statements. The (i) Consolidated balance
sheets of the Borrower and its Subsidiaries as of December 28,
1997, and the related statements of income and retained earnings
and cash flows for the Fiscal Years then ended and (ii) unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries
as of January 2, 1999, and related unaudited interim statements
of revenue and retained earnings, copies of which have been
furnished to the Administrative Agent and each Lender, are
complete and correct and fairly present, in all material
respects, the assets, liabilities and financial position of the
Borrower and its Subsidiaries as at such dates, and the results
of the operations and changes of financial position for the
periods then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP. The Borrower and its Subsidiaries have no
Debt, obligation or other unusual forward or long-term commitment
which is not fairly reflected in the foregoing financial
statements or in the notes thereto.
(p) No Material Adverse Change. Since January 2, 1999,
there has been no material adverse change in the properties,
business, operations, prospects, or condition (financial or
otherwise) of the Borrower and its Subsidiaries and no event has
occurred or condition arisen that could reasonably be expected to
have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving
effect to each Extension of Credit made hereunder, the Borrower
and, on a combined basis, its Subsidiaries will be Solvent.
(r) Titles to Properties. Each of the Borrower and its
Subsidiaries has such title to the real property owned by it as
is necessary or desirable to the conduct of its business and
valid and legal title to all of its personal property and assets,
including, but not limited to, those reflected on the balance
sheets of the Borrower and its Subsidiaries delivered pursuant to
Section 6.1(o), except those which have been disposed of by the
Borrower or its Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as
otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the
Borrower or any Subsidiary thereof is subject to any Lien, except
Liens permitted pursuant to Section 10.3. No financing statement
under the Uniform Commercial Code of any state which names the
Borrower or any Subsidiary thereof or any of their respective
trade names or divisions as debtor and which has not been
terminated, has been filed in any state or other jurisdiction and
neither the Borrower nor any Subsidiary thereof has signed any
such financing statement or any security agreement authorizing
any secured party thereunder to file any such financing
statement, except to perfect those Liens permitted by Section
10.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 6.1(t) is a
complete and correct listing of all Debt and Guaranty Obligations
of the Borrower and its Subsidiaries as of the Closing Date in
excess of $1,000,000 (per occurrence). The Borrower and its
Subsidiaries have performed and are in compliance with all of the
terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time
or both would constitute such a default or event of default on
the part of the Borrower or its Subsidiaries exists with respect
to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing
Date and set forth on Schedule 6.1(u), there are no actions,
suits or proceedings pending nor, to the knowledge of the
Borrower, threatened against or in any other way relating
adversely to or affecting the Borrower or any Subsidiary thereof
or any of their respective properties in any court or before any
arbitrator of any kind or before or by any Governmental
Authority, which would reasonably be expected to have a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is
continuing which constitutes a Default or an Event of Default, or
which constitutes, or which with the passage of time or giving of
notice or both would constitute, a default or event of default by
the Borrower or any Subsidiary thereof under any Material
Contract or judgment, decree or order to which the Borrower or
its Subsidiaries is a party or by which the Borrower or its
Subsidiaries or any of their respective properties may be bound
or which would require the Borrower or its Subsidiaries to make
any payment thereunder prior to the scheduled maturity date
therefor.
(w) Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on
behalf of the Borrower or any Subsidiary thereof and furnished to
the Lenders were, at the time the same were so furnished, taken
as a whole, complete and correct in all respects to the extent
necessary to give the recipient a true and accurate knowledge of
the subject matter. No document furnished or written statement
made to the Administrative Agent or the Lenders by the Borrower
or any Subsidiary thereof in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact
material to the creditworthiness of the Borrower or its
Subsidiaries or omits or will omit to state a fact necessary in
order to make the statements contained therein not misleading.
The Borrower is not aware of any facts which it has not disclosed
in writing to the Administrative Agent having a Material Adverse
Effect, or insofar as the Borrower can now foresee, could
reasonably be expected to have a Material Adverse Effect.
(x) Year 2000. Borrower is using its reasonable best
efforts to complete any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the
Borrower's computer systems and (ii) equipment containing
embedded microchips (including systems and equipment supplied by
others or with which Borrower's systems interface) and to
complete the testing of all such systems and equipment, as so
reprogrammed, by December 31, 1999. The cost to the Borrower of
such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower (including, without
limitation, reprogramming errors and the failure of Borrower's
systems or requirements) is not anticipated to result in a
Default or a Material Adverse Effect.
SECTION 6.2 Survival of Representations and
Warranties, Etc
. All representations and warranties set forth in this Article
VI and all representations and warranties contained in any
certificate, or any of the Loan Documents (including but not
limited to any such representation or warranty made in or in
connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All
representations and warranties made under this Agreement shall be
made or deemed to be made at and as of the Closing Date, shall
survive the Closing Date and shall not be waived by the execution
and delivery of this Agreement, any investigation made by or on
behalf of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally paid and
satisfied in full and the Commitments terminated, unless consent
has been obtained in the manner set forth in Section 13.11
hereof, the Borrower will furnish or cause to be furnished to the
Administrative Agent and to the Lenders at their respective
addresses as set forth on Schedule 1, or such other office as may
be designated by the Administrative Agent and Lenders from time
to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable
and in any event within forty-five (45) days after the end of the
first three fiscal quarters, an unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries as of the close of
such fiscal quarter and unaudited Consolidated statements of
income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting
forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by the Borrower in accordance
with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change
in the application of accounting principles and practices during
the period, and certified by the chief financial officer of the
Borrower to present fairly in all material respects the financial
condition of the Borrower and its Subsidiaries as of their
respective dates and the results of operations of the Borrower
and its Subsidiaries for the respective periods then ended,
subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable
and in any event within ninety (90) days after the end of each
Fiscal Year, an audited Consolidated balance sheet of the
Borrower and its Subsidiaries as of the close of such Fiscal Year
and audited Consolidated statements of income, retained earnings
and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding
Fiscal Year and prepared by an independent certified public
accounting firm acceptable to the Administrative Agent in
accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operation of
any change in the application of accounting principles and
practices during the year, and accompanied by a report thereon by
such certified public accountants that is not qualified with
respect to scope limitations imposed by the Borrower or any of
its Subsidiaries or with respect to accounting principles
followed by the Borrower or any of its Subsidiaries not in
accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As
soon as practicable and in any event within forty-five (45) days
after the beginning of each Fiscal Year, a business plan of the
Borrower and its Subsidiaries for the ensuing four (4) fiscal
quarters, such plan to be prepared in accordance with GAAP and to
include, on a quarterly basis, the following: a quarterly
operating and capital budget, a projected income statement,
statement of cash flows and balance sheet and a report containing
management's discussion and analysis of such projections.
SECTION 7.2 Officer's Compliance Certificate
. At each time financial statements are delivered pursuant to
Sections 7.1 (a) or (b) and at such other times as the
Administrative Agent shall reasonably request, a certificate of
the chief financial officer or the treasurer of the Borrower in
the form of Exhibit G attached hereto (an "Officer's Compliance
Certificate").
SECTION 7.3 Accountants' Certificate
. At each time financial statements are delivered pursuant to
Section 7.1(b), a certificate of the independent public
accountants certifying such financial statements addressed to the
Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for
the certification of such financial statements, they obtained no
knowledge of any Default or Event of Default or, if such is not
the case, specifying such Default or Event of Default and its
nature and period of existence; and
(b) including the calculations prepared by such accountants
required to establish whether or not the Borrower and its
Subsidiaries are in compliance with the financial covenants set
forth in Article IX hereof as at the end of each respective
period.
SECTION 7.4 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports,
if any, submitted to the Borrower or its Board of Directors by
its independent public accountants in connection with their
auditing function, including, without limitation, any management
report and any management responses thereto ; and
(b) Such other information regarding the operations,
business affairs and financial condition of the Borrower or any
of its Subsidiaries as the Administrative Agent or any Lender may
reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters
. Prompt (but in no event later than ten (10) days after an
officer of the Borrower obtains knowledge thereof) telephonic and
written notice of:
(a) the commencement of all proceedings and investigations
by or before any Governmental Authority and all actions and
proceedings in any court or before any arbitrator against or
involving the Borrower or any Subsidiary thereof or any of their
respective properties, assets or businesses, except where such
preceding or investigation would not reasonably be expected to
have a Material Adverse Effect;
(b) any notice of any violation received by the Borrower or
any Subsidiary thereof from any Governmental Authority including,
without limitation, any notice of violation of Environmental Laws
which in any such case could reasonably be expected to have a
Material Adverse Effect;
(c) any labor controversy that has resulted in, or
threatens to result in, a strike or other work action against the
Borrower or any Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding
$500,000 that may be assessed against or threatened against the
Borrower or any Subsidiary thereof;
(e) any Default or Event of Default, or any event which
constitutes or which with the passage of time or giving of notice
or both would constitute a default or event of default under any
Material Contract to which the Borrower or any of its
Subsidiaries is a party or by which the Borrower or any
Subsidiary thereof or any of their respective properties may be
bound;
(f) (i) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code (along
with a copy thereof), (ii) all notices received by the Borrower
or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by the Borrower or any
ERISA Affiliate from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to Section
4202 of ERISA and (iv) the Borrower obtaining knowledge or reason
to know that the Borrower or any ERISA Affiliate has filed or
intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section
4041(c) of ERISA; and
(g) any event which makes any of the representations set
forth in Section 6.1 inaccurate in any material respect.
SECTION 7.6 Accuracy of Information
. All written information, reports, statements and other papers
and data furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender (other than financial
forecasts) whether pursuant to this Article VII or any other
provision of this Agreement, shall be, at the time the same is so
furnished, complete and correct in all material respects to the
extent necessary to give the Administrative Agent or any Lender
complete, true and accurate knowledge of the subject matter based
on the Borrower's knowledge thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in
full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, the
Borrower will, and will cause each of its Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and
Related Matters
. Except as permitted by Section 10.5, preserve and maintain its
separate corporate existence and all rights, franchises, licenses
and privileges necessary to the conduct of its business, and
qualify and remain qualified as a foreign corporation and
authorized to do business in each jurisdiction in which the
failure to so qualify would have a Material Adverse Effect.
SECTION 8.2 Maintenance of Property
. Protect and preserve all properties useful in and material to
its business, including copyrights, patents, trade names and
trademarks; maintain in good working order and condition all
buildings, equipment and other tangible real and personal
property; and from time to time make or cause to be made all
renewals, replacements and additions to such property necessary
for the conduct of its business, so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times.
SECTION 8.3 Insurance
. Maintain insurance with financially sound and reputable
insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be
required by Applicable Law, and on the Closing Date and from time
to time thereafter deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating
the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the
properties and risks covered thereby.
SECTION 8.4 Accounting Methods and Financial Records
. Maintain a system of accounting, and keep such books, records
and accounts (which shall be true and complete in all material
respects) as may be required or as may be necessary to permit the
preparation of financial statements in accordance with GAAP and
in compliance with the regulations of any Governmental Authority
having jurisdiction over it or any of its properties.
SECTION 8.5 Payment and Performance of Obligations
. Pay and perform all Obligations under this Agreement and the
other Loan Documents, and pay or perform (a) all taxes,
assessments and other governmental charges that may be levied or
assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with
customary trade practices; provided, that the Borrower or such
Subsidiary may contest any item described in clauses (a) or (b)
of this Section 8.5 in good faith so long as adequate reserves
are maintained with respect thereto in accordance with GAAP.
SECTION 8.6 Compliance With Laws and Approvals
. Observe and remain in compliance with all Applicable Laws and
maintain in full force and effect all Governmental Approvals, in
each case applicable to the conduct of its business, except where
the failure to so comply would not reasonably be expected to have
a Material Adverse Effect.
SECTION 8.7 Environmental Laws
. In addition to and without limiting the generality of Section
8.6, (a) comply with all applicable Environmental Laws and obtain
and comply with and maintain any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect, (b)
conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required
under Environmental Laws, and promptly comply with all lawful
orders and directives of any Governmental Authority regarding
Environmental Laws, and (c) defend, indemnify and hold harmless
the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers
and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the presence
of Hazardous Materials, or the violation of, noncompliance with
or liability under any Environmental Laws applicable to the
operations of the Borrower or such Subsidiary, or any orders,
requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent
that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 8.8 Compliance with ERISA
. In addition to and without limiting the generality of Section
8.6, (a) comply with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect
to all Employee Benefit Plans, (b) not take any action or fail to
take action the result of which could be a liability to the PBGC
or to a Multiemployer Plan, (c) not participate in any prohibited
transaction that could result in any civil penalty under ERISA or
tax under the Code, (d) operate each Employee Benefit Plan in
such a manner that will not incur any tax liability under Section
4980B of the Code or any liability to any qualified beneficiary
as defined in Section 4980B of the Code and (e) furnish to the
Administrative Agent upon the Administrative Agent's request such
additional information about any Employee Benefit Plan as may be
reasonably requested by the Administrative Agent.
SECTION 8.9 Compliance With Agreements
. Comply in all respects with each term, condition and provision
of all leases, agreements and other instruments entered into in
the conduct of its business including, without limitation, any
Material Contract, except where the failure to so comply would
not reasonably be excepted to have a Material Adverse Effect;
provided, that the Borrower or such Subsidiary may contest any
such lease, agreement or other instrument in good faith through
applicable proceedings so long as adequate reserves are
maintained in accordance with GAAP.
SECTION 8.10 Conduct of Business
. Engage only in businesses in substantially the same fields as
the businesses conducted on the Closing Date and in lines of
business reasonably related thereto.
SECTION 8.11 Visits and Inspections
. Upon two (2) days prior notice to the Borrower, permit
representatives of the Administrative Agent or any Lender, from
time to time, to visit and inspect its properties; inspect, audit
and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its
independent accountants, its business, assets, liabilities,
financial condition, results of operations and business
prospects.
SECTION 8.12 Year 2000 Compatibility
. Take all actions reasonably necessary to assure that
Borrower's computer based systems are able to operate and
effectively process data which includes dates on and after
January 1, 2000. At the request of the Administrative Agent, the
Borrower shall provide reasonable assurances satisfactory to the
Administrative Agent of the Borrower's Year 2000 compatibility.
SECTION 8.13 Further Assurances
. Make, execute and deliver all such additional and further
acts, things, deeds and instruments as the Administrative Agent
or any Lender may reasonably require to document and consummate
the transactions contemplated hereby and to vest completely in
and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Notes, the Letters of
Credit and the other Loan Documents.
ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in
full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the
Borrower and its Subsidiaries on a Consolidated basis will not:
SECTION 9.1 Leverage Ratio
: As of any fiscal quarter end, permit the ratio of (a) Total
Debt on such date to (b) Capitalization on such date to be
greater than 0.60 to 1.00.
SECTION 9.2 Interest and Rental Expense Coverage
Ratio
: As of any fiscal quarter end, permit the ratio of (a) EBITDAR
for the period of four (4) consecutive fiscal quarters ending on
or immediately prior to such date to (b) the sum of (i) Interest
Expense plus (ii) Rental Expense, in each case for the period of
four (4) consecutive fiscal quarters ending on or immediately
prior to such date to be less than 2.00 to 1.00.
SECTION 9.3 Minimum Net Worth
: As of any fiscal quarter end, permit Net Worth to be less than
the sum of (a) $146,964,000 plus (b) fifty percent (50%) of Net
Income (to the extent positive) after the Closing Date plus (c)
one hundred percent (100%) of Equity Net Cash Proceeds after the
Closing Date.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been finally paid and
satisfied in full and the Commitments terminated, unless consent
has been obtained in the manner set forth in Section 13.11
hereof, the Borrower has not and will not permit any of its
Subsidiaries to:
SECTION 10.1 Limitations on Total Debt
. Create, incur, assume or suffer to exist any Total Debt
except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement
(i) with (A) a Lender or (B) a counterparty reasonably
satisfactory to the Administrative Agent and (ii) upon terms and
conditions (including interest rate) reasonably satisfactory to
the Administrative Agent which agrees not to unreasonably
withhold approval of such terms;
(c) Intercompany Debt (i) owed by any Subsidiary to the
Borrower as evidenced by an Intercompany Note or (ii) owed by the
Borrower or any Subsidiary thereof to another Subsidiary;
provided that all intercompany Debt of the Borrower permitted by
this Section 10.1(c)(ii) is subordinated to the Obligations on
terms and conditions acceptable to the Administrative Agent and
Required Lenders;
(d) Debt existing on the Closing Date and not otherwise
permitted under this Section 10.1, as set forth on Schedule
6.1(t) and the renewal and refinancing (but not the increase at
the aggregate principal amount thereof) thereof;
(e) Debt of the Borrower and its Subsidiaries incurred in
connection with Capitalized Leases;
(f) purchase money Debt of the Borrower and its
Subsidiaries;
(g) Debt consisting of Guaranty Obligations permitted by
Section 10.2; and
(h) (i) any Total Debt consisting of an ELLF existing on
the Closing Date and set forth on Schedule 10.1, and (ii) any
Total Debt consisting of an ELLF not existing on the Closing
Date; provided, that such Total Debt (exclusive of any Total Debt
under the immediately preceding clause (i)) does not, at any
time, exceed $50,000,000 in the aggregate and is on terms and
conditions reasonably acceptable to the Administrative Agent;
provided, that no agreement or instrument with respect to Debt
permitted to be incurred by this Section 10.1 shall restrict,
limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of the Borrower to make any payment to
the Borrower or any of its Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the purpose of
enabling the Borrower to pay the Obligations.
SECTION 10.2 Limitations on Guaranty Obligations
. Create, incur, assume or suffer to exist any Guaranty
Obligations except:
(a) Guaranty Obligations in favor of the Administrative
Agent for the benefit of the Administrative Agent and the
Lenders;
(b) Guaranty Obligations of the Borrower or any Subsidiary
on account of trade payables arising out of the ordinary course
of business;
(c) Guaranty Obligations in existence on the Closing Date
in respect of any ELLF and set forth on Schedule 10.2 and any
ELLF permitted under Section 10.1(h) hereof; and
(d) Guaranty Obligations of the Borrower incurred in
connection with the issuance of industrial revenue bonds by the
Carrollton Payroll Development Authority as set forth on Schedule
10.2 hereof.
SECTION 10.3 Limitations on Liens
. Create, incur, assume or suffer to exist, any Lien on or with
respect to any of its assets or properties (including without
limitation shares of capital stock or other ownership interests),
real or personal, whether now owned or hereafter acquired,
except:
(a) Liens for taxes, assessments and other governmental
charges or levies (excluding any Lien imposed pursuant to any of
the provisions of ERISA or Environmental Laws) not yet due or as
to which the period of grace (not to exceed thirty (30) days), if
any, related thereto has not expired, or, with respect to
Tennessee property taxes, not yet delinquent, or which are being
contested in good faith and by appropriate proceedings if
adequate reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers,
warehousemen, processors or landlords for labor, materials,
supplies or rentals incurred in the ordinary course of business,
(i) which are not overdue for a period of more than thirty (30)
days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure
payment of, obligations under workers' compensation, unemployment
insurance or similar legislation or obligations (not to exceed
$1,000,000) under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on
the use of real property, which in the aggregate are not
substantial in amount and which do not, in any case, detract from
the value of such property or impair the use thereof in the
ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders;
(f) Liens not otherwise permitted by this Section 10.3 and
in existence on the Closing Date and described on Schedule 10.3;
and
(g) Liens securing Debt permitted under Section 10.1(f);
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of the related asset, (ii)
such Liens do not at any time encumber any property other than
the property financed by such Debt, (iii) the amount of Debt
secured thereby is not increased and (iv) the principal amount of
Debt secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price of such property at
the time it was acquired.
SECTION 10.4 Limitations on Loans, Advances, Investments
and Acquisitions
. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or
joint venture (including without limitation the creation or
capitalization of any Subsidiary), evidence of Debt or other
obligation or security, substantially all or a portion of the
business or assets of any other Person or any other investment or
interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions
of credit to, or any investment in cash or by delivery of
property in, any Person except:
(a) investments not otherwise permitted by this Section
10.4 in Subsidiaries existing on the Closing Date and the other
existing loans, advances and investments not otherwise permitted
by this Section 10.4 described on Schedule 10.4;
(b) investments in (i) marketable direct obligations issued
or unconditionally guaranteed by the United States of America or
any agency thereof maturing within 120 days from the date of
acquisition thereof, (ii) commercial paper maturing no more than
120 days from the date of creation thereof and currently having
the highest rating obtainable from either Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc.
or Moody's Investors Service, Inc., (iii) certificates of deposit
maturing no more than 120 days from the date of creation thereof
issued by commercial banks incorporated under the laws of the
United States of America, each having combined capital, surplus
and undivided profits of not less than $500,000,000 and having a
rating of "A" or better by a nationally recognized rating agency;
provided, that the aggregate amount invested in such certificates
of deposit shall not at any time exceed $5,000,000 for any one
such certificate of deposit and $10,000,000 for any one such
bank, or (iv) time deposits maturing no more than 30 days from
the date of creation thereof with commercial banks or savings
banks or savings and loan associations each having membership
either in the FDIC or the deposits of which are insured by the
FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder;
(c) investments by the Borrower or any Subsidiary in the
form of acquisitions of all or substantially all of the business
or a line of business (whether by the acquisition of capital
stock, assets or any combination thereof) of any other Person
which are consummated in accordance with the following
requirements of this Section 10.4(c) (any such acquisition, a
"Permitted Acquisition"):
(i) the acquired Person and substantially all of the
acquired assets shall be utilized in the same line of
business as the Borrower and
(ii) no Default or Event of Default shall have occurred
and be continuing or be created by the proposed acquisition;
and
(d) investments in the form of loans and advances to
employees in the ordinary course of business, which, in the
aggregate, do not exceed at any time $1,000,000;
(e) investments (i) by the Borrower of the capital stock of
a Subsidiary in another Subsidiary, or (ii) by a Subsidiary of
its capital stock or the capital stock of another Subsidiary in
another Subsidiary; and
(f) investments in the form of loans and advances by the
Borrower to its Subsidiaries evidenced by an Intercompany Note.
SECTION 10.5 Limitations on Mergers and Liquidation
. Merge, consolidate or enter into any similar combination with
any other Person or liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of the Borrower may merge
with any other Wholly-Owned Subsidiary of the Borrower;
(b) any Wholly-Owned Subsidiary may merge into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection
with an acquisition permitted by Section 10.4(c); and
(c) any Wholly-Owned Subsidiary of the Borrower may wind-up
into the Borrower or any other Wholly-Owned Subsidiary of the
Borrower.
SECTION 10.6 Limitations on Sale of Assets
. Convey, sell, lease, assign, transfer or otherwise dispose of
any of its property, business or assets (including, without
limitation, the sale of any receivables and leasehold interests
and any sale-leaseback or similar transaction), whether now owned
or hereafter acquired except:
(a) the sale of inventory in the ordinary course of
business;
(b) the sale of obsolete assets no longer used or usable in
the business of the Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Borrower or any Wholly-
Owned Subsidiary of the Borrower pursuant to Section 10.5(c); and
(d) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in
connection with the compromise or collection thereof.
SECTION 10.7 Limitations on Dividends and Distributions
. Declare or pay any dividends upon any of its capital stock;
purchase, redeem, retire or otherwise acquire, directly or
indirectly, any shares of its capital stock, or make any
distribution of cash, property or assets among the holders of
shares of its capital stock, or make any change in its capital
structure that could reasonably be expected to have a Material
Adverse Effect; provided that:
(a) the Borrower or any Subsidiary may pay dividends in
shares of its own capital stock; and
(b) any Subsidiary may pay cash dividends to the Borrower.
SECTION 10.8 Limitations on Exchange and Issuance of
Capital Stock
. Issue, sell or otherwise dispose of any class or series of
capital stock that, by its terms or by the terms of any security
into which it is convertible or exchangeable, is, or upon the
happening of an event or passage of time would be, (a)
convertible or exchangeable into Debt or (b) required to be
redeemed or repurchased, including at the option of the holder,
in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due.
SECTION 10.9 Transactions with Affiliates.
Except to the extent provided in Section 10.4(d), directly or
indirectly (a) make any loan or advance to, or purchase or assume
any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any
member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations
to any of its Affiliates or (b) enter into, or be a party to, any
other transaction with any of its Affiliates, except pursuant to
the reasonable requirements of its business and upon fair and
reasonable terms that are no less favorable to it than it would
obtain in a comparable arm's length transaction with a Person not
its Affiliate.
SECTION 10.10 Certain Accounting Changes
. Change its Fiscal Year end, or make any change in its
accounting treatment and reporting practices except as required
by GAAP.
SECTION 10.11 Amendments; Payments and Prepayments of Debt
. Amend or modify (or permit the modification or amendment of)
any of the terms or provisions of any Debt in excess of
$1,000,000, or cancel or forgive, make any voluntary or optional
payment or prepayment on, or redeem or acquire for value
(including without limitation by way of depositing with any
trustee with respect thereto money or securities before due for
the purpose of paying when due) any Debt in excess of $1,000,000.
SECTION 10.12 Restrictive Agreements
. Enter into any Debt which contains any negative pledge on
assets or any covenants more restrictive than the provisions of
Articles IX, X and XI hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect
to any of its assets or properties other than the assets or
properties securing such Debt.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default
. Each of the following shall constitute an Event of Default,
whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule
or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and
Reimbursement Obligations. The Borrower shall default in any
payment of principal of any Loan, Note or Reimbursement
Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in
the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan, Note or
Reimbursement Obligation or the payment of any other Obligation.
(c) Misrepresentation. Any representation or warranty made
by the Borrower or any of its Subsidiaries under this Agreement,
any Loan Document or any amendment hereto or thereto, shall at
any time prove to have been incorrect or misleading in any
material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The
Borrower shall default in the performance or observance of any
covenant or agreement contained in Sections 7.1, 7.2 or 7.5(e) or
Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and
Conditions. The Borrower or any Subsidiary thereof shall default
in the performance or observance of any term, covenant, condition
or agreement contained in this Agreement (other than as
specifically provided for otherwise in this Section 11.1) or any
other Loan Document and such default shall continue for a period
of thirty (30) days after written notice thereof has been given
to the Borrower by the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be
due by the Borrower under any Hedging Agreement and such amount
is not paid within thirty (30) Business Days of the due date
thereof.
(g) Debt Cross-Default. The Borrower or any of its
Subsidiaries shall (i) default in the payment of any Debt (other
than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $1,000,000
beyond the period of grace if any, provided in the instrument or
agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition
relating to any Debt (other than the Notes or any Reimbursement
Obligation) the aggregate outstanding amount of which Debt is in
excess of $1,000,000 or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or
holders of such Debt (or a trustee or agent on behalf of such
holder or holders) to cause, with the giving of notice if
required, any such Debt to become due prior to its stated
maturity (any applicable grace period having expired).
(h) Other Cross-Defaults. The Borrower or any of its
Subsidiaries shall default in the payment when due, or in the
performance or observance, of any obligation or condition of any
Material Contract unless, but only as long as, the existence of
any such default is being contested by the Borrower or such
Subsidiary in good faith by appropriate proceedings and adequate
reserves in respect thereof have been established on the books of
the Borrower or such Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons
(within the meaning of Section 13(d) of the Securities Exchange
Act of 1934, as amended), shall obtain ownership or control in
one or more series of transactions of more than fifty percent
(50%) of the common stock or fifty percent (50%) of the voting
power of the Borrower entitled to vote in the election of members
of the board of directors of the Borrower or there shall have
occurred under any indenture or other instrument evidencing any
Debt in excess of $1,000,000 any "change in control" (as defined
in such indenture or other evidence of Debt) obligating the
Borrower to repurchase, redeem or repay all or any part of the
Debt or capital stock provided for therein (any such event, a
"Change in Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any
Subsidiary thereof shall (i) commence a voluntary case under the
federal bankruptcy laws (as now or hereafter in effect), (ii)
file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or
foreign, (v) admit in writing its inability to pay its debts as
they become due, (vi) make a general assignment for the benefit
of creditors, or (vii) take any corporate action for the purpose
of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against the Borrower or any
Subsidiary thereof in any court of competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or hereafter
in effect) or under any other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for the Borrower or
any Subsidiary thereof or for all or any substantial part of
their respective assets, domestic or foreign, and such case or
proceeding shall continue without dismissal or stay undismissed
or unstayed for a period of sixty (60) consecutive days, or an
order granting the relief requested in such case or proceeding
(including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement
or of any other Loan Document shall for any reason cease to be
valid and binding on the Borrower or Subsidiary party thereto or
any such Person shall so state in writing.
(m) Termination Event. The occurrence of any of the
following events: (i) the Borrower or any ERISA Affiliate fails
to make full payment when due of all amounts which, under the
provisions of any Pension Plan or Section 412 of the Code, the
Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in
excess of $100,000 occurs or exists, whether or not waived, with
respect to any Pension Plan, (iii) a Termination Event or (iv)
the Borrower or any ERISA Affiliate as employers under one or
more Multiemployer Plan makes a complete or partial withdrawal
from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments
in an amount exceeding $100,000.
(n) Judgment. A judgment or order for the payment of money
which causes the aggregate amount of all such judgments to exceed
$500,000 in any Fiscal Year shall be entered against the Borrower
or any of its Subsidiaries by any court and such judgment or
order shall continue without dismissal or stay for a period of
thirty (30) days.
SECTION 11.2 Remedies
. Upon the occurrence of an Event of Default, with the consent
of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower:
(a) Acceleration; Termination of Facilities. Declare the
principal of and interest on the Loans, the Notes and the
Reimbursement Obligations at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under
this Agreement or any of the other Loan Documents (other than any
Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents
required thereunder) and all other Obligations (other than
obligations owing under any Hedging Agreement), to be forthwith
due and payable, whereupon the same shall immediately become due
and payable without presentment, demand, protest or other notice
of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Facility and any right of the
Borrower to request borrowings or Letters of Credit thereunder;
provided, that upon the occurrence of an Event of Default
specified in Section 11.1(j) or (k), the Facility shall be
automatically terminated and all Obligations (other than
obligations owing under any Hedging Agreement) shall
automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of
Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to the preceding
paragraph, require the Borrower at such time to deposit in a cash
collateral account opened by the Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account
shall be applied by the Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay the
other Obligations. After all such Letters of Credit shall have
expired or been fully drawn upon, the Reimbursement Obligation
shall have been satisfied and all other Obligations shall have
been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower.
(c) Rights of Collection. Exercise on behalf of the
Lenders all of its other rights and remedies under this
Agreement, the other Loan Documents and Applicable Law, in order
to satisfy all of the Borrower's Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver;
etc
. The enumeration of the rights and remedies of the
Administrative Agent and the Lenders set forth in this Agreement
is not intended to be exhaustive and the exercise by the
Administrative Agent and the Lenders of any right or remedy shall
not preclude the exercise of any other rights or remedies, all of
which shall be cumulative, and shall be in addition to any other
right or remedy given hereunder or under the Loan Documents or
that may now or hereafter exist in law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the
Administrative Agent or any Lender in exercising any right, power
or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege
preclude other or further exercise thereof or the exercise of any
other right, power or privilege or shall be construed to be a
waiver of any Event of Default. No course of dealing between the
Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or any of the
other Loan Documents or to constitute a waiver of any Event of
Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment
. Each of the Lenders hereby irrevocably designates and appoints
First Union as Administrative Agent of such Lender under this
Agreement and the other Loan Documents for the term hereof and
each such Lender irrevocably authorizes First Union as
Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms
of this Agreement and such other Loan Documents, together with
such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Administrative Agent
shall not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Administrative Agent. Any reference
to the Administrative Agent in this Article XII shall be deemed
to refer to the Administrative Agent solely in its capacity as
Administrative Agent and not in its capacity as a Lender.
SECTION 12.2 Delegation of Duties
. The Administrative Agent may execute any of its respective
duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact
selected by the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions
. Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection
with this Agreement or the other Loan Documents (except for
actions occasioned solely by its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any
manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its
Subsidiaries or any officer thereof contained in this Agreement
or the other Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with,
this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or for
any failure of the Borrower or any of its Subsidiaries to perform
its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the
Borrower or any of its Subsidiaries.
SECTION 12.4 Reliance by the Administrative Agent
. The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance with
Section 13.10 hereof. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or,
when expressly required hereby or by the relevant other Loan
Document, all the Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action except for
its own gross negligence or willful misconduct. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and
the Notes in accordance with a request of the Required Lenders
(or, when expressly required hereby, all the Lenders), and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of
the Notes.
SECTION 12.5 Notice of Default
. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives
such a notice, it shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless
and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders, except
to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with
the consent and authorization or the request of the Lenders or
Required Lenders, as applicable.
SECTION 12.6 Non-Reliance on the Administrative Agent and
Other Lenders
. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower or any of
its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that
it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of
the Borrower and its Subsidiaries and made its own decision to
make its Loans and issue or participate in Letter of Credit
hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of
the Borrower and its Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or by the other
Loan Documents, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property,
financial and other condition or creditworthiness of the Borrower
or any of its Subsidiaries which may come into the possession of
the Administrative Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
SECTION 12.7 Indemnification
. The Lenders agree to indemnify the Administrative Agent in its
capacity as such and (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to
do so), ratably according to the respective amounts of their
Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time
following the payment of the Notes or any Reimbursement
Obligation) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents, or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's bad faith, gross negligence or willful
misconduct. The agreements in this Section 12.7 shall survive
the payment of the Notes, any Reimbursement Obligation and all
other amounts payable hereunder and the termination of this
Agreement.
SECTION 12.8 The Administrative Agent in Its Individual
Capacity
. The Administrative Agent and its respective Subsidiaries and
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Administrative Agent were not an Administrative Agent hereunder.
With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by
it or participated in by it, the Administrative Agent shall have
the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its
individual capacity.
SECTION 12.9 Resignation of the Administrative Agent;
Successor Administrative Agent
. Subject to the appointment and acceptance of a successor as
provided below, the Administrative Agent may resign at any time
by giving notice thereof to the Lenders and the Borrower. Upon
any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent, which successor
shall have minimum capital and surplus of at least $500,000,000.
If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the Administrative Agent's giving
of notice of resignation, then the Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which successor shall have minimum capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of
this Section 12.9 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 Administrative Agent12.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided
in this Agreement, all notices and communications hereunder shall
be in writing, or by telephone subsequently confirmed in writing.
Any notice shall be effective if delivered by hand delivery or
sent via telecopy, recognized overnight courier service or
certified mail, return receipt requested, and shall be presumed
to be received by a party hereto (i) on the date of delivery if
delivered by hand or sent by telecopy, (ii) on the next Business
Day if sent by recognized overnight courier service and (iii) on
the third Business Day following the date sent by certified mail,
return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent
will be deemed to be the controlling and proper notice in the
event of a discrepancy with or failure to receive a confirming
written notice.
(b) Addresses for Notices. Notices to any party shall be
sent to it at the following addresses, or any other address as to
which all the other parties are notified in writing.
If to the Borrower: Performance Food Group Company
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Attention: Mr. John Austin
Telephone No.: (804) 285-7340
Telecopy No.: (804) 285-5360
With copies to: Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238
Attention: F. Mitchell Walker Jr.
Telephone No.: (615) 742-6275
Telecopy No.: (615) 742-2775
If to First Union as First Union National Bank
Administrative Agent: One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 374-2698
Telecopy No.: (704) 383-0288
If to any Lender: To the Address set forth on Schedule 1 hereto
(c) Administrative Agent's Office. The Administrative
Agent hereby designates its office located at the address set
forth above, or any subsequent office which shall have been
specified for such purpose by written notice to the Borrower and
Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit issued.
SECTION 13.2 Expenses; Indemnity
. The Borrower will (a) pay all out-of-pocket expenses of the
Administrative Agent in connection with (i) the preparation,
execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered,
including without limitation all out-of-pocket syndication and
due diligence expenses and reasonable fees and disbursements of
counsel for the Administrative Agent and (ii) the preparation,
execution and delivery of any waiver, amendment or consent by the
Administrative Agent or the Lenders relating to this Agreement or
any other Loan Document, including without limitation reasonable
fees and disbursements of counsel for the Administrative Agent,
(b) pay all reasonable out-of-pocket expenses of the
Administrative Agent and each Lender actually incurred in
connection with the administration and enforcement of any rights
and remedies of the Administrative Agent and Lenders under the
Facility, including consulting with appraisers, accountants,
engineers, attorneys and other Persons concerning the nature,
scope or value of any right or remedy of the Administrative Agent
or any Lender hereunder or under any other Loan Document or any
factual matters in connection therewith, which expenses shall
include without limitation the reasonable fees and disbursements
of such Persons, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, Administrative
Agents, officers and directors, from and against any losses,
penalties, fines, liabilities, settlements, damages, costs and
expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or
not the Administrative Agent or any Lender is a party thereto)
and the prosecution and defense thereof, arising out of or in any
way connected with the Agreement, any other Loan Document or the
Loans, including without limitation reasonable attorney's and
consultant's fees, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct
of the party seeking indemnification therefor.
SECTION 13.3 Set-off
. In addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during
the continuance thereof, the Lenders and any assignee or
participant of a Lender in accordance with Section 13.10 are
hereby authorized by the Borrower at any time or from time to
time, without notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held
or owing by the Lenders, or any such assignee or participant to
or for the credit or the account of the Borrower against and on
account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall
have declared any or all of the Obligations to be due and payable
as permitted by Section 11.2 and although such Obligations shall
be contingent or unmatured.
SECTION 13.4 Governing Law
. This Agreement, the Notes and the other Loan Documents, unless
otherwise expressly set forth therein, shall be governed by,
construed and enforced in accordance with the laws of the State
of North Carolina, without reference to the conflicts or choice
of law principles thereof.
SECTION 13.5 Consent to Jurisdiction
. The Borrower hereby irrevocably consents to the personal
jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other
proceeding arising out of any dispute in connection with this
Agreement, the Notes and the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such
rights and obligations. The Borrower hereby irrevocably consents
to the service of a summons and complaint and other process in
any action, claim or proceeding brought by the Administrative
Agent or any Lender in connection with this Agreement, the Notes
or the other Loan Documents, any rights or obligations hereunder
or thereunder, or the performance of such rights and obligations,
on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the
right of the Administrative Agent or any Lender to serve legal
process in any other manner permitted by Applicable Law or affect
the right of the Administrative Agent or any Lender to bring any
action or proceeding against the Borrower or its properties in
the courts of any other jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether
made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or
relating to the Notes or any other Loan Documents ("Disputes"),
between or among parties to the Notes or any other Loan Document
shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder.
Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising
from Loan Documents executed in the future, disputes as to
whether a matter is subject to arbitration, or claims concerning
any aspect of the past, present or future relationships arising
out of or connected with the Loan Documents. Arbitration shall
be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association and Title 9 of the U.S. Code.
All arbitration hearings shall be conducted in Charlotte, North
Carolina. The expedited procedures set forth in Rule 51, et seq.
of the Arbitration Rules shall be applicable to claims of less
than $1,000,000. All applicable statutes of limitation shall
apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding anything
foregoing to the contrary, any arbitration proceeding demanded
hereunder shall begin within ninety (90) days after such demand
thereof and shall be concluded within one hundred and twenty
(120) days after such demand. These time limitations may not be
extended unless a party hereto shows cause for extension and then
such extension shall not exceed a total of sixty (60) days. The
panel from which all arbitrators are selected shall be comprised
of licensed attorneys. The single arbitrator selected for
expedited procedure shall be a retired judge from the highest
court of general jurisdiction, state or federal, of the state
where the hearing will be conducted. The parties hereto do not
waive any applicable Federal or state substantive law except as
provided herein. Notwithstanding the foregoing, this paragraph
shall not apply to any Hedging Agreement that is a Loan Document.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND
THE BORROWER HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and
the other Loan Documents preserve, without diminution, certain
remedies that such Persons may employ or exercise freely, either
alone, in conjunction with or during a Dispute. Each such Person
shall have and hereby reserves the right to proceed in any court
of proper jurisdiction or by self help to exercise or prosecute
the following remedies: (i) all rights to foreclose against any
real or personal property or other security by exercising a power
of sale granted in the Loan Documents or under applicable law or
by judicial foreclosure and sale, (ii) all rights of self help
including peaceful occupation of property and collection of
rents, set off, and peaceful possession of property, and (iii)
obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of
receiver and in filing an involuntary bankruptcy proceeding.
Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a
party in a Dispute.
SECTION 13.7 Reversal of Payments
. To the extent the Borrower makes a payment or payments to the
Administrative Agent for the ratable benefit of the Lenders or
the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the
extent of such payment or proceeds repaid, the Obligations or
part thereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower
fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy of law may prove to
be inadequate relief to the Lenders. Therefore, the Borrower
agrees that the Lenders, at the Lenders' option, shall be
entitled to temporary and permanent injunctive relief in any such
case without the necessity of proving actual damages.
(b) The Administrative Agent, Lenders and Borrower (on
behalf of itself and its Subsidiaries) hereby agree that no such
Person shall have a remedy of punitive or exemplary damages
against any other party to a Loan Document and each such Person
hereby waives any right or claim to punitive or exemplary damages
that they may now have or may arise in the future in connection
with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of
punitive or exemplary damages against any other party in any
Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the future
in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
SECTION 13.9 Accounting Matters
. All financial and accounting calculations, measurements and
computations made for any purpose relating to this Agreement,
including, without limitation, all computations utilized by the
Borrower or any Subsidiary thereof to determine compliance with
any covenant contained herein, shall, except as otherwise
expressly contemplated hereby or unless there is an express
written direction by the Administrative Agent to the contrary
agreed to by the Borrower, be performed in accordance with GAAP
as in effect on the Closing Date. In the event that changes in
GAAP shall be mandated by the Financial Accounting Standards
Board, or any similar accounting body of comparable standing, or
shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such
accounting terms or the interpretation or computation thereof,
such changes shall be followed in defining such accounting terms
only from and after the date the Borrower and the Lenders shall
have amended this Agreement to the extent necessary to reflect
any such changes in the financial covenants and other terms and
conditions of this Agreement.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Administrative
Agent and the Lenders, all future holders of the Notes, and their
respective successors and assigns, except that the Borrower shall
not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the
consent of the Borrower (so long as no Default or Event of
Default has occurred and is continuing) and the consent of the
Administrative Agent, which consents shall not be unreasonably
withheld, assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of the
Extensions of Credit at the time owing to it and the Notes held
by it); provided that:
(i) each such assignment shall be of a constant,
and not a varying, percentage of all the assigning Lender's
rights and obligations under this Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment so assigned shall
not be less than $5,000,000;
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance in the form of Exhibit H attached hereto (an
"Assignment and Acceptance"), together with any Note or Notes
subject to such assignment;
(iv) such assignment shall not, without the
consent of the Borrower, require the Borrower to file a
registration statement with the Securities and Exchange
Commission or apply to or qualify the Loans or the Notes under
the blue sky laws of any state; and
(v) the assigning Lender shall pay to the
Administrative Agent an assignment fee of $3,000 upon the
execution by such Lender of the Assignment and Acceptance;
provided that no such fee shall be payable upon any assignment by
a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations
of a Lender hereby and (B) the Lender thereunder shall, to the
extent provided in such assignment, be released from its
obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as set forth in such
Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a
copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the
Lenders and the amount of the Extensions of Credit with respect
to each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders
may treat each person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or
Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an
Eligible Assignee together with any Note or Notes subject to such
assignment and the written consent to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has
been completed and is substantially in the form of Exhibit H:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in
the Register;
(iii) give prompt notice thereof to the Lenders and
the Borrower; and
(iv) promptly deliver a copy of such Assignment
and Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the
Borrower shall execute and deliver to the Administrative Agent,
in exchange for the surrendered Note or Notes, a new Note or
Notes to the order of such Eligible Assignee in amounts equal to
the Commitment assumed by it pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning
Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes delivered to the
assigning Lender. Each surrendered Note or Notes shall be
canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to
one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including, without
limitation, all or a portion of its Extensions of Credit and the
Notes held by it); provided that:
(i) each such participation shall be in an amount
not less than $5,000,000;
(ii) such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall
remain unchanged;
(iii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such
obligations;
(iv) such Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Agreement;
(vi) such Lender shall not permit such participant
the right to approve any waivers, amendments or other
modifications to this Agreement or any other Loan Document other
than waivers, amendments or modifications which would reduce the
principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the
Commitment, reduce the amount of any fees to which such
participant is entitled, extend any scheduled payment date for
principal of any Loan; and
(vii) any such disposition shall not, without the
consent of the Borrower, require the Borrower to file a
registration statement with the Securities and Exchange
Commission to apply to qualify the Loans or the Notes under the
blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The
Administrative Agent and the Lenders shall hold all non-public
information with respect to the Borrower obtained pursuant to the
Loan Documents in accordance with their customary procedures for
handling confidential information; provided, that the
Administrative Agent may disclose information relating to this
Agreement to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other
information customarily found in such publications and provided
further, that the Administrative Agent and Lenders may disclose
any such information to the extent such disclosure is required by
law or requested by any regulatory authority. Any Lender may, in
connection with any assignment, proposed assignment,
participation or proposed participation pursuant to this Section
13.10, disclose to the assignee, participant, proposed assignee
or proposed participant, any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower;
provided, that prior to any such disclosure, each such assignee,
proposed assignee, participant or proposed participant shall
agree with the Borrower or such Lender to preserve the
confidentiality of any confidential information relating to the
Borrower received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any
Federal Reserve Bank in accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents
. Except as set forth below, any term, covenant, agreement or
condition of this Agreement or any of the other Loan Documents
(other than any Hedging Agreement, the terms and conditions of
which may be amended, modified or waived by the parties thereto)
may be amended or waived by the Lenders, and any consent given by
the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders)
and delivered to the Administrative Agent and, in the case of an
amendment, signed by the Borrower; provided, that no amendment,
waiver or consent shall (a) increase the amount or extend the
time of the obligation of the Lenders to make Loans or issue or
participate in Letters of Credit (except as expressly
contemplated pursuant to Section 2.8), (b) extend the originally
scheduled time or times of payment of the principal of any Loan
or Reimbursement Obligation or the time or times of payment of
interest on any Loan or Reimbursement Obligation, (c) reduce the
rate of interest or fees payable on any Loan or Reimbursement
Obligation, (d) reduce the principal amount of any Loan or
Reimbursement Obligation, (e) permit any subordination of the
principal or interest on any Loan or Reimbursement Obligation,
(f) permit any assignment (other than as specifically permitted
or contemplated in this Agreement) of any of the Borrower's
rights and obligations hereunder or (g) amend the provisions of
this Section 13.11 or the definition of Required Lenders, without
the prior written consent of each Lender. In addition, no
amendment, waiver or consent to the provisions of (a) Article XII
shall be made without the written consent of the Administrative
Agent and (b) Article III without the written consent of the
Issuing Lender.
SECTION 13.12 Performance of Duties
. The Borrower's obligations under this Agreement and each of
the Loan Documents shall be performed by the Borrower at its sole
cost and expense.
SECTION 13.13 All Powers Coupled with Interest
. All powers of attorney and other authorizations granted to the
Lenders, the Administrative Agent and any Persons designated by
the Administrative Agent or any Lender pursuant to any provisions
of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long
as any of the Obligations remain unpaid or unsatisfied or the
Facility has not been terminated.
SECTION 13.14 Survival of Indemnities
. Notwithstanding any termination of this Agreement, the
indemnities to which the Administrative Agent and the Lenders are
entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue
in full force and effect and shall protect the Administrative
Agent and the Lenders against events arising after such
termination as well as before.
SECTION 13.15 Titles and Captions
. Titles and captions of Articles, Sections and subsections in
this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement.
SECTION 13.16 Severability of Provisions
. Any provision of this Agreement or any other Loan Document
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective only to the extent of
such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or
thereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 13.17 Counterparts
. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and
shall be binding upon all parties, their successors and assigns,
and all of which taken together shall constitute one and the same
agreement.
SECTION 13.18 Term of Agreement
. This Agreement shall remain in effect from the Closing Date
through and including the date upon which the Commitments shall
have been terminated, all outstanding Letters of Credit have
expired or been cancelled and all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such
termination.
SECTION 13.19 Inconsistencies with Other Documents;
Independent Effect of Covenants
. (a) In the event there is a conflict or inconsistency between
this Agreement and any other Loan Document, the terms of this
Agreement shall control.
(b) The Borrower expressly acknowledges and agrees that
each covenant contained in Articles VIII, IX, or X hereof shall
be given independent effect. Accordingly, the Borrower shall not
engage in any transaction or other act otherwise permitted under
any covenant contained in Articles VIII, IX, or X if, before or
after giving effect to such transaction or act, the Borrower
shall or would be in breach of any other covenant contained in
Articles VIII, IX, or X.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their duly authorized
officers, all as of the day and year first written above.
[CORPORATE SEAL] PERFORMANCE FOOD GROUP COMPANY,
as Borrower
By: //s//
Name: Roger L. Boeve
Title: Executive Vice President
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: //s//
Name: Bonnie A. Banks
Title: Vice President
BANK OF AMERICA NT&SA, as Lender
By: //s//
Name: William F. Sweeney
Title: Vice President
THE CHASE MANHATTAN BANK, as Lender
By: //s//
Name: Thomas Conroy, Jr.
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: //s//
Name: Stephen E. McDonald
Title: First Vice President
HIBERNIA NATIONAL BANK, as Lender
By: //s//
Name: Angela Bently
Title: Portofilio Manager
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
by and among
KMB PRODUCE, INC.
and
FIRST UNION NATIONAL BANK
Dated as of March 1, 1999
INDEX
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE BORROWER 9
Section 2.1.Organization and Good Standing 9
Section 2.2.Corporate and Governmental 9
Authorization;Contravention 9
Section 2.3.Binding Effect 10
Section 2.4.Litigation 10
Section 2.5.ERISA 10
Section 2.6. Taxes 10
Section 2.7.Subsidiaries. 10
Section 2.8.Investment Company Act 10
Section 2.9.Ownership of Property, Liens 11
Section 2.10. No Default 11
Section 2.11. Full Disclosure 11
Section 2.12. Representations Upon Requests for Advances 11
Section 2.13. Use of Proceeds: Margin Stock 11
Section 2.14. Insider 12
Section 2.15. Environmental 12
Section 2.16. Survival of Representations and Warranties 12
ARTICLE III REIMBURSEMENT AND OTHER PAYMENTS 13
Section 3.1.Letter of Credit 13
Section 3.2.Reimbursement and Other Payments 13
Section 3.3.Tender Advances 13
Section 3.4.[Intentionally Omitted]. 15
Section 3.5.Commission and Fees 15
Section 3.6.Increased Costs Due to Change in Law 15
Section 3.7.Computation 16
Section 3.8.Payment Procedure 16
Section 3.9.Business Days 16
Section 3.10. Reimbursement of Expenses 16
Section 3.11. Extension of Expiration Date 16
Section 3.12. Obligations Absolute 17
ARTICLE IV INSURANCE; NET PROCEEDS 18
Section 4.1.Security 18
Section 4.2.Casualty and Liability Insurance Required 18
Section 4.3.General Requirements Applicable to Insurance 18
Section 4.4.Advances by Bank 19
Section 4.5.Borrowers to Make Up Deficiency in
Insurance Coverage 19
Section 4.6.Eminent Domain 20
Section 4.7.Application of Net Proceeds of Insurance
and Eminent Domain 20
Section 4.8.Parties to Give Notice 20
Section 4.9.Preservation of Security Interest 20
ARTICLE V AFFIRMATIVE COVENANTS 21
Section 5.1.Notice of Default 21
ARTICLE VI NEGATIVE COVENANTS 22
Section 6.1 {RESERVED} 22
ARTICLE VII CONDITIONS TO ISSUANCE OF LETTER OF CREDIT 23
Section 7.1.Conditions on Issuance 23
Section 7.2.Additional Conditions Precedent to
Issuance of the Letter of Credit 25
Section 7.3.Conditions Precedent to Each Tender
Advance 25
ARTICLE VIII DEFAULT 27
Section 8.1.Events of Default 27
Section 8.2.No Remedy Exclusive 28
Section 8.3.Anti-Marshaling Provisions 28
ARTICLE IX MISCELLANEOUS 29
Section 9.1.Indemnification. 29
Section 9.2.Transfer of Letter of Credit 30
Section 9.3.Reduction of Letter of Credit. 30
Section 9.4.Liability of the Bank 30
Section 9.5.Successors and Assigns 31
Section 9.6.Notices 31
Section 9.7.Amendment 31
Section 9.8.Effect of Delay and Waivers 31
Section 9.9.Counterparts 32
Section 9.10.Severability 32
Section 9.11.Cost of Collection 32
Section 9.12.Set Off. 32
Section 9.13.Governing Law 32
Section 9.14.References 33
Section 9.15.Taxes, Etc. 33
Section 9.16. Consent to Jurisdiction, Venue; Waiver
of Jury Trial 33
Section 9.17Assignment and Pledge of Agreement 33
Exhibit A - Irrevocable Letter of Credit Relating to the Bonds
Exhibit B - Form of Opinion of Counsel to the Borrower
Exhibit C - Form of Opinion of Counsel to the Guarantor
</TABLE>
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
THIS AGREEMENT, dated as of March 1, 1999, by and between
KMB PRODUCE, INC., a Texas corporation (the "Borrower") and FIRST
UNION NATIONAL BANK, a national banking association organized and
existing under the laws of the United States with an office
located at Richmond, Virginia (the "Bank");
W I T N E S S E T H:
WHEREAS, arrangements have been made pursuant to a Trust
Indenture of even date herewith (the "Indenture") between the
Carrollton Payroll Development Authority (the "Issuer") and First
Union National Bank, Richmond, Virginia, as trustee (the
"Trustee") for the issuance and sale by the Issuer of its
Industrial Development Revenue Bonds (KMB Produce, Inc. Project),
Series 1999 in the aggregate principal amount of $9,000,000 (the
"Bonds"); and
WHEREAS, the proceeds from the sale of the Bonds will be
used to finance, in whole or in part, the cost of the
acquisition, construction, installation, renovation and equipping
of a manufacturing facility to be located in the City of
Carrollton, Georgia (the "Project");
WHEREAS, the proceeds of the Bonds will be loaned to the
Borrower pursuant to a Loan Agreement of even date herewith
between the Issuer and the Borrower (the "Loan Agreement"); and
WHEREAS, in order to enhance the marketability of the Bonds,
the Borrower has requested that the Bank issue an irrevocable
direct pay letter of credit in the form attached hereto as
Exhibit "A" (such letter of credit or any successor or substitute
letter of credit issued by the Bank herein called the "Letter of
Credit") in an aggregate amount not exceeding $9,187,500 of which
(a) $9,000,000 shall support the payment of principal or portion
of the purchase price corresponding to principal of the Bonds and
(b) $187,500 shall support the payment of up to 50 days interest
or portion of the purchase price corresponding to interest on the
Bonds at an assumed interest rate of 15% per annum;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, including the covenants, terms
and conditions hereinafter appearing, and to induce the Bank to
issue the Letter of Credit, the Borrower does hereby covenant and
agree with the Bank as follows:
ARTICLE I
DEFINITIONS
All words and terms defined in Article I of the Loan
Agreement shall have the same meanings in this Agreement, unless
otherwise specifically defined herein. The terms defined in this
Article I have, for all purposes of this Agreement, the meanings
specified hereinabove or in this Article, unless defined
elsewhere herein or the context clearly requires otherwise.
1.1. "Accountant" means an independent certified public
accountant or a firm thereof as approved by the Borrower.
1.2. "Affiliate" means any other Person directly or
indirectly, controlling, controlled by, or under common control
with, the first Person; or any other Person which directly or
indirectly owns or controls at least ten percent (10%) of the
Voting Stock, partnership or other equity interests of, or at
least ten percent (10%) of its Voting Stock, partnership or other
equity interests are owned or controlled by, directly or
indirectly, the first Person.
1.3. "Agreement" means this Letter of Credit and
Reimbursement Agreement, as the same may from time to time be
amended, modified or supplemented in accordance with the terms
hereof.
1.4. "Alternate Credit Facility" means any irrevocable
direct pay letter of credit, insurance policy or similar credit
enhancement or support facility for the benefit of the Trustee,
the terms of which Alternate Credit Facility shall in all
respects material to the registered owners of the Bonds be the
same (except for the term set forth in such Alternate Credit
Facility) as those of the Letter of Credit.
1.5. "Bank" means First Union National Bank, a national
banking association.
1.6. "Bankruptcy Code" means 11 U.S.C. 101 et seq., as
amended.
1.7. "Bondholder" or "Bondholders" means the initial and any
future registered owners of the Bond or Bonds as registered on
the books and records of the Bond Registrar pursuant to
Section 2.4 of the Indenture.
1.8. "Bond Documents" means, collectively, the Loan
Agreement, the Security Instruments, the Indenture, the Bonds,
the Remarketing Agreement, the Tender Agency Agreement, the
Private Placement Memorandum and the Placement Letter, as the
same may be amended, modified or supplemented from time to time
in accordance with their respective terms.
1.9. "Bonds" means the Carrollton Payroll Development
Authority Industrial Development Revenue Bonds (KMB Produce, Inc.
Project), Series 1999, in the original aggregate principal amount
of $9,000,000.
1.10. "Borrower" mean KMB Produce, Inc., a Texas corporation
and its successors and assigns.
1.11. "Capital Stock" means any capital stock of the
Borrower (to the extent issued to a Person other than the
Borrower), whether common or preferred.
1.12. "CERCLA" means Comprehensive, Environmental, Response,
Compensation and Liability Act of 1980, as amended from time to
time, and all rules and regulations from time to time promulgated
thereunder.
1.13. "Code" means the Internal Revenue Code of 1986, as
amended.
1.14. "Closing Date" means the date of issuance of the Bonds.
1.15. "Collateral" means all real and personal property of
the Borrower with respect to which the Bank has been or will be
granted a lien, mortgage or security interest in pursuant to the
Security Instruments.
1.16. "Commission Rate" means the applicable letter of credit
fee based on the following pricing grid:
Guarantor's Ratio of
Pricing Tier Debt/Total Capital Letter of Credit Fee
I <0.2 35.0
II >0.2 and <0.4 40.0
III >0.4 47.5
1.17. "Consistent Basis" means, in reference to the
application of GAAP applied on a basis consistent with that of
the preceding year, that the accounting principles observed in
the period referred to are comparable in all material respects to
those applied in the preceding period, except as to any changes
consented to by the Bank.
1.18. "Controlled" or "controlling" or "under common control
with" means, with respect to any Person, the power to direct or
cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by
agreement or otherwise.
1.19. "Controlled Group" means (i) the controlled group of
corporations as defined in Section 1563 of the Code, or (ii) the
group of trades or businesses under common control as defined in
Section 414(c) of the Code, of which the Borrower is a part or
may become a part.
1.20. "Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases in connection with
industrial development revenue bonds, (v) all obligations of such
Person to reimburse any bank or other Person in respect of
amounts payable under a banker's acceptance, (vi) all obligations
of such Person to reimburse any bank or other Person in respect
of amounts paid under a letter of credit or similar instrument,
(vii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, to
the extent of the fair market value of such assets and (viii) all
Debt of others Guaranteed by such Person to the extent of the
Debt which has been Guaranteed; provided, however, the term
"Debt" shall not include trade indebtedness of the Borrower.
1.21. "Debtor Laws" means all applicable liquidation,
conservatorship, bankruptcy, moratorium, arrangement,
receivership, insolvency, reorganization, fraudulent transfer or
similar laws from time to time in effect affecting the rights of
creditors generally and general principles of equity.
1.22. "Deed to Secure Debt" means the Deed to Secure Debt
and Security Agreement, dated the date thereof, from the Borrower
to the Bank, securing the obligations of the Borrower under this
Agreement.
1.23. "Default" means an event or condition the occurrence
of which would, with the lapse of time or the giving of notice,
or both become an Event of Default.
1.24. "Environmental Claim" means any accusation,
allegation, notice of violation, claim, demand, abatement order,
or other order or direction (conditional or otherwise) by any
governmental authority or any Person for any damage, including,
without limitation, personal injury (including sickness, disease,
or death), tangible or intangible property damage, contribution,
indemnity, direct or consequential damages, damage to the
environment, nuisance, pollution, contamination, or other adverse
effects on the environment, or for fines, penalties, or
restrictions, in each case relating to, resulting from, or in
connection with Hazardous Materials and relating to the Borrower,
or any property leased, owned, operated, or used by the Borrower.
1.25. "ERISA" means the Employee Retirement Income Security
Act of 1974, as it may be amended from time to time, and all
regulations promulgated under that Act.
1.26. "Event of Default" has the meaning specified in
Section 8.1 hereof.
1.1.
1.27. "Fiscal Year" means the fiscal year of the Borrower
ending on the last Saturday closest to December31.
1.28. "Generally Accepted Accounting Principles" or "GAAP"
means those generally accepted accounting principles and
practices which are recognized as such by the American Institute
of Certified Public Accountants acting through its Accounting
Principles Board or the Financial Accounting Standards Board or
through other appropriate boards or committees thereof and which
are consistently applied for all periods after the date hereof so
as to reflect the financial condition, results of operations and
changes in financial position of any Person, except that any
accounting principle or practice required to be changed by such
Accounting Principles Board or Financial Accounting Standards
Board (or other appropriate board or committee of such Boards) in
order to continue as a generally accepted accounting principle or
practice may so be changed, as provided in Section 1.02(c)
thereof. After any change in GAAP that affects any covenants of
this Agreement, the Bank and the Borrower will negotiate in good
faith to revise those covenants in order to make them consistent
with GAAP then in effect.
1.29. "Governmental Authority" means any government (or any
political subdivision or jurisdiction thereof), court, bureau,
agency, department or other governmental subdivision having
jurisdiction over the Borrower, any Affiliate of the Borrower or
any of their respective businesses, operations or properties.
1.30. "Guarantee" of any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds
for the purchase or payment of ) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
other services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee
shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb
has the corresponding meaning.
1.31. "Guaranty Agreement" has the meaning assigned in
Section 7.1(n) hereof.
1.32. "Hazardous Materials" means any flammable materials,
explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or similar materials
defined as such in any Environmental Claim.
1.33. "Indemnities" has the meaning assigned in Section 9.1
hereof.
1.1.
1.34. "Indemnified Matters" has the meaning assigned in
Section 9.1 hereof.
1.35. "Indenture" means the Trust Indenture, dated as of
March 1, 1999, among the Issuer and the Trustee, as from time to
time supplemented and amended.
1.36. "Loan Agreement" means that Loan Agreement, dated as of
March 1, 1999 between the Issuer and the Borrower, as
supplemented and amended from time to time.
1.37. "Letter of Credit" means the Letter of Credit, dated
March 19, 1998 issued by the Bank relating to the Bonds for the
account of the Borrower pursuant hereto and the Bond Documents.
1.38. "Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset. For purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to own
subject to a Lien any asset which they have acquired or hold
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
1.39. "Material Adverse Effect" means any (i) material
adverse effect upon the validity, performance or enforceability
of this Agreement or any of the Security Instruments or any of
the transactions contemplated hereby or thereby, (ii) material
adverse effect upon the properties, business, prospects or
condition financial or otherwise) of the Borrower, or
(iii) material adverse effect upon the ability of the Borrower or
any other Person to fulfill any obligation under this Agreement
or any of the Security Instruments.
1.40. "Multiemployer Plan" means the multiemployer plan as
set forth in Section 4001(a)(3) of ERISA.
1.41. Obligations" means all loans and all other advances,
debts, liabilities, obligations, covenants and duties owing,
arising, due or payable from the Borrower to the Bank, whether or
not evidenced by any note, guaranty or other instrument, whether
arising under this Agreement or any of the other Bond Documents
or otherwise, whether direct or indirect (including those
acquired by assignment), joint, several, absolute or contingent,
primary or secondary, due or to become due, now existing or
hereafter arising and however acquired. The term includes,
without limitation, all interest, charges, expenses, fees,
attorney's fees and any other sums chargeable to the Borrower
under any of the Bond Documents.
1.42. "PBGC" means the Pension Benefit Guaranty Corporation,
and any successor to all or any of the Pension Benefit Guaranty
Corporation's functions under ERISA.
1.43. "Person" means an individual, partnership,
corporation, trust, unincorporated
1.1. organization, association, joint venture or a
government or agency or political subdivision or instrumentality
thereof.
1.44. "Placement Letter" means the Placement Agent Agreement,
dated March 19, 1999 by and among the Company, the Issuer and
First Union Capital Markets Corp., Charlotte, North Carolina, as
Placement Agent for the Bonds.
1.45. "Plan" means an employee benefit plan or other plan
maintained for employees of the Borrower and covered by Title IV
of ERISA, and subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under
which more than one employer makes contribution and to which a
member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five
plan years made contributions.
1.46. "Pledge Agreement" means the Pledge Agreement dated as
of even date herewith from the Company to the Bank relating to
the Bonds.
1.47. "Private Placement Memorandum" means the Private
Placement Memorandum dated March 19, 1999 relating to the Bonds.
1.48. "Project" shall mean the financing, in whole or in
part, of the acquisition, construction, installation and
equipping of a manufacturing facility to be located in the City
of Carrollton, Georgia.
1.49. "Project Fund" means the trust fund so designated and
established under the Indenture.
1.50. "Property" or "Properties" means all real property
owned, leased or otherwise used or occupied by the Borrower,
wherever located.
1.51. "RCRA" means the Resource Conservation and Recovery
Act, as amended from time to time, and all rules and regulations
from time to time promulgated thereunder.
1.52. "Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, dumping, leaching, or migration of
Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of
any barrels, containers, or other closed receptacles containing
any Hazardous Materials), or into or out of any property owned,
leased, operated, or used by the Borrower or any subsidiaries (if
any), including the movement of any Hazardous Material through
the air, soil, surface water, groundwater, or property.
1.53. "Remarketing Agreement" means the Remarketing
Agreement, dated as of March 1, 1999, by and between the Company
and First Union Capital Markets Corp., as Remarketing Agent, as
supplemented and amended from time to time.
1.54. "SARA" means the Superfund Reauthorization and
Amendments Act of 1986, as amended from time to time, and all
rules and regulations promulgated thereunder.
1.55. "Security Instruments" means, collectively, the Pledge
Agreement, the Deed to Secure Debt, any Swap Agreement, and any
and all other agreements or instruments relating to the Project
now or hereafter executed and delivered by any of the Borrower or
any other Person in connection with, or as security for the
payment or performance of, the Letter of Credit or this Agreement
or any other obligations of any of the Borrower to the Bank as
described therein, as such agreements may be amended, modified or
supplemented from time to time in accordance with their
respective terms.
1.56. "Solvent" means, as to any Person, that such Person
has capital sufficient to carry on its business and transactions
and all business and transactions in which it is about to engage
and is able to pay its debts as they mature and owns property
having a value, both at fair valuation and at present fair
saleable value, greater than the amount required to pay its
debts.
1.57. "State" means the State of Georgia.
1.58. "Stated Expiration Date" means March 15, 2004.
1.59. "Stated Termination Date" means March 15, 2004, the
expiration date of the Letter of Credit, as such date may be
extended in accordance with terms of Section 3.11 hereof.
1.60. "Subsidiary" means any corporation, more than fifty
percent (50%) of the outstanding Voting Stock of which is at the
time, directly or indirectly, owned by the Borrower and/or one or
more Subsidiaries (irrespective of whether, at the time, capital
stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any
contingency).
1.61. "Swap Agreement" means (A) an agreement (including
teams and conditions incorporated by reference therein) which is
a rate swap agreement, basis swap, forward rate agreement,
commodity swap, interest rate option, forward foreign exchange
agreement, spot foreign exchange agreement, rate cap agreement,
rate floor agreement, rate collar agreement, currency swap
agreement, cross-currency rate swap agreement, currency option,
any other similar agreement (including any option to enter into
any of the foregoing); (B) any combination of the foregoing; or
(C) a master agreement for any of the forgoing together with all
supplements.
1.62. "Tender Advance" has the meaning assigned to that term
in Section 3.3 of this Agreement.
1.63. "Tender Agency Agreement" means the Tender Agency
Agreement dated as of March 1, 1999 by and between the Borrower
and the Trustee, as Tender Agent, as amended, from time to time
thereunder.
1.64. "Tender Draft" has the meaning assigned to that term in
the Letter of Credit.
1.65. "Termination Date" means the last day a drawing is
available under the Letter of Credit.
1.66. "Trustee" means any Person or group of Persons at the
time serving as trustee under the Indenture.
1.67. "UCC" means the Uniform Commercial Code in effect in
jurisdictions where assets of the Borrower is located at anytime
during the term hereof, as the same may be amended from time to
time.
1.68. "Voting Stock" of any corporation means shares of any
class or classes (however designated) of capital stock of such
corporation having ordinary voting power for the election of at
least a majority of the members of the board of directors (or
other governing bodies) of such corporation, other than shares
having such power only by reason of the happening of a
contingency.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to the Bank (which
representations and warranties shall survive the delivery of the
documents mentioned herein and the issuance of the Letter of
Credit) that:
Section 2.1. Organization and Good Standing. The Borrower
is a Texas corporation which is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation. The Borrower is duly qualified to transact
business in every jurisdiction where, by the nature of its
business, such qualifications are necessary, and has all
corporate powers and governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted, except where the failure to be so qualified or the
failure to have such licenses, authorizations, consents and
approvals will not have a Material Adverse Effect.
Section 2.2. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Borrower of this Agreement, the Bond Documents to which the
Borrower is a party, (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing
with, any governmental body, agency or official (except for any
resolution or resolutions of the Issuer relating to the Bonds),
(iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the operating
agreement, certificate of incorporation or by-laws of the
Borrower, or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of
its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
Section 2.3. Binding Effect. This Agreement, the Bond
Documents and Security Instruments to which the Borrower is a
party constitute valid and binding agreements of the Borrower
enforceable in accordance with their terms, provided, that the
enforceability hereof and thereof are limited by Debtor Laws.
Section 2.4. Litigation. Except as disclosed in writing
to the Bank, there is no action, suit or proceeding pending, or
to the knowledge of the Borrower threatened, against or affecting
the Borrower or any of its Affiliates before any court or
arbitrator or any governmental body, agency or official which
could have a Material Adverse Effect on the businesses, financial
positions or results of operations of the Borrower.
Section 2.5. ERISA. (a) The Borrower and each member of
the Controlled Group have fulfilled their obligations under
minimum funding standards of ERISA and the Code with respect to
each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have
not incurred any liability to the Pension Benefit Guaranty
Corporation (or any successor thereto).
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any
Multiemployer Plan.
Section 2.6. Taxes. There have been filed on behalf of
the Borrower all federal, state and local income and other tax
returns which are required to be filed by it and all taxes due
pursuant to such returns or pursuant to any assessment received
by or on behalf of the Borrower have been paid. The charges,
accruals and reserves on the books of the Borrower in respect of
taxes or other governmental charges are adequate.
Section 2.7. Subsidiaries. Except as otherwise disclosed
in writing to the Bank, there are no Subsidiaries of the
Borrower.
Section 2.8. Investment Company Act. The Borrower is not
an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not
controlled by such company.
Section 2.9. Ownership of Property, Liens. The Borrower has
title to its Properties sufficient for the conduct of its
business.
Section 2.10. No Default. To the best of its knowledge, the
Borrower is not in default under or with respect to any
agreement, instrument or undertaking to which they are a party or
by which they or any of their properties are bound which will
have a Material Adverse Effect to the business, operations,
properties or financial or other conditions of the Borrower, or
which will have a Material Adverse Effect to the Borrower to
perform its obligations under the Bond Documents. No Default has
occurred and is continuing.
Section 2.11. Full Disclosure. There is no material fact
which is known or which should be known by the Borrower or any
Affiliate that the Borrower has not disclosed to the Bank which
could have a Material Adverse Effect. Neither this Agreement nor
any agreement, document, certificate or statement delivered by
the Borrower or any Affiliate of the Borrower to the Bank,
contains any untrue statement of a material fact or omits to
state any material fact which is known or which should be known
by the Borrower necessary to keep the other statements from being
misleading.
Section 2.12. Representations Upon Requests for Advances.
Every draw under the Letter of Credit shall constitute, without
the necessity of specifically containing a written statement, a
representation and warranty by the Borrower that no Default or
Event of Default exists and that all representations and
warranties by the Borrower contained in this Agreement, and the
Bond Documents are true and correct as of the date the advance is
to be made.
Section 2.13. Use of Proceeds: Margin Stock. The proceeds
of the Bonds will be used by the Borrower only for the purposes
set forth herein and in the Bond Documents. The Borrower's uses
of the proceeds are, and continue to be, legal and proper
corporate uses, and the uses are and will be consistent with all
applicable laws and regulations, as in effect from time to time.
None of the proceeds of the Bonds will be used for the purpose of
purchasing or carrying any "margin stock" as defined in
Regulation U, Regulation X, or Regulation G of the Code of
Federal Regulations, Parts 221, 224 and 207, respectively, or for
the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry "margin stock," or for
any other purpose which might cause this transaction to be deemed
a "purpose credit" within the meaning of Regulation U,
Regulation X or Regulation G. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stocks. The Borrower, or any Person acting on
behalf of the Borrower, has not taken or will take any action
which might cause any violation of Regulation U, Regulation X, or
Regulation G or any other regulations of the Board of Governors
of the Federal Reserve System or any violation of Section 8 of
the Securities Exchange Act of 1934 or any rule or regulation
thereunder as now or hereafter in effect.
Section 2.14. Insider. The Borrower is not, and no Person
having "control" (as that term is defined in 12 U.S.C.
375(b)(5) or in regulations promulgated pursuant thereto) of
such Person is, an "executive officer", "director", or "principal
shareholder" (as those terms are defined in 12 U.S.C. 375(b) or
in regulations promulgated pursuant thereto) of the Bank, of a
bank holding company of which the Bank is a subsidiary, or of any
subsidiary of a bank holding company of which the Bank is a
subsidiary, or of any bank at which the Bank maintains a
"correspondent account" (as such term is defined in such statute
or regulations), or of any bank which maintains a correspondent
account with the Bank.
Section 2.15. Environmental. The Borrower is to the best of
its knowledge, in material compliance with the provisions of the
Environmental Laws.
Section 2.16. Survival of Representations and Warranties.
All of the representations and warranties by the Borrower shall
survive delivery of this Agreement and the Bond Documents. Any
investigation at any time made by or on behalf of the Bank will
not diminish the Bank's right to rely on the representations and
warranties.
ARTICLE III
REIMBURSEMENT AND OTHER PAYMENTS
Section 3.1. Letter of Credit. The Bank agrees, on the
terms and conditions hereinafter set forth, to issue and deliver
the Letter of Credit in favor of the Trustee in substantially the
form of Exhibit A attached hereto upon fulfillment of the
applicable conditions set forth in Article VII hereof. The Bank
agrees that any and all payments under the Letter of Credit will
be made with the Bank's own funds.
Section 3.2. Reimbursement and Other Payments. Except as
otherwise provided in Section 3.3 below, the Borrower shall pay
to the Bank:
(a) on or before 3:00 P.M. (prevailing Eastern time),
but after the honoring of a draw by the Bank, on the date
that any amount is drawn under the Letter of Credit, a sum
together with interest on such sum equal to such amount so
drawn under the Letter of Credit, plus to the extent
permitted by applicable law, any and all reasonable charges
and expenses that the Bank may pay or incur relative to the
Letter of Credit which have not been previously paid by or
on behalf of the Borrower; provided, further, the Borrower
and the Bank acknowledge that such amounts due under this
subparagraph (a) shall be due and payable and subject to
interest thereon (at a fluctuating interest rate per annum
equal at all times to the rate applicable to the Bonds plus
two percent (2%) even though no Event of Default has
occurred under Section 8.1 hereof);
(b) on demand, interest on any and all amounts
remaining unpaid by the Borrower when due hereunder from the
date such amounts become due until payment thereof in full,
at a fluctuating interest rate per annum equal at all times
to the rate applicable to the Bonds plus two percent (2%);
(c) on demand, any and all reasonable expenses
incurred by the Bank in enforcing any rights under this
Agreement and the other Security Instruments which have not
been previously paid by or on behalf of the Borrower; and
(d) on demand all charges, commissions, costs and
expenses set forth in Section 3.5 hereof which have not been
previously paid by or on behalf of the Borrower.
Section 3.3. Tender Advances.
(a) If the Bank shall make any payment of that portion
of the purchase price corresponding to principal and interest of
the Bonds drawn under the Letter of Credit pursuant to a Tender
Draft and the conditions set forth in Section 7.3 shall have been
fulfilled, such payment shall constitute a tender advance made by
the Bank to the Borrower on the date and in the amount of such
payment (a "Tender Advance"); provided that if the conditions of
said Section 7.3 have not been fulfilled, the amount so drawn
pursuant to the Tender Draft shall be payable in accordance with
the terms of Section 3.2(a) above. Notwithstanding any other
provision hereof, the Borrower shall repay the unpaid amount of
each Tender Advance, together with all unpaid interest thereon,
on the earlier to occur of (i) such date as any Bonds purchased
pursuant to a Tender Draft are resold as provided in
paragraph 3.3(d) hereof, (ii) on the date one year and one day
following the date of such Tender Advance, or (iii) the
Termination Date. The Borrower may prepay the outstanding amount
of any Tender Advance in whole or in part, together with accrued
interest to the date of such prepayment on the amount prepaid.
The Borrower shall notify the Bank prior to 11:00 A.M.
(prevailing Eastern time) on the date of such prepayment of the
amount to be prepaid.
(b) The Borrower shall pay interest on the unpaid
amount of each Tender Advance from the date of such Tender
Advance until such amount is paid in full, payable monthly, in
arrears, on the first day of each month during the term of each
Tender Advance and on the date such amount is paid in full, at a
fluctuating interest rate per annum in effect from time to time
equal to the rate applicable to the Bonds, provided that the
unpaid amount of any Tender Advance which is not paid when due
shall bear interest at the rate applicable to the Bonds plus two
percent (2%), payable on demand and on the date such amount is
paid in full.
(c) Pursuant to the Pledge Agreement, the Borrower has
agreed that, in accordance with the terms of the Indenture, Bonds
purchased with proceeds of any Tender Draft shall be delivered by
the Tender Agent to the Bank or its designee (or otherwise in the
manner provided in the Pledge Agreement, as applicable) to be
held by the Bank or its designee in pledge as collateral securing
the Borrower's payment obligations to the Bank hereunder. Bonds
so delivered to the Bank or its designee shall be registered in
the name of the Bank, or its designee, as pledgee of the
Borrower, as provided for in the Pledge Agreement, as applicable.
(d) Prior to or simultaneously with the resale of
Pledged Bonds, the Borrower shall prepay the then outstanding
Tender Advances (in the order in which they were made) by paying
to the Bank an amount equal to the sum of (a) the amounts
advanced by the Bank pursuant to the corresponding Tender Drafts
relating to such Bonds, plus (b) the aggregate amount of accrued
and unpaid interest on such Tender Advances. Such payment shall
be applied by the Bank in reimbursement of such drawings (and as
prepayment of Tender Advances resulting from such drawings in the
manner described below), and, upon receipt by the Bank of a
certificate completed and signed by the Trustee in substantially
the form of Annex F to the Letter of Credit, the Borrower
irrevocably authorizes the Bank to rely on such certificate and
to reinstate the Letter of Credit in accordance therewith. Funds
held by the Tender Agent as a result of sales of the Pledged
Bonds by the Remarketing Agent shall be paid to the Bank by the
Tender Agent to be applied to the amounts owing by the Borrower
to the Bank pursuant to this paragraph (d). Upon payment to the
Bank of the amount of such Tender Advance to be prepaid, together
with accrued interest on such Tender Advance to the date of such
prepayment on the amount to be prepaid, the principal amount
outstanding of Tender Advances shall be reduced by the amount of
such prepayment and interest shall cease to accrue on the amount
prepaid.
Section 3.4. [Intentionally Omitted].
Section 3.5. Commission and Fees.
(a) The Borrower shall pay to the Bank a commission at
the applicable Commission Rate per annum on the undrawn amount
available to be drawn under the Letter of Credit (computed on the
date that such commission is payable) from and including the date
of issuance of the Letter of Credit until the Stated Termination
Date, payable annually in advance on the date of issuance of the
Letter of Credit and on each anniversary of the issuance of the
Letter of Credit, subject to adjustment upon demand by the Bank
due to any event that may increase the cost to the Bank of
issuing or maintaining the Letter of Credit.
(b) The Borrower shall pay to the Bank, upon each
drawing under the Letter of Credit in accordance with the terms,
a fee of $100 per drawing.
(c) The Borrower shall pay to the Bank, upon transfer
of the Letter of Credit in accordance with its terms, a transfer
fee of $1,000.
Section 3.6. Increased Costs Due to Change in Law. In the
event of any change in any existing or future law, regulation,
ruling or other interpretation affecting the Bank which shall
either (a) impose, modify or make applicable any reserve, special
deposit, capital requirement, assessment or similar requirement
against the Letter of Credit or (b) impose on the Bank any other
condition regarding the Letter of Credit, and the result of any
event referred to in clause (a) or (b) above shall be to increase
the cost (including a reasonable allocation of resources) or
decrease the yield to the Bank of issuing or maintaining the
Letter of Credit (which increase in cost shall be the result of
the Bank's reasonable allocation of the aggregate of such cost
increases or yield decreases resulting from such events), then,
upon demand by the Bank, the Borrower shall immediately pay to
the Bank, from time to time as specified by the Bank, additional
amounts which shall be sufficient to compensate the Bank for such
increased cost or decreased yield. A statement of charges
submitted by the Bank, shall be conclusive, absent manifest
error, as to the amount owed.
Nothwithstanding the foregoing, the Bank shall make written
demand on Borrower for such additional amounts no later than 180
days after the Bank has knowledge of the event giving rise to
such additional payment, and, in the event the Bank fails to give
notice within such period, Borrower shall not have any obligation
to make any payment with respect to claims occurring more than
180 days prior to the giving of such written demand.
Section 3.7. Computation. All payments of interest,
commission and other charges under this Agreement shall be
computed on the per annum basis, based on a 360-day year days
calculated for the actual number of days elapsed.
Section 3.8. Payment Procedure. All payments made by the
Borrowers under this Agreement shall be made to the Bank in
lawful currency of the United States of America and in
immediately available funds at the Bank's offices in Richmond,
Virginia, or at another location as designated in writing by the
Bank to the Borrower, before 12:00 Noon (prevailing Eastern time)
on the date when due, except for payments made pursuant to
Section 3.2(a).
Section 3.9. Business Days. If the date for any payment
hereunder falls on a day which is not a Business Day, then for
all purposes of this Agreement the same shall be deemed to have
fallen on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of
payments of interest or commission, as the case may be.
Section 3.10. Reimbursement of Expenses. The Borrower will
pay all reasonable legal fees (computed without regard to any
statutory presumption) incurred by the Bank in connection with
the preparation, execution and delivery of this Agreement, the
Letter of Credit, the Security Instruments, any and all other
agreements and transactions contemplated hereby and thereby and
by the Bond Documents (including any amendments hereto or thereto
or consents or waivers hereunder or thereunder) and will also pay
all fees, charges or taxes for the recording or filing of
Security Instruments. The Borrower will also pay for all
reasonable out-of-pocket expenses of the Bank in connection with
the administration of the Letter of Credit, this Agreement and
the Security Instruments consisting of filing fees, if any. The
Borrower will, upon request, promptly reimburse the Bank for all
amounts expended, advanced or incurred by the Bank to collect or
satisfy any obligation of the Borrower under this Agreement or
any Security Instrument, or to enforce the rights of the Bank
under this Agreement, or any Security Instrument, which amounts
will include, without limitation, all court costs, reasonable
attorneys' fees, fees of auditors and accountants and out-of-
pocket investigation expenses incurred by the Bank in connection
with any such matters.
Section 3.11. Extension of Expiration Date. Except as
hereinafter provided, the Letter of Credit will expire on the
Stated Expiration Date. The Letter of Credit shall automatically
be extended for an additional one-year period from the then
applicable Stated Termination Date, unless the Bank shall have
notified the Borrower and the Trustee in writing at least 90 days
prior to the Stated Termination Date that the Bank will not
extend such applicable Stated Termination Date for an additional
one-year period from the then applicable Stated Termination Date.
Section 3.12. Obligations Absolute. The Obligations of the
Borrower under this Agreement shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of the
Letter of Credit, the Bonds, any of the other Bond
Documents, any of the Security Instruments or any other
agreement or instrument related thereto;
(b) any amendment or waiver of or any consent to
departure from the terms of the Letter of Credit, the Bonds,
any of the other Bond Documents, any of the Security
Instruments or any other agreement or instrument related
thereto;
(c) the existence of any claim, set off, defense or
other right which either the Borrower or the Issuer may have
at any time against the Trustee, any beneficiary or any
transferee of the Letter of Credit (or any Person for whom
the Trustee, any such beneficiary or any such transferee may
be acting), the Bank or any other Person, whether in
connection with this Agreement, the Security Instruments,
the Letter of Credit, the Bond Documents, the Project or any
unrelated transaction;
(d) any statement, draft or other document presented
under the Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect, or any statement
therein being untrue or inaccurate in any respect
whatsoever;
(e) the surrender, exchange or impairment of any
security for the performance or observance of any of the
terms of this Agreement; or
(f) any other circumstance which might otherwise
constitute a defense available to, or a discharge of the
Borrower, except subject to the qualification that
obligations may be reinstated upon bankruptcy.
ARTICLE IV
INSURANCE; NET PROCEEDS
Section 4.1. Security. As security for the full and timely
payment and performance by the Borrower of its obligations
hereunder, the Borrower shall on the date hereof deliver to the
Bank, the Security Instruments, conveying to the Bank duly
perfected liens upon and security interests in the Collateral
related thereto, subject only to Permitted Encumbrances.
Section 4.2. Casualty and Liability Insurance Required.
The Borrower will keep the Collateral continuously insured
against such risks as are customarily insured against by
businesses of like size and type engaged in the same or similar
operations (other than business interruption insurance)
including, without limiting the generality of any other covenant
contained herein or in the Bond Documents:
(a) an all-risk casualty and all-risk builder's
insurance on the Collateral in an amount not less than the full
insurable value thereof;
(b) general comprehensive liability insurance against
claims for bodily injury, death or property damage occurring on,
in or about the Collateral in amounts not less than $1,000,000
with respect to bodily injury to any one person, $1,000,000 with
respect to bodily injury to two or more persons in any one
accident and $1,000,000 with respect to property damage resulting
from any one occurrence;
(c) liability insurance with respect to the operation
of its facilities under the workers' compensation laws of the
State; and
(d) if at any time the site of the Project is in an
area that has been identified by the Secretary of Housing and
Urban Development as having special flood and mud slide hazards,
the Borrower shall purchase and maintain a flood insurance policy
satisfactory to the Bank; provided, however, that the insurance
so required may be provided by blanket policies now or hereafter
maintained by the Borrower.
Section 4.3. General Requirements Applicable to Insurance.
(a) Each insurance policy obtained in satisfaction of
the requirements of Section 4.2 hereof:
(i) shall be by such insurer (or insurers) as shall be
financially responsible, qualified to do business in the
State, and of recognized standing;
(ii) shall be in such form and have such provisions
(including, without limitation, the loss payable clause, the
deductible amount, if any, and the standard mortgagee
endorsement clause), as are generally considered standard
provisions for the type of insurance involved and are
acceptable in all respects to the Bank;
(iii) shall prohibit cancellation or substantial
modification, termination or lapse in coverage by the
insurer without at least 30 days' prior written notice to
the Bank;
(iv) shall provide that losses thereunder, prior to the
occurrence of an Event of Default (or event which, with
notice or lapse of time or both, would constitute an Event
of Default) hereunder shall be adjusted with the insurer by
the Borrower at its expense on behalf of the insured parties
and the decision of the Borrower as to any adjustment shall
be final and conclusive; and
(v) without limiting the generality of the foregoing,
all insurance policies carried on the Collateral shall name
the Bank as mortgagee, loss payee and a party insured
thereunder and any loss thereunder shall be made payable and
shall be applied as provided in Section 4.7 hereof.
(b) Prior to expiration of any such policy, the
Borrower shall furnish the Bank with evidence satisfactory to the
Bank that the policy or certificate has been renewed or replaced
or is no longer required by this Agreement.
Section 4.4. Advances by Bank. In the event the Borrower
shall fail to maintain, or cause to be maintained, the full
insurance coverage required hereunder or shall fail to keep the
Collateral in good repair and good operating condition, the Bank
may (but shall be under no obligation to), after 10 days, written
notice to the Borrower, and the failure of the Borrower to obtain
the required insurance or to commence (and complete with due
diligence) the making of the required repairs, renewals and
replacements, contract for the required policies of insurance and
pay the premiums on the same or make any required repairs,
renewals and replacements; and the Borrower agrees to reimburse
the Bank to the extent of the amounts so advanced with interest
thereon at a rate per annum equal to the Prime Rate plus two
percent (2%), from the date of advance to the date of
reimbursement.
Any amounts so advanced by the Bank shall become an
additional obligation of the Borrower secured by the Security
Instruments.
Section 4.5. Borrowers to Make Up Deficiency in Insurance
Coverage. The Borrower agrees that to the extent that they shall
not carry insurance required by Section 4.2 hereof, they shall
pay promptly to the Bank, for application in accordance with the
provisions of Section 4.7(b)(ii) hereof, such amount as would
have been received as Net Proceeds (as hereinafter defined) by
the Bank, under the provisions of Section 4.7(b)(ii) hereof had
such insurance been carried to the extent required.
Section 4.6. Eminent Domain. In the event that title to,
or the temporary use of, the Collateral or any part thereof shall
be taken by Eminent Domain, the Net Proceeds received as a result
of such Eminent Domain shall be applied as provided in
Section 4.7(b) hereof.
Section 4.7. Application of Net Proceeds of Insurance and
Eminent Domain.
(a) The Net Proceeds of the insurance carried pursuant
to the provisions of Sections 4.2(c), 4.2(d) and, if practicable,
7.1(k) hereof shall be applied by the Borrower toward
extinguishment of the defect or claim or satisfaction of the
liability with respect to which such insurance proceeds may be
paid.
(b) The Net Proceeds in excess of $100,000 of the
insurance carried with respect to the Collateral pursuant to the
provisions of Sections 7.1(k) (if not applied pursuant to
clause (a) of this Section 4.7), 4.2(a) and 4.2(b) hereof
(excluding the Net Proceeds of any business interruption
insurance, which shall be paid to the Borrower), and the Net
Proceeds resulting from Eminent Domain shall be paid and applied
as follows:
(i) If the Net Proceeds are with respect to the
Project and if Bonds shall then be outstanding under the
Indenture and no drawing under the Letter of Credit shall
theretofore have been presented, then in the manner and at
the times provided therefor in the Bond Documents; or
(ii) in all other cases, to the payment or reduction,
as the case may be, of the obligations of amounts
outstanding hereunder, with such allocations to principal,
interest, commissions, charges and expenses as the Bank may
elect.
"Net Proceeds" when used with respect to any insurance
proceeds or award resulting from, or other amount received in
connection with, Eminent Domain, shall mean the gross proceeds
from such proceeds, award or other amount, less all expenses
(including attorneys' fees) incurred in the realization thereof.
Section 4.8. Parties to Give Notice. In case of any
material damage to or destruction of all or any part of the
Collateral, the Borrower shall give prompt notice thereof to the
Bank. In case of a taking or proposed taking of all or any part
of the Collateral or any right therein by Eminent Domain, the
Borrower shall give prompt notice thereof to the Bank. Each such
notice shall describe generally the nature and extent of such
damage, destruction, taking, loss, proceeding or negotiations.
Section 4.9. Preservation of Security Interest. At the
request of the Bank at any time or from time to time, the
Borrower will cause to be executed by their duly authorized
officers any agreement, certificate, instrument, statement or
document, and to pay all connected costs, which the Bank may deem
necessary or advisable to create or preserve the security
interest of the Bank contemplated hereby and by the Security
Instruments.
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1. Notice of Default. The Borrower will furnish
to the Bank within five (5) days of becoming aware of a Default
or Event of Default written notice specifying the nature and
period of existence of the Default or Event of Default and the
action which the Borrower is taking or proposes to take to remedy
the Default or Event of Default.
ARTICLE VI
NEGATIVE COVENANTS
{RESERVED}.
ARTICLE VII
CONDITIONS TO ISSUANCE OF LETTER OF CREDIT
Section 7.1. Conditions on Issuance. On or prior to the
Closing Date, the Borrower shall have furnished to the Bank, in
form satisfactory to the Bank, the following:
(a) two executed counterparts of this Agreement and
the executed counterparts of the Security Instruments;
(b) executed counterparts of each of the Bond
Documents (except for the Bonds, as to which a specimen copy
may be furnished);
(c) opinion of Bond Counsel in form and substance
acceptable to the Bank;
(d) opinion of counsel for the Borrower dated the date
thereof addressed to, and substantially in the form attached
hereto as Exhibit B;
(e) the Certificate of the Borrower including
references to (i) articles of incorporation, by-laws or
other formation documents of the Borrower, (ii) resolutions
authorizing the execution, delivery and performance of the
appropriate Bond Documents and this Agreement,
(iii) incumbency and specimen signatures of officers, and
(iv) such other matters as the Bank may require;
(f) copies of all governmental approvals required in
connection with this transaction, including resolution of
the Issuer authorizing the issuance of the Bonds;
(g) evidence of payment to the Bank of the initial
annual letter of credit commission pursuant to Section 3.4
of this Agreement;
(h) Certificate of Good Standing of the Borrower
issued by the Texas Secretary of State;
(i) Appraisal of the Project acceptable to the Bank;
(j) A Phase I Environmental Report by an environmental
consultant approved by the Bank;
(k) a mortgagee's title insurance policy dated the
date of closing together with evidence that all premiums in
respect of such policy have been paid, which policy shall
(i) be in an amount equal to the initial stated amount of
the Letter of Credit, (ii) insure that the Deed to Secure
Debt creates a valid first lien on the property covered by
such Deed to Secure Debt free and clear of all defects and
encumbrances (except those acceptable to the Bank);
(iii) name the Bank as the insured party thereunder; (iv) be
in the form of ALTA Loan Policy 1970 (amended 10-17-70) or
other form approved by the Bank; and (v) contain such
endorsements and effective coverage as the Bank may
reasonably request;
(m) a physical survey containing maps or plats of the
perimeter or boundaries of the Project site and any other
property covered by the Deed to Secure Debt certified to the
Bank and the title insurance company, in a manner acceptable
to each of them, dated a date satisfactory to the Bank and
the title insurance company, by an independent
professionally licensed land surveyor satisfactory to the
Bank and the title insurance company, which survey shall
indicate the following: (i) the locations on such site of
all the buildings, structures and other improvements and the
established building setback lines insofar as the foregoing
affect the perimeter or boundary of such property; (ii) the
lines of streets abutting the site and width thereof;
(iii) all access and other easements appurtenant to the site
or necessary or desirable to use the site; (iv) all
roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical
inspection of the site or otherwise known to the surveyor;
(v) any encroachments on any adjoining property by the
building structures and improvements on the site; and (vi)
if the site is described as being on a filed map, a legend
relating the survey to said map, all in form satisfactory to
the Bank; together with certification from an independent
professionally licensed land surveyor satisfactory to the
Bank as to the location of the Project or any property
covered by the Deed to Secure Debt in any "special flood
hazard" area within the meaning of the Federal Flood
Disaster Protection Act of 1973;
(m) evidence of compliance with the insurance
requirements contained in Article IV hereof (upon which
there shall be affixed long form loss payable and mortgagee
clauses);
(n) executed counterpart of the Guaranty Agreement,
dated as of March 1, 1999, from Performance Food Group
Company to the Bank (the "Guaranty Agreement").
(o) opinion of counsel to Performance Food Group
Company in the form attached hereto as Exhibit C; and
(p) such other documents, instruments and
certifications as the Bank may require.
Section 7.2. Additional Conditions Precedent to Issuance
of the Letter of Credit.
The obligation of the Bank to issue the Letter of
Credit shall be subject to the further conditions precedent that
on the date of issuance (a) the following statements shall be
true and the Bank shall have received a certificate signed by an
authorized officer of the Borrowers, dated the date of issuance,
stating that:
(i) The representations and warranties contained in
Article II of this Agreement, Section 6 of the Pledge
Agreement and Section 2.02 of the Loan Agreement are correct
on and as of the date of issuance of the Letter of Credit as
though made on and as of such date; and
(ii) No event has occurred or would result from the
issuance of the Letter of Credit, which constitutes an Event
of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both;
and
(b) there shall have been no introduction of or change
in, or in the interpretation of, any law or regulation that would
make it unlawful or unduly burdensome for the Bank to issue the
Letter of Credit, no outbreak or escalation of hostilities or
other calamity or crisis affecting the Bank, no suspension of or
material limitation on trading on the New York Stock Exchange or
any other national securities exchange, no declaration of a
general banking moratorium by United States or Connecticut
banking authorities, and no establishment of any new restrictions
on transactions in securities or on banks materially affecting
the free market for securities or the extension of credit by
banks.
Section 7.3. Conditions Precedent to Each Tender Advance.
Each payment made by the Bank under the Letter of Credit pursuant
to a Tender Draft shall constitute a Tender Advance hereunder
only if on the date of such payment the following statements
shall be true:
(i) The representations and warranties contained in
Article II of this Agreement, Section 6 of the Pledge
Agreement and Section 2.02 of the Lease Agreement are
correct on and as of the date of such Tender Advance as
though made on and as of such date; and
(ii) No event has occurred or would result from such
Tender Advance, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
Unless the Borrower shall have previously advised the Bank in
writing or the Bank has actual knowledge that one or more of the
above statements is no longer true, the Borrower shall be deemed
to have represented and warranted, on the date of payment by the
Bank under the Letter of Credit pursuant to a Tender Draft, that
on the date of such payment the above statements are true and
correct.
ARTICLE VIII
DEFAULT
Section 8.1. Events of Default. Each of the following
shall constitute an Event of Default under this Agreement,
whereupon all Obligations of the Borrower hereunder, whether then
owing or contingently owing, will, at the option of the Bank or
its successors or assigns, immediately become due and payable by
the Borrower without presentation, demand, protest or notice of
any kind, all of which are hereby expressly waived, and the
Borrower will pay the reasonable attorneys' fees incurred by the
Bank, or its successors or assigns, in connection with such Event
of Default or recourse against any collateral held by the Bank,
or its successors or assigns, as security for the Obligations:
(a) Failure of the Borrower to pay when due any
payment of principal, interest, commission, charge or
expense referred to in Article III hereof; or
(b) The occurrence of an "Event of Default" under any
of the Bond Documents or the Guaranty Agreement; or
(c) Default shall occur in the performance of any
other covenant herein (not covered by clause (a) above) and
such Default shall continue for 30 days after written notice
thereof has been given to the Borrower by the Bank;
(d) Any representation or warranty made under this
Agreement, the Bond Documents, Security Instruments, or in
any certificate or statement furnished or made to the Bank
pursuant hereto or in connection herewith or with the Letter
of Credit hereunder, oral or written, shall prove to be
untrue or inaccurate in any material respect as of the date
on which such representation or warranty is made;
(e) This Agreement or any of the Bond Documents to
which the Borrower is a party shall cease to be legal, valid
and binding agreements enforceable against the Person
executing the same in accordance with the respective terms
thereof, except as may be limited by Debtor Laws, or shall
in any way be terminated or become or be declared
ineffective or inoperative or shall in any way whatsoever
cease to give or provide the respective liens, security
interests, rights, titles, interests, remedies, powers or
privileges intended to be created thereby, except as may be
limited by Debtor Laws;
(f) The Borrower shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor or
liquidator of itself or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy,
(iii) admit in writing that it is unable to pay its debts as
they become due or generally not pay its debts as they
become due, (iv) make a general assignment for the benefit
of creditors, (v) file a petition or answer seeking
reorganization or an arrangement with creditors or to take
advantage of any bankruptcy or insolvency laws, (vi) file an
answer admitting the material allegations of, or consent to,
or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or
(vii) take corporate action for the purpose of effecting any
of the foregoing;
(g) An involuntary petition or complaint shall be
filed against the Borrower seeking bankruptcy relief or
reorganization or the appointment of a receiver, custodian,
trustee, intervenor or liquidator of such Person, or all or
substantially all of its assets, and such petition or
complaint shall not have been dismissed within sixty
(60) days of the filing thereof; or an order, order for
relief, judgment or decree shall be entered by any court of
competent jurisdiction or other competent authority
approving or ordering any of the foregoing actions;
then upon the occurrence of an Event of Default and at any time
thereafter, the Bank may (a) pursuant to Section 9.1 of the
Indenture, advise the Trustee that an Event of Default has
occurred and instruct the Trustee to declare the principal of all
Bonds then outstanding and interest thereon to be immediately due
and payable, and (b) proceed hereunder, and under any of the
Security Instruments and, to the extent therein provided, under
the Bond Documents, in such order as it may elect and the Bank
shall have no obligation to proceed against any Person or exhaust
any other remedy or remedies which it may have and without
resorting to any other security, whether held by or available to
the Bank.
Upon the occurrence of an Event of Default, any obligation
of the Borrower to an Affiliate shall be subordinated to the
Obligations.
Section 8.2. No Remedy Exclusive. No remedy herein
conferred upon or reserved to the Bank is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder, under the Security
Instruments, or now or hereafter existing at law or in equity or
by statute.
Section 8.3. Anti-Marshaling Provisions. The right is
hereby given by the Borrower to the Bank to make releases
(whether in whole or in part) of all or any part of the
collateral under the Security Instruments agreeable to the Bank
without notice to, or the consent, approval or agreement of other
parties and interests, including junior lienors, which releases
shall not impair in any manner the validity of or priority of the
liens and security interest in the remaining collateral conferred
under such documents, nor release the Borrower from liability for
the obligations hereby secured. Notwithstanding the existence of
any other security interest in the collateral held by the Bank,
the Bank shall have the right to determine the order in which any
or all of the collateral shall be subjected to the remedies
provided herein, or in the Security Instruments. The Borrower
hereby waives any and all right to require the marshaling of
assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein or therein.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Indemnification.
(a) The Borrower hereby indemnifies and holds the Bank
and its Affiliates and all of their respective officers,
directors, employees, attorneys, consultants and agents
(collectively, the "Indemnities") harmless from and against any
and all claims, damages, losses, liabilities, costs or expenses
whatsoever which the Bank may incur (or which may be claimed
against the Bank by any Person) (i) by reason of or in connection
with the execution and delivery or transfer of, or payment or
failure to pay under, the Letter of Credit, provided that the
Borrower shall not be required to indemnify the Bank for any
claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (a) the gross
negligence or willful misconduct of the Bank in connection with
paying drafts presented under the Letter of Credit or (b) the
Bank's wrongful failure to pay under the Letter of Credit (other
than in connection with a court order) after the presentation to
it by the Trustee or a successor corporate fiduciary under the
Indenture of a sight draft and certificate strictly complying
with the terms and conditions of the Letter of Credit; or (ii) by
reason of or in connection with the execution, delivery or
performance of any of this Agreement, the Bond Documents, or any
transaction contemplated by any thereof.
(b) The Borrower hereby indemnifies and holds the Bank
harmless from and against any and all damages, penalties, fines,
claims, liens, suits, liabilities, costs (including cleanup
costs), judgments and expenses (including attorneys',
consultants' or experts' fees and expenses) of every kind and
nature suffered by or asserted against the Bank as a direct or
indirect result of any warranty or representation made by the
Borrower herein, being false or untrue in any material respect or
any requirement under any law, regulation or ordinance, local,
state, or federal, which requires the elimination or removal of
any hazardous materials, substances, wastes or other
environmentally regulated substances.
(c) The Borrower's obligations hereunder to the Bank
(collectively, the "Indemnified Matters") shall not be limited to
any extent by the term of this Agreement, and, as to any act or
occurrence prior to the termination of this Agreement which gives
rise to liability hereunder, shall continue, survive and remain
in full force and effect notwithstanding the termination of the
Bank's obligations hereunder.
Anything herein to the contrary notwithstanding,
nothing in this Section 9.1 is intended or shall be construed to
limit the Borrower's reimbursement obligations contained in
Article III hereof. Without prejudice to the survival of any
other obligation of the Borrower, the indemnities and obligations
of the Borrower contained in this Section 9.1 shall survive the
payment in full of amounts payable pursuant to Article III and
the Termination Date.
Section 9.2. Transfer of Letter of Credit. The Letter of
Credit may be transferred and assigned in accordance with the
terms of the Letter of Credit.
Section 9.3. Reduction of Letter of Credit.
(a) The Letter of Credit is subject to reduction
pursuant to its terms.
(b) If the amount available to be drawn under the
Letter of Credit shall be permanently reduced in accordance with
the terms thereof, then the Bank shall have the right to require
the Trustee to surrender the Letter of Credit to the Bank and to
issue on such date, in substitution for such outstanding Letter
of Credit, a substitute irrevocable letter of credit,
substantially in the form of the Letter of Credit but with such
changes therein as shall be appropriate to give effect to such
reduction, dated such date, for the amount to which the amount
available to be drawn under the Letter of Credit shall have been
reduced.
Section 9.4. Liability of the Bank. The Borrower, to the
extent permitted by applicable law, assume all risks of the acts
or omissions of the Trustee and any beneficiary or transferee of
the Letter of Credit with respect to its use of the Letter of
Credit. Neither the Bank nor any of its officers, directors,
employees, agents or consultants shall be liable or responsible
for:
(a) the use which may be made of the Letter of Credit
or for any acts or omissions of the Trustee or any
beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of
documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(c) payment by the Bank against presentation of
documents which do not comply with the terms of the Letter
of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or
(d) any other circumstances whatsoever in any way
related to the making or failure to make payment under the
Letter of Credit;
except only that the Borrower shall have a claim against the
Bank, and the Bank shall be liable to the Borrower, to the extent
but only to the extent, of any direct, as opposed to
consequential, damages suffered by the Borrower which the
Borrower proves were caused by (i) willful misconduct or gross
negligence of the Bank in determining whether documents presented
under the Letter of Credit complied with the terms of the Letter
of Credit or (ii) wrongful failure of the Bank to pay under the
Letter of Credit after the presentation to it by the Trustee or a
successor trustee under the Indenture of a sight draft and
certificate strictly complying with the terms and conditions of
the Letter of Credit. In furtherance and not in limitation of
the foregoing, the Bank may accept documents that appear on their
face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary.
Section 9.5. Successors and Assigns. This Agreement shall
be binding upon the Borrower and its successors and assigns and
all rights against the Borrower arising under this Agreement
shall be for the sole benefit of the Bank, its successors and
assigns, all of whom shall be entitled to enforce performance and
observance of this Agreement to the same extent as if they were
parties hereto.
Section 9.6. Notices. All notices, requests and demands
to or upon the respective parties hereto shall be deemed to have
been given or made when hand delivered or mailed first class,
certified or registered mail, postage prepaid, or by overnight
courier service, addressed as follows or to such other address as
the parties hereto shall have been notified pursuant to this
Section 9.6:
The Bank: First Union National Bank
7 North 8th Street
Richmond, Virginia 23219
Attention: Bonnie Banks
The Borrower: KMB Produce, Inc.
1142 Avenue South
Grand Prairie, Texas 75053
Attention: Tom Lovelace
with a copy to : Performance Food Group, Inc.
6800 Paragon Place, Suite 500
Richmond, Virginia 23230
Attention: John Austin
except in cases where it is expressly herein provided that such
notice, request or demand is not effective until received by the
party to whom it is addressed, in which event said notice,
request or demand shall be effective only upon receipt by the
addressee. Any change in notice addresses shall be effective
upon the giving of such new address to the respective party.
Section 9.7. Amendment. This Agreement may be amended,
modified or discharged only upon an agreement in writing of the
Borrower and the Bank.
Section 9.8. Effect of Delay and Waivers. No delay or
omission to exercise any right or power accruing upon any
default, omission or failure of performance hereunder shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Bank to exercise any remedy now or hereafter
existing at law or in equity or by statute, it shall not be
necessary to give any notice, other than such notice as may be
herein expressly required. In the event any provision contained
in this Agreement should be breached by any party and thereafter
waived by the other party so empowered to act, such waiver shall
be limited to the particular breach hereunder. No waiver,
amendment, release or modification of this Agreement shall be
established by conduct, custom or course of dealing, but solely
by an instrument in writing duly executed by the parties
thereunto duly authorized by this Agreement.
Section 9.9. Counterparts. This Agreement may be executed
simultaneously in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
Section 9.10. Severability. The invalidity or
unenforceability of any one or more phrases, sentences, clauses
or Sections contained in this Agreement shall not affect the
validity or enforceability of the remaining portions of this
Agreement, or any part thereof.
Section 9.11. Cost of Collection. The Borrower shall be
liable for the payment of all fees and out-of-pocket expenses,
including reasonable attorneys' fees (computed without regard to
any statutory presumption), incurred in connection with the
enforcement of this Agreement.
Section 9.12. Set Off. Upon the occurrence of an Event of
Default hereunder, the Bank is hereby authorized, without notice
to the Borrower, to set off, appropriate and apply any and all
monies, securities and other properties of the Borrower hereafter
held or received by or in transit to the Bank from or for the
Borrower, against the obligations of the Borrower irrespective of
whether the Bank shall have made any demand hereunder or under
any Security Instrument although such obligations may be
contingent or unmatured; provided, however, that the Bank hereby
waives any such right, and any other right which it may have at
law or otherwise to set off and apply such deposits at any time
held, if, when and after there shall be a drawing under the
Letter of Credit during the pendency of any proceeding by or
against the Borrower or the Issuer seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of either of them or either of their debts under any
law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, custodian, trustee or other
similar official for either of them or for any substantial part
of either of their property.
Section 9.13. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Georgia. The Borrower hereby acknowledges that the
Letter of Credit shall be governed by and construed in accordance
with Uniform Customs and Practice for Documentary Credits (1993
Revisions), International Chamber of Commerce Publication
No. 500.
Section 9.14. References. The words "herein", "hereof",
"hereunder" and other words of similar import when used in this
Agreement refer to this Agreement as a whole, and not to any
particular article, section or subsection.
Section 9.15. Taxes, Etc. Any taxes (excluding income or
similar taxes) payable or ruled payable by federal or state
authority in respect of the Letter of Credit, this Agreement or
the Security Instruments shall be paid by the Borrower upon
demand by the Bank, together with interest and penalties, if any.
Section 9.16. Consent to Jurisdiction, Venue; Waiver of Jury
Trial. In the event that any action, suit or other proceeding is
brought against the Borrower by or on behalf of the Bank to
enforce the observance or performance of any of the provisions of
this Agreement or of any of the Security Instruments, including
without limitation the collection of any amounts owing
thereunder, the Borrower hereby (i) irrevocably consents to the
exercise of jurisdiction over the Borrower and to the extent
permitted by applicable laws, its property, by any United States
District Court or State Court of Georgia, and (ii) irrevocably
waives any objection they might now or hereafter have or assert
to the venue of any such proceeding in any court described in
clause (i) above, and (iii) constitute and appoint the Secretary
of State of Georgia (and, so long as the Borrower shall appoint
and maintain any other qualified Person located within the State
of Georgia as agent for service of process and shall give notice
(effective upon receipt) thereof to the Bank, then such other
Person) for service of process upon it in connection with any
such proceeding.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OF THE SECURITY INSTRUMENTS OR THE ACTIONS OF THE BANK IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
Section 9.17 Assignment and Pledge of Agreement. Nothing
herein or in any other Bond Document shall prohibit the Bank from
pledging or assigning the obligations hereunder including the
Collateral therefor, to any Federal Reserve Bank in accordance
with applicable law. The Borrower hereby consents to any such
pledge or assignment pursuant to this Section.
IN WITNESS WHEREOF, the Borrower and the Bank have caused
this Agreement to be executed in their respective names, all as
of the date first above written.
THE BORROWER:
KMB PRODUCE, INC.
By:_________________________
Title:
ATTEST:
________________________
Title:
[Execution Page - Reimbursement Agreement]
THE BANK:
FIRST UNION NATIONAL BANK
By:___________________________
Title:_______________________
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") dated as of March
1, 1999 is given by PERFORMANCE FOOD GROUP COMPANY, a Tennessee
corporation (the "Guarantor") for the benefit of FIRST UNION
NATIONAL BANK, a national banking association organized under the
laws of the United States (the "Bank"). Unless otherwise herein
defined or the context hereof shall otherwise require, the
capitalized terms used herein shall have the respective meanings
specified in the Letter of Credit and Reimbursement Agreement,
dated as of March 1, 1999 (the "Reimbursement Agreement"),
between KMB Produce, Inc. (the "Borrower") and the Bank.
W I T N E S S E T H; T H A T:
WHEREAS, the Carrollton Payroll Development Authority (the
"Issuer") intends to issue its Industrial Development Revenue
Bonds (KMB Produce, Inc. Project), Series 1999, in the principal
amount of $9,000,000 (the "Bonds"); and
WHEREAS, the Bonds are to be issued under and pursuant to
Trust Indenture, dated as of even date herewith (the
"Indenture"), by and between the Issuer and First Union National
Bank, Richmond, Virginia, as trustee (the "Trustee"), a true and
correct copy of which has been delivered to the Guarantor, and
the Bonds are more particularly described in the Indenture; and
WHEREAS, the proceeds derived from the issuance of the Bonds
shall be loaned to the Borrower under a Loan Agreement, dated as
of March 1, 1999, between the Borrower and the Issuer, in order
to finance a manufacturing facility (the "Project"); and
WHEREAS, the Borrower has requested that the Bank issue an
irrevocable, direct-pay letter of credit (the "Letter of Credit")
pursuant to the Reimbursement Agreement; and
WHEREAS, the Borrower has agreed, inter alia, to reimburse
the Bank with respect to the obligations of the Borrower under
the Reimbursement Agreement; and
WHEREAS, as further security, the Borrower will enter into a
Deed to Secure Debt and Security Agreement, dated as of March 1,
1999, with the Bank and a Pledge Agreement, dated as of March 1,
1999, with the Bank (collectively, the "Security Documents"); and
WHEREAS, as additional security, the Bank has requested that
the Guarantor, who is an affiliate of the Borrower, guaranty the
obligations of the Borrower under the Reimbursement Agreement;
and
WHEREAS, the Guarantor desires that the Bank issue the
Letter of Credit as aforesaid and is willing to enter into this
Guaranty in order to induce the Bank to issue the Letter of
Credit;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration and in order to induce the Bank
to issue the Letter of Credit, the Guarantor DOES HEREBY AGREE
with the Bank as follows:
ARTICLE I.
REPRESENTATIONS
Section 1.1. Representations of Guarantor. The Guarantor
makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Authority. The Guarantor is a validly organized
and existing corporation under the laws of the State of
Tennessee with the power to enter into this Guaranty.
(b) Pending Litigation. There are no proceedings
pending, or to the knowledge of the Guarantor threatened,
against or affecting the Guarantor, in any court or before
any governmental authority or arbitration board or tribunal
which involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or
condition (financial or otherwise) of any Guarantor, or the
ability of the Guarantor to perform its obligations under
this Guaranty. The Guarantor is not in a material default
with respect to any order of any court or governmental
authority or arbitration board or tribunal which would
materially and adversely affect its business, financial
condition or ability to perform its obligations hereunder.
(c) Agreements Are Legal and Authorized. The
execution and delivery by the Guarantor of this Guaranty and
the compliance by the Guarantor with all of the provisions
hereof and thereof (i) is within the power of the Guarantor,
and (ii) will not conflict with or result in any breach of
any of the provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance
upon any property of the Guarantor under the provisions of,
law, any agreement or other instrument to which the
Guarantor is a party or by which the Guarantor may be bound,
or any license, judgment, decree, law, statute, order, rule
or regulation of any court or governmental agency, its
charter or by-laws, or body having jurisdiction over the
Guarantor or any of its respective activities or properties.
(d) Governmental Consent. The Guarantor nor any of
its businesses or properties, nor any relationship between
the Guarantor and any other person, nor any circumstances in
connection with the execution, delivery and performance by
the Guarantor of this Guaranty or the offer, issue, sale or
delivery of the Bonds, is such as to require the consent,
approval or authorization of, or the filing, registration or
qualification with, any governmental authority on the part
of the Guarantor other than those already obtained.
(e) No Defaults. No event has occurred and no
condition exists with respect to the Guarantor that would
constitute an "event of default" under this Guaranty or
which, with the lapse of time or with the giving of notice
or both, would become an "event of default" under this
Guaranty. The Guarantor is not in violation in any material
respect of any agreement or other instrument to which they
are a party or by which it may be bound, the violation of
which may have a material adverse effect on the Guarantor.
(f) Compliance with Law. The execution of this
Guaranty will not violate any laws, ordinances, governmental
rules or regulations to which the Guarantor is subject and
the Guarantor has not failed to obtain any licenses,
permits, franchises or other governmental authorizations
necessary to the ownership of any of its properties or to
the conduct of any of its businesses, which violation or
failure to obtain might materially and adversely affect the
properties, business, prospects, profits or condition
(financial or otherwise) of the Guarantor.
(g) Restrictions on the Guarantor. The Guarantor is
not a party to any contract or agreement, or subject to any
restriction, that materially and adversely affects the
businesses of the Guarantor.
(h) Disclosure. Neither the representations of the
Guarantor contained in this Guaranty, nor any written
statement relating to the Guarantor furnished by or on
behalf of the Guarantor to the Bank in connection with the
transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material
fact necessary to make the statements contained herein or
therein not misleading. There is no fact that the Guarantor
has not disclosed to the Bank in writing that materially and
adversely affects or in the future may (so far as the
Guarantor can now reasonably foresee) materially and
adversely affect the Project, or the properties, business,
prospects, profits or condition (financial or otherwise) of
the Guarantor, or the ability of the Guarantor to perform
its obligations under this Guaranty or any documents or
transactions contemplated hereby.
(i) Consideration. This Guaranty is necessary to
promote and further the business of the Borrower and the
assumption by the Guarantor of its obligations hereunder
will result in direct financial benefits to the Guarantor.
(j) Validity and Binding Effect. This Guaranty is a
valid and binding obligation of the Guarantor enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of
general application relating to or affecting the enforcement
of creditor's rights generally.
(k) Financial Information. The (i) consolidated
balance sheets of the Guarantor and its subsidiaries as of
December 31, 1997 and the related statements of income and
retained earnings and cash flow for the fiscal years then
ended and the (ii) unaudited consolidated balance sheet of
the Guarantor and its subsidiaries as of December 31, 1998
and related unaudited interim statements of revenue and
retained earnings, copies of which have been furnished to
the Bank, are complete and correct and fairly represent the
assets, liabilities and financial position of the Guarantor
and its subsidiaries as of such dates, and the results of
the operations and changes of financial position for the
periods then ended. All such financial statments including
the related schedules and notes thereto, have been prepared
in accordance with generally accepted accounting principles.
The Guarantor and its subsidiaries have no Debt (as defined
in the Credit Agreement), obligation or other unusual
forward or long-term commitment which is note fairly
reflected in the foregoing financial statements and the
notes thereto.
ARTICLE II.
GUARANTIES
Section 2.1. Guaranty of Payment. The Guarantor hereby
absolutely and unconditionally guarantees to the Bank the full
and timely payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations (as defined in the
Reimbursement Agreement) of the Borrower now or hereafter
existing under the Reimbursement Agreement or any of the Security
Documents, whether for principal, interest, fees, expenses or
otherwise. The Guarantor further agrees to pay any and all
expenses (including without limitation reasonable attorney's fees
and expenses) incurred by the Bank in enforcing or protecting its
rights against the Guarantor under the Reimbursement Agreement or
any of the Security Documents.
If the Bank shall fail to receive any such payment as and
when said payment becomes due and payable after any applicable
cure periods have expired, the Guarantor shall immediately pay to
the Bank at its office in Richmond, Virginia, in lawful money of
the United States of America, an amount equal to the required
payment. This Guaranty is an absolute, unconditional, continuing
and irrevocable guarantee of payment and not of collectability or
performance and is in no way conditioned or contingent upon any
attempt to collect from the Borrower. This Guaranty shall remain
in full force and effect without respect to future changes in
conditions, including change in law, until the Letter of Credit
shall have been canceled or shall have expired in accordance with
its terms. Subject to the provisions of Section 5.2 and unless
the Letter of Credit shall have been canceled or shall have
expired in accordance with its terms, each and every default in
payment by the Borrower pursuant to the terms of the
Reimbursement Agreement shall give rise to a separate cause of
action hereunder to the extent that each such default by the
Borrower would give rise to a separate claim or cause of action
under the Reimbursement Agreement and separate suits may be
brought hereunder as each cause of action arises.
The Guarantor hereby waives (i) notice of the acceptance
hereof, of any action taken or omitted in reliance hereon and of
any defaults by the Borrower in the payment of any such sums,
(ii) any presentment, demand, notice or protest of any kind,
(iii) any other act or thing or omission or delay to do any other
act or thing which might in any manner or to any extent vary the
risk of the Guarantor or which might otherwise operate as a
discharge of the Guarantor, and (iv) any right to require that
any action be brought against the Borrower or to require that
resort be had to any security whether held by or available to the
Bank or to any other guaranty, and any other applicable law to
require the Bank to attempt to recover against or realize upon
any Collateral (as defined in the Reimbursement Agreement).
The Guarantor agrees that it will not exercise any rights
that it may acquire by way of subrogation under the Reimbursement
Agreement, by any payment made under the Guaranty or otherwise,
until all the Obligations of the Borrower under the Reimbursement
Agreement then due and not paid or not performed shall have been
paid or performed in full. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when
all the Obligations of the Borrower under the Reimbursement
Agreement then due and not paid or not performed shall not have
been paid or performed in full, such amount shall be held in
trust for the benefit of the Bonds and shall forthwith be paid to
the Bank to be credited and applied upon the Obligations of the
Borrower under the Reimbursement Agreement, whether matured or
unmatured, in accordance with the terms thereof.
This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Obligations of the Borrower under the Reimbursement
Agreement is rescinded or is otherwise returned by the Bank upon
the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though such payment had not been made.
Section 2.2. Nature of Obligations. All obligations of the
Guarantor under this Guaranty shall be absolute, unconditional,
continuing and irrevocable irrespective of the genuineness,
validity, regularity or enforceability of the Reimbursement
Agreement, the Security Instruments or the Bonds and shall remain
in full force and effect until all amounts payable by the
Borrower pursuant to the terms of the Reimbursement Agreement
shall have been paid or shall be deemed to have been paid in
accordance with the terms thereof and, until such payment, or the
occurrence of those conditions upon which payment shall be deemed
to have occurred, shall not be affected, modified, impaired or
discharged upon the happening from time to time of any event,
including, without limitation, any of the following, whether or
not with notice to or the consent of the Guarantor:
(a) any lack of validity or enforceability of the
Letter of Credit, the Bonds, any of the other Bond
Documents (as defined in the Reimbursement Agreement),
any of the Security Instruments (as defined in the
Reimbursement Agreement) or any other agreement or
instrument related thereto;
(b) any amendment or waiver of or any consent to
departure from the terms of the Letter of Credit, the
Bonds, any of the other Bond Documents, any of the
Security Instruments or any other agreement or
instrument related thereto;
(c) the existence of any claim, set off, defense
or other right which any of the Guarantor or the
Borrower may have at any time against the Trustee, any
beneficiary or any transferee of the Letter of Credit
(or any person for whom the Trustee, any such
beneficiary or any such transferee may be acting), the
Bank or any other person, whether in connection with
Reimbursement Agreement, the Security Instruments, the
Letter of Credit, the Bond Documents, the Project (as
defined in the Reimbursement Agreement) or any
unrelated transaction;
(d) any statement, draft or other document
presented by or on behalf of the Borrower or the
Guarantor under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect, or any statement therein being untrue or
inaccurate in any respect whatsoever;
(e) the surrender, exchange or impairment of any
security for the performance or observance of any of
the terms of Reimbursement Agreement; or
(f) any other circumstance which might otherwise
constitute a defense available to, or a discharge of,
the Borrower or the Guarantor, except subject to the
qualification that obligations may be reinstated upon
bankruptcy, notwithstanding payment in full of the
Borrower's obligations to the Bank.
Notwithstanding anything herein to the contrary, the waivers
extended by the Guarantor above shall not be construed to prevent
the Guarantor from pursuing in a separate and unrelated action
any claims that the Guarantor may have against the Bank.
ARTICLE III
AFFIRMATIVE COVENANTS
Section 3.1 Financial Statements, Reports and Documents.
The Guarantor will deliver the following to the Bank:
(a) Annual Statements. As soon as available and in any
event within 120 days after the end of each Fiscal Year, review
quality financial statements reflecting their operations during
such Fiscal year, including, without limitation, a balance sheet,
profit and loss statement and statement of cash flows, with
supporting schedules, all in reasonable detail and reviewed by an
independent certified public accountant acceptable to the Bank.
(b) Quarterly Reports. As soon as available and in
any event within 45 days after the end of each quarters of each
Fiscal Year, unaudited management-prepared quarterly financial
statements, including, without limitation, a balance sheet,
profit and loss statement and statement of cash flows, with
supporting schedules, all in reasonable detail and prepared in
conformity with GAAP.
(c) No-Default Certificate. Simultaneously with the
delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of an officer of the
Guarantor stating whether any Default or Event of Default exists
on the date of such certificate and, if any Default or Event of
Default then exists, setting forth the details thereof and the
action which the Guarantor is taking or proposes to take with
respect thereto.
(d) Proxy Statements. Promptly upon the mailing
thereof to the shareholders of the Guarantor generally, copies of
all financial statements, reports, proxy statement so mailed,
provided that copies of financial statements and other reports
delivered solely to shareholders who are also officers or
employees of the Guarantor in their capacities as such need not
be delivered hereunder unless included within the scope of a
request for additional information made pursuant to Section 5.1
(g) hereof.
(e) SEC Reports. Promptly upon filing thereof, copies
of all registration statements (other than the exhibits thereto
and any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Guarantor
shall have filed with the Securities Exchange Commission.
(f) Tax Returns. Within 30 days of filing, (i)
complete copies of federal and state tax returns, as applicable,
together with all schedules thereto, each of which shall be
signed and certified by an officer of the Guarantor to be true,
correct and complete copies of such returns, and (ii) any
extensions or requests for extensions filed with the appropriate
taxing body.
(g) Additional Information. From time to time, such
additional information regarding the financial position or
business of the Guarantor as the Bank may reasonably request.
Section 3.2. Incorporation of Covenants. The Guarantor
shall observe and remain in compliance with the covenants,
agreements, ratios and other matters contained in Articles VIII,
IX and X of the that certain Credit Agreement, dated as of March
5, 1999 (the "Credit Agreement"), by and among the Guarantor, the
lenders therein named and the Bank, as administrative agent, as
amended from time to time. In the event that the Credit
Agreement shall expire or otherwise be terminated, the covenants,
agreements, ratios and other matters contained in Articles VIII,
IX and X of the Credit Agreement (and any similar provisions
added in a supplement) shall be incorporated herein and made a
part hereof in the form contained immediately preceding such
expiration or termination date.
ARTICLE IV.
ACTIONS AND PROCEEDINGS
Section 4.1. Actions and Proceedings. Any legal action or
proceeding against the Guarantor with respect to this Guaranty
may be brought in such of the courts of competent jurisdiction of
the state or federal courts located in the Commonwealth of
Virginia as the Bank or its successors and assigns, as the case
may be, may elect, and, by execution and delivery of this
Guaranty, the Guarantor irrevocably submits to the nonexclusive
jurisdiction of such courts for purposes of legal actions and
proceedings hereunder and, in case of any such legal action or
proceeding brought in the above-named Virginia courts, hereby
irrevocably consent, during such time, to the service of process
out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by personal service
to the Guarantor, or by any other means permitted by applicable
law. If it becomes necessary for the purpose of service of
process out of any such courts, the Guarantor shall take all such
action as may be required to authorized a special agent to
receive, for and on behalf of them, service of process in any
such legal action or proceeding, and shall take all such action
as may be necessary to continue said appointment in full force
and effect so that the Guarantor will at all times have an agent
for service of process for the above purposes in any Virginia
Court. To the extent permitted by law, final judgment (a copy
certified by the court that has rendered the judgment shall be
conclusive evidence of the fact and of the amount of any
indebtedness of the Guarantor to the Bank) against the Guarantor
in any such legal action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on an unsatisfied
judgment. To the extent that Guarantor has or hereafter may
acquire any immunity from jurisdiction of any of the above-named
courts or from any legal process therein, the Guarantor hereby
irrevocably waives such immunity, and the Guarantor hereby
irrevocably waives and agrees not to assert by way of motion, as
a defense, or otherwise, in any legal action or proceeding
brought hereunder in any of the above-named courts, (i) the
defense of sovereign immunity, (ii) any claim that it is not
personally subject to the jurisdiction of the above-named courts
by reason of sovereign immunity or otherwise, (iii) that such
action or proceeding is brought in an inconvenient forum, that
venue for the action or proceeding is improper or that this
Guaranty or the Reimbursement Agreement may not be enforced in or
by such courts, or (iv) any defense that would hinder or delay
the levy, execution or collection of any amount to which any
party hereto is entitled pursuant to a final judgment of any
court having jurisdiction. Nothing in these provisions shall
limit any right of the Bank to bring actions, suits or
proceedings in the courts of any other jurisdiction. The
Guarantor expressly acknowledges that the foregoing waiver is
intended to be irrevocable under the laws of the Commonwealth of
Virginia and of the United States of America.
ARTICLE V.
EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default. If any of the following
events occurs and is continuing, it is hereby defined and
declared to be and constitute an "event of default":
(a) failure by the Guarantor to make any payment
required to be made under Section 2.1 as and when the same
shall become due and payable;
(b) any representation or warranty made by Guarantor
under this Guaranty or under any document, report,
certificate or financial statement furnished by Guarantor in
connection herewith or therewith or pursuant hereto or
thereto shall prove to have been false or misleading as at
the time made; provided, however, to the extent such
misrepresentation was not a material inducement to the Bank
to enter into the Reimbursement Agreement and is reasonably
susceptible to cure, it shall not constitute an Event of
Default hereunder so long as the Guarantor proceed in good
faith and with due diligence to effect a cure and is able to
cure such misrepresentation within thirty (30) days from the
date of notice from the Bank;
(c) failure by the Guarantor to observe or perform (or
cause to be observed or performed) any other covenant or
agreement to be performed or observed by them hereunder or
under any document or certificate furnished by the Guarantor
in connection herewith or therewith or pursuant hereto or
thereto; provided, however, if the Guarantor has undertaken
and continue to cure any such failure and such failure is
curable with future due diligence, there shall exist no
Event of Default hereunder so long as such failure is cured
within 30 days after the Guarantor has received written
notice of such failure from the Bank;
(d) the commencement of a case or other proceeding,
either voluntary or involuntary, with respect to the
Guarantor under applicable bankruptcy, insolvency or other
similar law, seeking the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of the Guarantor or for
all or substantially all of its property, or seeking the
winding-up, dissolution or liquidation of the Guarantor'
affairs; and
(e) the Guarantor shall have defaulted under any other
material agreement (including, without limitation, the
Credit Agreement) to which it is a party, and such default
would have a material adverse effect on its ability to
perform its obligations hereunder.
Section 5.2. Remedies. Whenever any event referred to in
Section 5.1 shall have occurred and be continuing, the Bank may
proceed immediately hereunder, and the Bank shall have the right
to proceed first and directly against the Guarantor under this
Guaranty without proceeding against or exhausting any other
remedies which it may have and without resorting to any other
security held by the Bank.
Section 5.3. No Remedy Exclusive. The rights and remedies
conferred herein shall not be considered exclusive of any other
remedies available but each of such rights and remedies shall be
cumulative and shall be in addition to any other rights and
remedies given under this Guaranty or now or hereafter existing
at law or in equity or by statute. No delay or omission to
exercise any right or remedy shall be construed to be a waiver
thereof but any such right or remedy may be exercised from time
to time and as often as may be deemed expedient.
Section 5.4. Counsel Fees and Expenses. The Guarantor
agrees to pay on demand therefor all costs, expenses and fees,
including all attorney's fees, which may be incurred by the Bank
following all applicable cure periods in enforcing or attempting
to enforce this Guaranty following any event of default hereunder
whether the same shall be enforced by suit or otherwise.
Section 5.5. Guaranty for Benefit of the Bank. This
Guaranty is entered into by the Guarantor for the benefit of the
Bank its respective successors and assigns under the
Reimbursement Agreement, all of whom shall be entitled to enforce
performance and observance of this Guaranty (subject to the
provisions of Section 5.2) and of the guaranties and other
provisions herein contained to the same extent as if they were
parties signatory hereto.
Section 5.6. Remedies Cumulative. The terms of this
Guaranty may be enforced as to any one or more breaches, either
separately or cumulatively.
ARTICLE VI.
WAIVERS, AMENDMENTS AND MISCELLANEOUS
Section 6.1. Waivers, Amendments and Modifications. If any
provision contained in this Guaranty should be breached by the
Guarantor and thereafter waived by the Bank, such waiver shall be
limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. No waiver,
amendment, release or modification of this Guaranty shall be
established by conduct, custom or course of dealing, but solely
by an instrument in writing duly executed by the parties hereto.
Section 6.2. Effective Date. The obligations of the
Guarantor hereunder shall arise absolutely and unconditionally
when the Letter of Credit shall have been issued and delivered by
the Bank as contemplated in the Reimbursement Agreement.
Section 6.3. Governing Law. This Guaranty and the rights
and obligations of the parties hereto (including third-party
beneficiaries) shall be governed, construed and interpreted
according to the laws of the Commonwealth of Virginia.
Section 6.4. Entire Agreement; Counterparts. This Guaranty
constitutes the entire agreement, and supersedes all prior
agreements, both written and oral, between the parties with
respect to the subject matter hereof and may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
Section 6.5. Severability. If any provision of this
Guaranty shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any
other provision or provisions hereof or any constitution or
statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in
any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
Section 6.6. Notices. Any notice or notices which may be
or are required to be given to the Guarantor or the Bank
respecting any matter pertaining to this Guaranty shall be in
writing and shall be deemed to have been given when delivered or
mailed by first class registered or certified mail, return
receipt requested, postage prepaid, and, if given to the
Guarantor, addressed to the Guarantor at 6800 Paragron Place,
Suite 500, Richmond, Virginia 23230; or, if given to the Bank,
addressed to the Bank at First Union National Bank, 7 North 8th
Street, Richmond, Virginia 23219. Any party may, by notice given
hereunder, designate any further or different address to which
subsequent notices or other communications shall be sent and to
whose attention the same shall be directed.
Section 6.7. Captions. The captions and headings of the
several Articles and Sections of this Guaranty are for
convenience only and in no way define, limit or describe the
scope or intent of any provisions hereof.
Section 6.8. Certain Rules of Interpretation. In addition
to the words and terms defined herein, certain other words and
terms used herein shall have the same meanings as assigned them
in the Indenture unless the context or use clearly indicates
another or different meaning or intent. Words of the masculine
gender shall be deemed and construed to include correlative words
of the feminine and neuter genders.
"Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Guaranty
and not solely to the particular Article, Section or subdivision
hereof in which such word is used.
Reference herein to an Article number (e.g., Article II) or
a Section number (e.g., Section 4.2) shall be construed to be a
reference to the designated Article number or Section number
hereof unless the context or use clearly indicates another or
different meaning or intent.
Section 6.9. Successors. This Guaranty shall be binding
upon the undersigned Guarantor and its successors and assigns and
shall inure to the benefit of, and shall be enforceable by, the
Bank and its successors and assigns until payment in full of all
amounts payable by the Issuer pursuant to the terms of the
Reimbursement Agreement.
Section 6.10. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY
AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY, THE
TRANSACTIONS CONTEMPLATED BY THE REIMBURSEMENT AGREEMENT OR THIS
GUARANTY OR ANY DEALINGS BETWEEN THE GUARANTOR AND THE BANK. The
scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate
to the subject matter of this transaction, including without
limitation, contract claims, tort claims, breach of duty claims,
and all other common law and statutory claims. The Guarantor
acknowledges that this waiver is a material inducement to the
Bank to enter into a business relationship with the Guarantor,
the Borrower and its Affiliates. The Guarantor represents and
warrants that it has reviewed this waiver with its legal counsel,
and that such waiver is knowingly and voluntarily given following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED, EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, REPLACEMENTS, REAFFIRMATIONS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY, THE REIMBURSEMENT AGREEMENT OR
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THE REIMBURSEMENT AGREEMENT. In the event of
litigation, this Guaranty may be filed as a written consent to a
trial by the court.
IN WITNESS WHEREOF, the Guarantor has executed this
Guaranty, and to evidence its acceptance the Bank has caused this
Guaranty to be executed all as of the date first above written.
PERFORMANCE FOOD GROUP COMPANY
By:___________________________
Name:
Title:
ACCEPTED as of March 1, 1999,
FIRST UNION NATIONAL BANK
By:___________________________
Title:
Performance Food Group Company
Richmond, Virginia
Gentlemen:
Re: Registration Statements Nos. 333-12223, 33-72400, 333-78229,
333-24679 and 333-68877
With respect to the subject registration statements, we acknowledge our
awareness of the use therein of our report dated May 2, 1999 related to
our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is
not considered a part of a registration statement prepared or certified by
an accountant or a report prepared or certified by an accountant within
the meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/KPMG LLP
Richmond, Virginia
May 14, 1999
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