UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 11, 1999
Specialty Foods Acquisition Corporation
(Exact name of registrant as specified in its charter)
State of Delaware 33-68958 75-2488183
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(State or otherjurisdiction (Commission File No.) (I.R.S. Employer
of incorporation or organization) Identification No.)
520 Lake Cook Road, Suite 550, Deerfield, IL 60015
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (847) 405-5300
ITEM 5. OTHER EVENTS
1. On June 11, 1999, Specialty Foods Corporation ("SFC") announced the
completion if its bond exchange as previously described in Note 5 to the
condensed consolidated financial statements of the Form 10-Q for the
quarter ended March 31, 1999. The bond exchange of SFC's parent company,
Specialty Foods Acquisition Corporation ("SFAC"), was also completed
on the same date. The bond exchanges include provisions for a new
corporate structure and for the extension of the initial cash pay interest
date of SFAC's 13% Senior Secured Discount Debentures from February 2000
to December 2004.
2. Subsequent to the completion of the bond exchanges, SFC entered into
amended and restated agreements which extend the maturity dates of its
Accounts Receivable, Revolving Credit and Term Loan
facilities from January 2000 to January 2001.
ITEM 7. FINACIAL STATEMENTS AND EXHIBITS
Exhibits No.
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99.2* Amended and Restated Revolving Credit
Agreement, dated as of June 11, 1999, among
certain subsidiaries of SFC New Holdings, Inc., as
the Revolving Credit Borrowers, Various Financial
Institutions, as the Revolving Credit Lenders, DLJ
Capital Funding, Inc. as the Syndication Agent and
the Collateral Agent for the Revolving Credit
Lenders, ABN Amro Bank N.V. as the Administrative
Agent for the Revolving Credit Lenders and Banque
Paribas, as the Documentation Agent for the
Revolving Credit Lenders.
99.3* Amended and Restated Term Loan Agreement, dated as
of June 11, 1999, among SFC New Holdings, Inc., as
the Borrower, Various Financial Institutions, as
the Term Loan Lenders, DLJ Capital Funding, Inc.
as the Syndication Agent and Collateral Agent for
the Term Loan Lenders, ABN Amro Bank N.V. as the
Administrative Agent for the Term Loan Lenders and
Banque Paribas, as the Documentation Agent for the
Term Loan Lenders.
99.4* SFC Master Trust Amendment No. 7 to each of the
Pooling Agreement and Receivables Sale Agreement
and Amendment No. 2 to the Servicing Agreement.
99.5* Amendment No. 3 to Series 1998-1 Supplement and Amendment No. 1
to Series 1998-1 Certificate Purchase Agreement.
99.6* Amendment No. 4 to Series 1998-1 Supplement.
99.7* Performance Guaranty by SFC New Holdings, Inc. as
Master Servicer, in favor of Specialty Foods Finance Corporation
99.8* Press release dated June 14, 1999 of SFC
SIGNATURES
Pursuant to requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
SPECIALTY FOODS ACQUISITION CORPORATION
(Registrant)
Date: June 30, 1999 By: /s/ Robert L. Fishbune
----------------------
Robert L. Fishbune
Vice President and Chief
Financial Officer
____________
* Filed herewith.
EXHIBIT 99.2
U.S. $122,801,241
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT,
dated as of June 11, 1999,
(amending and restating the Revolving Credit Agreement,
dated as of March 16, 1998),
among
CERTAIN SUBSIDIARIES OF
SFC NEW HOLDINGS, INC.
as the Revolving Credit Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Revolving Credit Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and
Collateral Agent for the Revolving Credit Lenders,
ABN AMRO BANK N.V.,
as the Administrative Agent for the Revolving Credit Lenders,
and
BANQUE PARIBAS,
as the Documentation Agent for the Revolving Credit Lenders.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEAD ARRANGER AND BOOK MANAGER
|| TABLE OF CONTENTS
SECTION PAGE
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms 3
1.2. Use of Defined Terms 18
1.3. Cross-References 18
1.4. Accounting and Financial Determinations 19
ARTICLE IICONTINUATION OF EXISTING REVOLVING CREDIT LOANSAND
REVOLVING CREDIT LETTERS OF CREDIT;REVOLVING CREDIT COMMITMENTS,
BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
2.1. Revolving Credit Commitments 19
2.1.1. Revolving I Credit Commitment 19
2.1.2. Revolving II Credit Commitment 20
2.1.3. Commitment to Issue Revolving Credit
Letters of Credit 20
2.1.4. Revolving Credit Lenders Not Permitted or
Required To Make Revolving Credit Loans
or Issue or Participate in Revolving
Credit Letters of Credit Under Certain
Circumstances 20
2.2. Reduction of Commitment Amounts 21
2.2.1. Optional 21
2.2.2. Mandatory 22
2.3. Borrowing Procedure 22
2.3.1. Revolving I Credit Loans and Revolving II
Credit Loans 22
2.3.2. Swing Line Loans 23
2.4. Continuation and Conversion Elections 24
2.5. Funding 25
2.6. Register; Revolving Credit 25
ARTICLE IIIREPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments 26
3.2. Interest Provisions 29
3.2.1. Rates 29
3.2.2. Post-Maturity Rates 29
3.2.3. Payment Dates 30
3.3. Fees 30
3.3.1. Commitment Fee 30
3.3.2. Other Fees 31
3.3.3. Revolving Credit Letter of Credit Fee 31
3.3.4. Revolving Credit Letter of Credit Issuing
Fee 31
3.3.5. Revolving Credit Letter of Credit
Administrative Fee 32
3.3.6. Deferred Fees 32
3.3.7. Amendment Fee 32
ARTICLE IVREVOLVING CREDIT LETTERS OF CREDIT
4.1. Issuance Requests 32
4.2. Issuances and Extensions 33
4.3. Expenses 33
4.4. Other Revolving Credit Lenders=
Participation 33
4.5. Disbursements 35
4.6. Reimbursement 35
4.7. Deemed Disbursements 36
4.8. Nature of Reimbursement Obligations 36
4.9. Increased Costs; Indemnity 37
ARTICLE VCERTAIN LIBO RATE AND OTHER PROVISIONS
5.1. LIBO Rate Lending Unlawful 39
5.2. Deposits Unavailable 39
5.3. Increased LIBO Rate Loan Costs, etc. 39
5.4. Funding Losses 40
5.5. Increased Capital Costs 41
5.6. Taxes 41
5.7. Payments, Computations, etc. 44
5.8. Sharing of Payments. 45
5.9. Setoff 46
5.10. Replacement of Revolving Credit Lenders 46
ARTICLE VICONDITIONS TO RESTATEMENT EFFECTIVENESS
6.1. Effectiveness 47
6.1.1. Execution of Counterparts. 47
6.1.2. Resolutions, etc. 47
6.1.3. Affirmation and Consent. 48
6.1.4. Restatement Effective Date Certificate 48
6.1.5. Perfection Certificate 48
6.1.6. Opinions of Counsel 48
6.1.7. Closing Fees, Expenses, etc. 49
6.2. All Revolving Credit Extensions 49
6.2.1. Compliance with Warranties, No Default,
etc. 49
6.2.2. Credit Request 50
6.2.3. Satisfactory Legal Form 50
ARTICLE VIIREPRESENTATIONS AND WARRANTIES
ARTICLE VIIICOVENANTS
8.1. Affirmative Covenants 51
8.1.1. Affirmative Covenants in Term Loan
Agreement 51
8.1.2. Use of Proceeds 51
8.1.3. Additional Collateral 51
8.2. Negative Covenants 53
8.2.1. Negative Covenants in Term Loan Agreement 53
ARTICLE IXEVENTS OF DEFAULT
9.1. Listing of Events of Default 54
9.1.1. Non-Payment of Obligations 54
9.1.2. Breach of Warranty 54
9.1.3. Non-Performance of Certain Covenants and
Obligations 54
9.1.4. Non-Performance of Other Covenants and
Obligations 54
9.1.5. Default on Other Indebtedness 54
9.1.6. Judgments 55
9.1.7. Pension Plans 55
9.1.8. Change in Control 55
9.1.9. Bankruptcy, Insolvency, etc. 55
9.1.10. Impairment of Security, etc. 56
9.1.11. Term Loan Agreement Event of Default 56
9.2. Action if Bankruptcy, etc. 56
9.3. Action if Other Event of Default 57
ARTICLE XTHE AGENTS
10.1. Actions 57
10.2. Funding Reliance, etc. 58
10.3. Exculpation 58
10.4. Successor 59
10.5. Revolving Credit Loans and Revolving
Credit Letters of Credit by each Agent
and the Collateral Agent 60
10.6. Credit Decisions 60
10.7. Copies, etc. 61
10.8. The Syndication Agent, the Documentation
Agent, the Administrative Agent and the
Collateral Agent 61
ARTICLE XIMISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc. 62
11.2. Notices 63
11.3. Payment of Costs and Expenses 63
11.4. Indemnification 64
11.5. Survival 66
11.6. Severability 66
11.7. Headings 66
11.8. Execution in Counterparts, Effectiveness,
etc. 66
11.9. Governing Law; Entire Agreement 66
11.10. Successors and Assigns 66
11.11. Sale and Transfer of Revolving Credit
Loans and Revolving Credit Commitments;
Participations in Revolving Credit Loans
and Revolving Credit Commitments 67
11.11.1. Assignments 67
11.11.2. Participations 69
11.12. Other Transactions 70
11.13. Forum Selection and Consent to
Jurisdiction 71
11.14. Waiver of Jury Trial 71
11.15. Confidentiality 72
11.16. Liens on Sold Assets 73
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Revolving Credit Percentages
EXHIBIT A-1 - Form of Revolving I Credit Loan Note
EXHIBIT A-2 - Form of Revolving II Credit Loan Note
EXHIBIT B - Form of Swing Line Note
EXHIBIT C - Form of Irrevocable Standby Revolving Credit
Letter of Credit
EXHIBIT D - Form of Borrowing Request
EXHIBIT E - Form of Continuation/Conversion Notice
EXHIBIT F - Form of Issuance Request
EXHIBIT G - Form of Lender Assignment Agreement
EXHIBIT H - Form of Opinion of Counsel to the Revolving
Credit Borrowers
EXHIBIT I-1 - Form of SFC New Holdings Guaranty
EXHIBIT I-2 - Form of Subsidiary Guaranty
EXHIBIT J-1 - Form of Revolving Credit Borrowers Pledge
Agreement
EXHIBIT J-2 - Form of Subsidiary Pledge Agreement
EXHIBIT K-1 - Form of Revolving Credit Borrowers Security
Agreement
EXHIBIT K-2 - Form of Subsidiary Security Agreement
EXHIBIT L - Form of Revolving Credit Mortgage
EXHIBIT M - Form of Exemption Certificate
EXHIBIT N - Form of Perfection Certificate
EXHIBIT O - Form of Affirmation and Consent
EXHIBIT P - Form of Restatement Effective Date Certificate
||
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated
as of June 11, 1999, amending and restating the Existing
Revolving Credit Agreement (as defined below), is among each of
the subsidiaries of SFC New Holdings, Inc. signatory hereto
(collectively, the Revolving Credit Borrowers), the various
financial institutions as are or may become parties hereto
(collectively, the Revolving Credit Lenders), DLJ Capital
Funding, Inc. (?DLJ?), as syndication agent (the Syndication
Agent), and as collateral agent (the Collateral Agent), for the
Revolving Credit Lenders, ABN Amro Bank N.V. (ABN), as
administrative agent (the Administrative Agent), for the
Revolving Credit Lenders and Banque Paribas, as documentation
agent (the Documentation Agent) for the Revolving Credit Lenders
(the Syndication Agent and the Administrative Agent are sometimes
referred to herein as the Agents and each as an Agent).
W I T N E S S E T H:
WHEREAS, the Revolving Credit Borrowers are engaged directly
and through their respective various Subsidiaries (such
capitalized term and other terms used herein, to have the
meanings provided in Section 1.1) in the business of production
and distribution of breads, buns, rolls, sweet goods, cookies and
other baked goods and operation of retail cafes;
WHEREAS, the Revolving Credit Borrowers are parties to a
Revolving Credit Agreement, dated as of March 16, 1998 (as
heretofore amended, modified and supplemented and in effect from
time to time, the Existing Revolving Credit Agreement), among the
Revolving Credit Borrowers, the various financial institutions
parties thereto on the Closing Date (the Existing Revolving
Credit Lenders), Revolving Credit Borrowers, the various
financial institutions parties thereto, DLJ, as syndication agent
and collateral agent for such financial institutions, ABN, as
administrative agent for such financial institutions, and Summit
Bank, as documentation agent for such financial institutions,
pursuant to which the Existing Revolving Credit Lenders and the
Issuer extended Revolving Credit Commitments to make Revolving
Credit Extensions to the Revolving Credit Borrowers on the terms
and conditions set forth therein;
WHEREAS, Specialty Foods Corporation, a Delaware corporation
(?SFC?), and SFC New Holdings, Inc., a Delaware corporation (New
Holdings) and the indirect owner of all of the Capital Stock of
each Revolving Credit Borrower (SFC and New Holdings are
collectively referred to as the Existing Term Loan Borrowers),
are parties to a Term Loan Agreement, dated as of March 16, 1998
(as heretofore amended, modified and supplemented and in effect
from time to time, the Existing Term Loan Agreement), among the
Existing Term Loan Borrowers, the various financial institutions
parties thereto on the Closing Date (the Existing Term Loan
Lenders) DLJ, as syndication agent and collateral agent for such
financial institutions, ABN, as administrative agent for such
financial institutions, and Summit Bank, as documentation agent
for such financial institutions, pursuant to which the Existing
Term Loan Lenders made term loans (the Existing Term Loans) to
SFC on the Closing Date on the terms and conditions set forth
therein;
WHEREAS, the Revolving Credit Borrowers have requested that
the Existing Revolving Credit Agreement be amended and restated
in its entirety to become effective and binding on the Revolving
Credit Borrowers pursuant to the terms of this Agreement, and the
Revolving Credit Lenders (including the Existing Revolving Credit
Lenders) have agreed (subject to the terms of this Agreement) to
amend and restate the Existing Revolving Credit Agreement in its
entirety to read as set forth in this Agreement, and it has been
agreed by the parties to the Existing Revolving Credit Agreement
that (a) the Revolving Credit Commitments of the Existing
Revolving Credit Lenders under Existing Revolving Credit
Agreement shall be extended or advanced upon the amended and
restated terms and conditions contained in this Agreement, and
(b) any outstanding Revolving Credit Extensions made and other
Revolving Credit Obligations outstanding under the Existing
Revolving Credit Agreement shall be governed by and deemed to be
outstanding under the amended and restated terms and conditions
contained in this Agreement, with the intent that the terms of
this Agreement shall supersede the terms of the Existing
Revolving Credit Agreement (which shall hereafter have no further
effect upon the parties thereto, other than for accrued fees and
expenses, and indemnification provisions, accrued and owing under
the terms of the Existing Revolving Credit Agreement on or prior
to the Restatement Effective Date or arising under the terms of
the Existing Revolving Credit Agreement);
WHEREAS, concurrently with the amendment and restatement of
the Existing Revolving Credit Agreement, the Term Loan Lenders
will amend and restate in its entirety the Existing Term Loan
Agreement with the Existing Term Loan Borrowers;
WHEREAS, the Revolving Credit Loans and Revolving Credit
Obligations shall continue to be and shall be fully guaranteed
pursuant to the SFC New Holdings Guaranty and the Subsidiary
Guaranty and fully secured by, among other things, each Security
Agreement and each Pledge Agreement; and
WHEREAS, the Revolving Credit Lenders are willing, on the
terms and subject to the conditions hereinafter set forth
(including Article VI), to so amended and restate the Existing
Revolving Credit Agreement and to continue to extend Revolving
Credit Commitments, make the Revolving Credit Loans to the
Revolving Credit Borrowers and issue and participate in the
Revolving Credit Letters of Credit;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree that
the Existing Revolving Credit Agreement, together with all
schedules and Exhibits thereto, is hereby amended and restated in
its entirety to read, effective as of the Restatement Effective
Date, in the form of this Agreement, together with all schedules
and Exhibits hereto:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. Except where the context
otherwise requires, capitalized terms used in this Agreement
(whether or not underscored) shall have the meanings ascribed
thereto in the Term Loan Agreement as in effect on the date
hereof, and the following terms shall have the following meanings
(such meanings to be equally applicable to the singular and
plural forms thereof):
?ABN? is defined in the preamble.
Administrative Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Administrative Agent pursuant to Section 10.4 and
Section 9.4 of the Term Loan Agreement.
Affiliate of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan).
With respect to any Revolving Credit Lender, a Person shall be
deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 51% or more of
the securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managing general partners.
With respect to all other Persons, a Person shall be deemed to be
Controlled by any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election
of directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or
otherwise.
agents is defined in the preamble.
Agreement means, on any date, the Existing Revolving Credit
Agreement as amended and restated on the Restatement Effective
Date and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect on such
date.
Alternate Base Rate means, for any day and with respect to
all Base Rate Loans, the higher of: (a) 0.50% per annum above the
latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as most recently publicly announced or established
by the Administrative Agent in Chicago, Illinois, as its base
rate.(The base rate is a rate set by the Administrative Agent
based upon various factors including the Administrative Agents
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans,
which may be priced at, above or below such announced rate.) Any
change in the reference rate established or announced by the
Administrative Agent shall take effect at the opening of business
on the day of such establishment or announcement.
Amendment No. 2" means Consent and Amendment No. 2 to Term
Loan Agreement and Revolving Credit Agreement, dated as of June
11, 1999, among SFC, New Holdings, the Existing Revolving Credit
Borrowers, the other Obligors (as defined in the Existing Term
Loan Agreement) party thereto, the lenders under the Existing
Term Loan Agreement and the Existing Revolving Credit Agreement,
DLJ, as syndication agent and collateral agent for such lenders,
ABN, as administrative agent for such lenders, and Summit Bank,
as documentation agent for such lenders.
Applicable Revolving Loan Margin means (a) in the case of
Base Rate Loans, 2.25% per annum and (b) in the case of LIBO Rate
Loans, 3.25% per annum.
Assignee Revolving Credit Lender is defined in Section
11.11.1.
Authorized Officer means, relative to any Revolving Credit
Borrower or any other Revolving Credit Obligor, those of its
officers whose signatures and incumbency shall have been
certified to the Administrative Agent, the Collateral Agent and
the Revolving Credit Lenders pursuant to Section 6.1.1; provided,
that no officer shall qualify as an Authorized Officer unless
such officer has the title of vice president or above.
Base Rate Loan means a Revolving Credit Loan bearing
interest at a fluctuating rate determined by reference to the
Alternate Base Rate.
Borrowing means the Revolving Credit Loans of the same type
and, in the case of LIBO Rate Loans, having the same Interest
Period made by the relevant Revolving Credit Lenders or the Swing
Line Lender on the same Business Day and pursuant to the same
Borrowing Request in accordance with Section 2.1.
Borrowing Request means a Revolving Credit Loan request and
certificate duly executed by an Authorized Officer of any
Revolving Credit Borrower, substantially in the form of Exhibit D
hereto.
Business Day means (a) any day which is neither a Saturday
or Sunday nor a legal holiday on which banks are authorized or
required to be closed in Houston, Texas, Chicago, Illinois or New
York City, and (b) with respect to Borrowings of Interest Periods
with respect to, payments of principal and interest in respect
of, and conversions of Base Rate Loans into, LIBO Rate Loans, any
day on which dealings in Dollars are carried on in the London
interbank market.
?CERCLA? means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
?CERCLIS? means the Comprehensive Environmental Response
Compensation Liability Information System List.
Change in Control shall have the meaning set forth in the
Term Loan Agreement, as in effect on the date hereof.
Closing Date means the date on which the initial Revolving
Credit Extensions were made, which occurred on March 16, 1998.
Code means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
Collateral Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Collateral Agent pursuant to Section 10.4 and
Section 9.4 of the Term Loan Agreement.
Continuation/Conversion Notice means a notice of
continuation or conversion and certificate duly executed by an
Authorized Officer of any Revolving Credit Borrower,
substantially in the form of Exhibit E hereto.
Controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control
which, together with each Revolving Credit Borrower, its
Subsidiaries or the Term Loan Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or Section
4001 of ERISA.
Covered Taxes means any Taxes other than Taxes imposed with
respect to the Administrative Agent or any Revolving Credit
Lender by reason of a connection between the Administrative Agent
or such Revolving Credit Lender and the relevant taxing
jurisdiction, including without limitation, a connection arising
from such Person being or having been a citizen or resident of
such jurisdiction, or having or having had a permanent
establishment or fixed place of business or bing or having been
engaged in business therein, but excluding a connection arising
solely from such Person having executed, delivered, performed its
obligations or received any payment under, or enforced, this
Agreement or any Revolving Credit Note. Taxes shall be
considered Covered Taxes of such Taxes are imposed on (i) the
Administrative Agent solely by reason of a connection between a
Revolving Credit Lender (but not the Administrative Agent) and
the relevant taxing jurisdiction or (ii) a Revolving Credit
Lender solely by reason of a connection between the
Administrative Agent or any other Revolving Credit Lender (but
not such Revolving Credit Lender) and the relevant taxing
jurisdiction.
Default means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
Disbursement Date is defined in Section 4.5.
Disclosure Schedule means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented or
otherwise modified from time to time by any Revolving Credit
Borrower with the written consent of the Required Revolving
Credit Lenders.
?DLJ? is defined in the preamble.
Documentation Agent is defined in the preamble.
Dollar and the sign $ mean lawful money of the United
States.
Domestic Office means, relative to any Revolving Credit
Lender, the office of such Revolving Credit Lender designated as
such below its signature hereto or in a Lender Assignment
Agreement or such other office of a Revolving Credit Lender (or
any successor or assign of such Revolving Credit Lender) within
the United States as may be designated from time to time by
notice from such Revolving Credit Lender, as the case may be, to
each other Person party hereto.
Environmental Laws means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
Event of Default is defined in Section 9.1.
Existing Revolving Credit Agreement is defined in the second
recital.
Existing Revolving Credit Lenders is defined in the second
recital.
Existing Term Loan Agreement is defined in the third
recital.
Existing Term Loan Borrowers is defined in the third
recital.
Existing Term Loan Lenders is defined in the third recital.
Existing Term Loans is defied in the third recital.
Federal Funds Rate means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which
is a Business Day, the average of the quotations for such
day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized
standing selected by it.
F.R.S. Board means the Board of Governors of the Federal
Reserve System or any successor thereto.
GAAP is defined in Section 1.4.
Guaranties means, collectively, the SFC New Holdings
Guaranty, the Subsidiary Guaranty and each Guaranty executed and
delivered pursuant to Section 8.1.3, in each case, as amended,
supplemented, restated or otherwise modified from time to time.
Hazardous Material means
(a) any hazardous substance, as defined by CERCLA;
(b) any hazardous waste, as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
herein, hereof, hereto, hereunder and similar terms
contained in this Agreement or any other Revolving Credit
Document refer to this Agreement or such other Revolving Credit
Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or
such other Revolving Credit Document.
including means including without limiting the generality of
any description preceding such term, and, for purposes of this
Agreement and each other Revolving Credit Document, the parties
hereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
Indemnified Liabilities is defined in Section 11.4.
Indemnified Parties is defined in Section 11.4.
Interest Period means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO Rate
Loan pursuant to Section 2.3 or 2.4 and ending on (but excluding)
the day which numerically corresponds to such date one, two,
three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such
month), as any Revolving Credit Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.4; provided,
however, that
(a) Interest Periods in effect at any one time shall
not have expiration dates occurring on more than five
different dates;
(b) Interest Periods commencing on the same date for
Revolving Credit Loans comprising part of the same Borrowing
shall be of the same duration;
(c) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless, if such
Interest Period applies to LIBO Rate Loans, such next
following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period may end later than the Stated
Maturity Date for the applicable Revolving Credit Loan.
Issuance Request means a request and certificate duly
executed by the chief executive, accounting or financial
Authorized Officer of any Revolving Credit Borrower, in
substantially the form of Exhibit F attached hereto (with such
changes thereto as may be agreed upon from time to time by the
Syndication Agent, the Issuer and the Revolving Credit Borrowers)
or a properly completed application for a Revolving Credit Letter
of Credit on the applicable Issuer's standard form, executed by
the chief executive, accounting or financial Authorized Officer
of any Revolving Credit Borrower.
Issuer means any affiliate, unit or agency of ABN in its
capacity as issuer of the Revolving Credit Letters of Credit, or
any other Revolving Credit Lender which has agreed to issue one
or more Revolving Credit Letters of Credit at the request of the
Administrative Agent (which shall, at any Revolving Credit
Borrower's request, notify the Revolving Credit Borrowers from
time to time of the identity of such other Revolving Credit
Lender).
Lender Assignment Agreement means a lender assignment
agreement substantially in the form of Exhibit G hereto.
LIBO Rate means, relative to any Interest Period for LIBO
Rate Loans, the rate of interest equal to the average (rounded
upwards, if necessary, to the nearest 1/100 of 1%) of the rates
per annum at which Dollar deposits in the approximate amount of
the Revolving Credit Loan to be made as, or converted into, a
LIBO Rate Loan by the Administrative Agent and having a maturity
comparable to such Interest Period would be offered to the
Administrative Agent in the London interbank market at its
request at approximately 11:00 a.m.(London time) two Business
Days prior to the commencement of such Interest Period.
LIBO Rate Loan means a Revolving Credit Loan bearing
interest, at all times during an Interest Period applicable to
such Loan, at a fixed rate of interest determined by reference to
the LIBO Rate (Reserve Adjusted).
LIBO Rate (Reserve Adjusted) means, relative to any Loan to
be made, continued or maintained as, or converted into, a LIBO
Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be adjusted automatically as to all LIBO Rate
Loans then outstanding as of the Closing Date of any change in
the LIBOR Reserve Percentage.
LIBOR Office means, relative to any Revolving Credit Lender,
the office of such Revolving Credit Lender designated as such on
Schedule II hereto or designated in the Lender Assignment
Agreement or such other office of a Revolving Credit Lender (or
any successor or assign of such Revolving Credit Lender) as
designated from time to time by notice from such Revolving Credit
Lender to the Revolving Credit Borrowers and the Administrative
Agent, whether or not outside the United States, which shall be
making or maintaining LIBO Rate Loans of such Revolving Credit
Lender hereunder.
LIBOR Reserve Percentage means, relative to any Interest
Period for LIBO Rate Loans, the percentage (expressed as a
decimal, rounded upward to the next 1/100 of 1%) in effect on
such day (whether or not applicable to any Lender) under
regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any
emergency supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently defined as
Eurocurrency Liabilities in Regulation D of the F.R.S. Board).
Lien means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property,
or any filing or recording of any instrument or document in
respect to the foregoing (other than liens arising from the
filing of precautionary UCC financing statements in connection
with obligations under leases that are not Capitalized Lease
Liabilities to the extent that such financing statements relate
solely to the property subject to such lease obligations and
where the debtor named on such financing statements is not the
legal or beneficial owner of the described property), to secure
payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature
whatsoever that has the practical effect of creating a security
interest in property.
New Holdings is defined in the third recital.
Organic Document means, relative to any Revolving Credit
Obligor, its certificate of incorporation, its by-laws and all
shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of capital stock.
Participant is defined in Section 11.11.
PBGC means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
Pension Plan means a pension plan, as such term is defined
in section 3(2) of ERISA, which is subject to Title IV of ERISA
(other than a multiemployer plan as defined in section 4001(a)(3)
of ERISA), and to which any Revolving Credit Borrower or any
corporation, trade or business that is, along with any Revolving
Credit Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under section 4069 of
ERISA.
Person means any natural person, corporation, limited
liability company, partnership, joint venture, joint stock
company, firm, association, trust or unincorporated organization,
government, governmental agency, court or any other legal entity,
whether acting in an individual, fiduciary or other capacity.
Perfection Certificate means the Perfection Certificate
executed and delivered by an Authorized Officer of each Revolving
Credit Borrower pursuant to Section 6.1.5 or Section 7.1.7 of the
Term Loan Agreement, substantially in the form of Exhibit N
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
Plan means any Pension Plan or Welfare Plan.
Pledge Agreements means, collectively, the Revolving Credit
Borrowers Pledge Agreement, the Subsidiary Pledge Agreement and
each Pledge Agreement executed and delivered pursuant to
Section 8.1.3, in each case as amended, supplemented, restated or
otherwise modified from time to time.
Quarterly Payment Date means the last day of each January,
April, July and October, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing with July,
1999.
Refunded Swing Line Loans is defined in clause (b) of
Section 2.3.2.
Reimbursement Obligation is defined in Section 4.6.
Related Fund means, with respect to any Revolving Credit
Lender that is a fund that invests in loans, any other fund that
invests in loans and is managed by the same investment advisor or
investment manager as such Revolving Credit Lender.
Release means a release, as such term is defined in CERCLA.
Required Revolving Credit Lenders means, at any time,
Revolving I Credit Lenders having more than 50% of the sum of the
Revolving I Credit Commitments and Revolving II Credit Lenders
having more than 50% of the sum of the Revolving II Credit
Commitments; provided, that in the event that the Revolving I
Credit Commitment or the Revolving II Credit Commitment is
terminated (pursuant to Section 9.2 or Section 9.3 or otherwise),
until such time as all Revolving I Credit Loans and Revolving II
Credit Loans, as the case may be, are paid in full, Revolving I
Credit Lenders having more than 50% of the outstanding principal
amount of all Revolving I Credit Loans and Revolving II Credit
Lenders having more than 50% of the outstanding principal amount
of all Revolving II Credit Loans, as applicable.
Resource Conservation and Recovery Act means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as in effect from time to time.
Restatement Effective Date means the date when all of the
conditions set forth in Section 6.1 shall have been satisfied.
Restatement Effective Date Certificate means the certificate
executed and delivered by the Borrowers on the Restatement
Effective Date, substantially in the form of Exhibit P hereto.
Revolving Credit Borrowers is defined in the preamble.
Revolving Credit Borrowers Pledge Agreement means the Pledge
Agreement executed and delivered by each Revolving Credit
Borrower, substantially in the form of Exhibit J-1 hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Revolving Credit Borrowers Security Agreement means the
Security Agreement executed and delivered by each Revolving
Credit Borrower, substantially in the form of Exhibit K-1 hereto,
as amended, supplemented, amended and restated or otherwise
modified.
Revolving Credit Commitment means a Revolving I Credit
Commitment, a Revolving II Credit Commitment or a Swing Line Loan
Commitment.
Revolving Credit Commitment Amount means a Revolving I
Credit Commitment Amount or a Revolving II Credit Commitment
Amount or a Swing Line Loan Commitment Amount.
Revolving Credit Commitment Termination Date means the
Revolving I Credit Commitment Termination Date or the Revolving
II Credit Commitment Termination Date.
Revolving Credit Commitment Termination Event means
(a) the occurrence of any Default described in clauses
(a) through (d) of Section 9.1.9 with respect to any
Revolving Credit Borrower; or
(b) the occurrence and continuance of any other Event
of Default and either
(i) the declaration of the Revolving Credit Loans
to be due and payable pursuant to Section 9.3, or
(ii) in the absence of such declaration, the
giving of notice by the Administrative Agent, acting at
the direction of the Required Revolving Credit Lenders,
to the Revolving Credit Borrowers that the Revolving
Credit Commitments have been terminated.
Revolving Credit Documents means this Agreement, the Notes,
each Pledge Agreement, each Security Agreement, each Guaranty and
each Revolving Credit Revolving Credit Mortgage.
Revolving Credit Extension means and includes
(a) the advancing of any Revolving I Credit Loans by
the Revolving Credit Lenders in connection with a Borrowing,
(b) the advancing of any Revolving II Credit Loans by
the Revolving Credit Lenders in connection with a Borrowing,
(c) the advancing of any Swing Line Loans by the Swing
Line Lender in connection with a Borrowing, and
(d) any issuance or extension by an Issuer of a
Revolving Credit Letter of Credit.
Revolving Credit Lenders is defined in the preamble.
Revolving Credit Letter of Credit is defined in Section 4.1.
Revolving Credit Letter of Credit Commitment Amount means,
on any date, a maximum amount of $25,000,000, as such amount may
be reduced from time to time pursuant to Section 2.2.
Revolving Credit Letter of Credit Outstandings means, at any
time, an amount equal to the sum of
(a) the then aggregate amount which is undrawn and
available under all issued and outstanding Revolving Credit
Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
Revolving Credit Loan means, as the context may require, a
Revolving I Credit Loan, a Revolving II Credit Loan, or a Swing
Line Loan, of any type.
Revolving Credit Mortgages means, collectively, each
Revolving Credit Mortgage executed and delivered pursuant to the
terms of this Agreement, including Section 8.1.3, substantially
in the form of Exhibit L hereto, as amended, supplemented,
restated or otherwise modified from time to time.
Revolving Credit Note means, as the context may require, a
Revolving I Credit Note, a Revolving II Credit Note or a Swing
Line Note
Revolving Credit Obligations means all obligations (monetary
or otherwise) of the Revolving Credit Borrowers and each other
Revolving Credit Obligor arising under or in connection with this
Agreement, the Revolving Credit Notes and each other Revolving
Credit Document or any other document made, delivered or given in
connection therewith.
Revolving Credit Obligor means any Revolving Credit
Borrower, each Subsidiary of each Revolving Credit Borrower
(other than any Inactive Subsidiary), the Special Purpose
Subsidiary or any other Person (other than any Agent, the
Collateral Agent or any Revolving Credit Lender) obligated under,
or otherwise a party to, any Revolving Credit Document, and
Revolving Credit Obligors means all of such Persons,
collectively.
Revolving Credit Percentage means, relative to any Revolving
Credit Lender, the applicable percentage relating to the
Revolving I Credit Commitments or the Revolving II Credit
Commitments, as the case may be, for such Revolving Credit Lender
as set forth on Schedule II hereto or set forth in the Lender
Assignment Agreement, as such percentage may be adjusted from
time to time pursuant to Lender Assignment Agreement(s) executed
by such Revolving Credit Lender and its Assignee Revolving Credit
Lender(s) and delivered pursuant to Section 11.11. A Revolving
Credit Lender shall not have any Revolving Credit Commitment to
make Revolving I Credit Loans or Revolving II Credit Loans (as
the case may be) if its percentage under the respective column
heading is zero (0%). As used herein, Revolving Credit
Percentage as it relates to a Revolving I Credit Lender's
Percentage of Revolving Credit Letter of Credit Outstandings or
Swing Line Loans shall be equal to such Revolving I Credit
Lender's Percentage of Revolving I Credit Loans.
Revolving I Credit Commitment means, relative to any
Revolving Credit Lender, such Revolving Credit Lender's
obligation to make Revolving I Credit Loans pursuant to clause
(a) of Section 2.1.1 and to issue (in the case of an Issuer) or
participate in (in the case of all Revolving Credit Lenders)
Revolving Credit Letters of Credit pursuant to Section 2.1.3.
Revolving I Credit Commitment Amount means, on any date,
$25,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
Revolving I Credit Commitment Availability means, on any
date, the excess of
(a) the then Revolving I Credit Commitment Amount,
over
(b) the sum of
(i) the outstanding principal amount of all
Revolving I Credit Loans on such date,
plus
(ii) the Revolving Credit Letter of Credit
Outstandings on such date,
plus
(iii) the outstanding principal amount of all
Swing Line Loans on such date.
Revolving I Credit Commitment Termination Date means the
earliest of
(a) January 31, 2001;
(b) the date on which the Revolving I Credit
Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2; and
(c) the date on which any Revolving Credit Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Revolving I Credit Commitments shall terminate automatically
and without any further action.
Revolving I Credit Lender means any Revolving Credit Lender
having a Revolving I Credit Commitment.
Revolving I Credit Loan is defined in Section 2.1.2.
Revolving I Credit Note means a joint and several promissory
note of the Revolving Credit Borrowers payable to the order of
any Revolving Credit Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of the Revolving Credit Borrower to such Revolving
Credit Lender resulting from outstanding Revolving I Credit
Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
Revolving II Credit Commitment means, relative to any
Revolving Credit Lender, such Revolving Credit Lender's
obligation to make Revolving II Credit Loans pursuant to
Section 2.1.2.
Revolving II Credit Commitment Amount means, on any date,
$97,801,241, as such amount may be reduced from time to time
pursuant to Section 2.2.
Revolving II Credit Commitment Availability means, on any
date, the excess of
(a) the then Revolving II Credit Commitment Amount,
over
(b) the outstanding principal amount of all Revolving
II Credit Loans on such date.
Revolving II Credit Commitment Termination Date means the
earliest of
(a) June 11, 1999;
(b) the date on which the Revolving II Credit
Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2; and
(c) the date on which any Revolving Credit Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c),
the Revolving II Credit Commitments shall terminate automatically
and without any further action.
Revolving II Credit Lender means any Revolving Credit Lender
having a Revolving II Credit Commitment.
Revolving II Credit Loan is defined in Section 2.1.2.
Revolving II Credit Note means a joint and several
promissory note of the Revolving Credit Borrowers payable to the
order of any Revolving Credit Lender, in the form of Exhibit A-2
hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Revolving Credit Borrower to such Revolving
Credit Lender resulting from outstanding Revolving II Credit
Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
Security Agreements means, collectively, the Revolving
Credit Borrowers Security Agreement, the Subsidiary Security
Agreement and each Security Agreement executed and delivered from
time to time pursuant to Section 8.1.3, in each case as amended,
supplemented, restated or otherwise modified from time to time.
SFC is defined in the third recital.
SFC New Holdings Guaranty means the Guaranty executed and
delivered by the Term Loan Borrower, substantially in the form of
Exhibit I-1 hereto, as amended, supplemented, amended and
restated or otherwise modified.
Stated Amount of each Revolving Credit Letter of Credit
means the total amount available to be drawn under such Revolving
Credit Letter of Credit upon the issuance thereof.
Stated Expiry Date is defined in Section 4.1.
Stated Maturity Date means:
(a) in the case of any Revolving I Credit Loan,
January 31, 2001; and
(b) in the case of any Revolving II Credit Loan,
January 31, 2001.
Subsidiary means, with respect to any Person, any
corporation, partnership or other business entity of which more
than 50% of the outstanding capital stock (or other ownership
interest) having ordinary voting power to elect a majority of the
board of directors, managers or other voting members of the
governing body of such entity (irrespective of whether at the
time capital stock (or other ownership interest) of any other
class or classes of such entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly
or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise
specifically requires, the term Subsidiary shall be a reference
to a Subsidiary of any Revolving Credit Borrower.
Subsidiary Guaranty means the Guaranty executed and
delivered by each Subsidiary Guarantor, substantially in the form
of Exhibit I-2 hereto, as amended, supplemented, amended and
restated or otherwise modified.
Subsidiary Pledge Agreement means the Pledge Agreement
executed and delivered by each Subsidiary of the Term Loan
Borrower (other than any Inactive Subsidiary and the Receivables
Subsidiary), substantially in the form of Exhibit J-2 hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Subsidiary Security Agreement means the Security Agreement
executed and delivered by each U.S. Subsidiary of a Revolving
Credit Borrower (other than any Inactive Subsidiary),
substantially in the form of Exhibit K-2 hereto, as amended,
supplemented, amended and restated or otherwise modified.
Swing Line Lender means, ABN, in its capacity as Swing Line
Lender hereunder.
Swing Line Loan is defined in clause (b) of Section 2.1.1.
Swing Line Loan Commitment means, with respect to the Swing
Line Lender, the Swing Line Lender's obligation pursuant to
clause (b) of Section 2.1.1 to make Swing Line Loans and, with
respect to each Revolving I Credit Lender with a Revolving I
Credit Commitment to make Revolving I Credit Loans (other than
the Swing Line Lender), such Revolving Credit Lender's obligation
to participate in Swing Line Loans pursuant to Section 2.3.2.
Swing Line Loan Commitment Amount means, on any date,
$10,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
Swing Line Note means a joint and several promissory note of
the Borrowers payable to the Swing Line Lender, in the form of
Exhibit B hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all
other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
Syndication Agent is defined in the preamble.
Taxes means any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by (i) the United
States or any taxing authority or political subdivision thereof
or (ii) any other jurisdiction as a result of a connection
between the Borrower and such taxing jurisdiction, and in each
case any interest, additions to tax, penalties or additional
amounts payable with respect thereto.
Term Loan is defined in the Term Loan Agreement.
Term Loan Agreement means the Amended and Restated Term Loan
Agreement, dated as of the date hereof, among the Term Loan
Borrower, the Term Loan Lenders, the Agents, the Documentation
Agent and the Collateral Agent as the same may be amended,
supplemented, amended and restated, or otherwise modified from
time to time.
Term Loan Borrower means New Holdings.
Term Loan Lenders means each of the financial institutions
from time to time party to the Term Loan Agreement.
type means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
United States or U.S. means the United States of America,
its fifty States and the District of Columbia.
Welfare Plan means a welfare plan, as such term is defined
in section 3(1) of ERISA.
SECTION I.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings
when used in the Disclosure Schedule and in each Revolving Credit
Note, Borrowing Request, Continuation/Conversion Notice,
Revolving Credit Document, notice and other communication
delivered from time to time in connection with this Agreement or
any other Revolving Credit Document.
SECTION I.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Revolving Credit
Document to any Article or Section are references to such Article
or Section of this Agreement or such other Revolving Credit
Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause
are references to such clause of such Article, Section or
definition.
SECTION I.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or
in any other Revolving Credit Document shall be interpreted, and
all accounting determinations and computations hereunder or
thereunder (including under Sections 7.1.1 and 7.2.5 of the Term
Loan Agreement) shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be
prepared, in accordance with those generally accepted accounting
principles (?GAAP?) applied in the preparation of the financial
statements referred to in Section 6.5 of the Term Loan Agreement,
except as set forth in Section 1.4 of the Term Loan Agreement as
in effect on the date hereof.
ARTICLE II
CONTINUATION OF EXISTING REVOLVING CREDIT LOANS
AND REVOLVING CREDIT LETTERS OF CREDIT;
REVOLVING CREDIT COMMITMENTS, BORROWING AND
ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION II.1. Revolving Credit Commitments. On the terms
and subject to the conditions of this Agreement (including
Article VI), each Revolving Credit Lender and the Swing Line
Lender severally agrees as follows:
SECTION II.1.1. Revolving I Credit Commitment. Each of the
parties hereto acknowledges and agrees that the Revolving I
Credit Loans and Swing Line Loans extended under (and as defined
in) the Existing Revolving Credit Agreement shall continue as
Revolving I Credit Loans and Swing Line Loans for all purposes
under this Agreement and the other Revolving Credit Documents.
In addition, subject to Section 2.1.4 and compliance by the
Revolving Credit Borrowers with the terms of Sections 6.1 and
6.2, Revolving I Credit Loans and Swing Line Loans will be made
as set forth below:
(a) From time to time on any Business Day occurring
prior to the Revolving I Credit Commitment Termination Date,
each Revolving Credit Lender will make Revolving Credit
Loans (relative to such Revolving Credit Lender, its
Revolving I Credit Loans) to each applicable Revolving
Credit Borrower, on a joint and several basis for all the
Revolving Credit Borrowers, equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount
of the Borrowing of Revolving I Credit Loans requested by
such Revolving Credit Borrower to be made on such day. On
the terms and subject to the conditions hereof, each
Revolving Credit Borrower may from time to time borrow,
prepay and reborrow Revolving I Credit Loans.
(b) From time to time on any Business Day occurring
prior to the Revolving I Credit Commitment Termination Date,
the Swing Line Lender will make a loan (relative to the
Swing Line Lender, its Swing Line Loans) to each applicable
Revolving Credit Borrower, on a joint and several basis for
all the Revolving Credit Borrowers, equal to the amount of
the Swing Line Loan requested by the applicable Revolving
Credit Borrower to be made on such day. On the terms and
subject to the conditions hereof, each applicable Revolving
Credit Borrower may from time to time borrow, prepay and
reborrow Swing Line Loans.
SECTION II.1.2. Revolving II Credit Commitment. Each of the
parties hereto acknowledges and agrees that the Revolving II
Credit Loans extended under (and as defined in) the Existing
Revolving Credit Agreement shall continue as Revolving II Credit
Loans for all purposes under this Agreement and the other
Revolving Credit Documents. From time to time on any Business Day
occurring prior to the Revolving II Credit Commitment Termination
Date, each Revolving Credit Lender will make Revolving Credit
Loans (relative to such Revolving Credit Lender, its Revolving II
Credit Loans) to each applicable Revolving Credit Borrower, on a
joint and several basis for all the Revolving Credit Borrowers,
equal to such Revolving Credit Lender's Revolving Credit
Percentage of the aggregate amount of the Borrowing of Revolving
II Credit Loans requested by such Revolving Credit Borrower to be
made on such day. No amounts paid or prepaid with respect to
Revolving II Credit Loans may be reborrowed.
SECTION II.1.3. Commitment to Issue Revolving Credit
Letters of Credit. Each of the parties hereto acknowledges and
agrees that all Revolving Credit Letters of Credit extended under
(and as defined in) the Existing Revolving Credit Agreement shall
continue as Revolving Credit Letters of Credit for all purposes
under this Agreement and the other Revolving Credit Documents.
In addition, subject to Section 2.1.4 and compliance by the
Revolving Credit Borrowers with the terms of Sections 6.1 and
6.2, from time to time on any Business Day occurring from and
after the Restatement Effective Date but prior to the Revolving I
Credit Commitment Termination Date, each Issuer will issue, and
each Revolving Credit Lender with a Revolving I Credit Commitment
will participate in, the Revolving Credit Letters of Credit, in
accordance with Article IV.
SECTION II.1.4. Revolving Credit Lenders Not Permitted or
Required To Make Revolving Credit Loans or Issue or Participate
in Revolving Credit Letters of Credit Under Certain
Circumstances. No Revolving Credit Lender shall be permitted or
required to
(a) make any Revolving I Credit Loan if, after giving
effect thereto, the aggregate outstanding principal amount
of all Revolving I Credit Loans
(i) of all Revolving Credit Lenders, together with
all Revolving Credit Letter of Credit Outstandings and
the outstanding principal amount of all Swing Line
Loans would exceed the Revolving I Credit Commitment
Amount, or
(ii) of such Revolving Credit Lender, together
with such Revolving Credit Lender's Revolving Credit
Percentage of all Revolving Credit Letter of Credit
Outstandings, would exceed such Revolving Credit
Lender's Revolving Credit Percentage of the Revolving I
Credit Commitment Amount; or
(b) make any Revolving II Credit Loan if, after giving
effect thereto, the aggregate outstanding principal amount
of all Revolving II Credit Loans
(i) of all Revolving Credit Lenders would exceed
the Revolving II Credit Commitment Amount, or
(ii) of such Revolving Credit Lender would exceed
such Revolving Credit Lender's Revolving Credit
Percentage of the Revolving II Credit Commitment
Amount; or
(c) issue (in the case of any Issuer) or participate in
(in the case of each Revolving Credit Lender) any Revolving
Credit Letter of Credit if, after giving effect thereto
(i) all Revolving Credit Letter of Credit
Outstandings together with the aggregate outstanding
principal amount of all Revolving I Credit Loans of all
Revolving Credit Lenders and the outstanding principal
amount of all Swing Line Loans would exceed the
Revolving I Credit Commitment Amount, or
(ii) such Revolving Credit Lender's Revolving
Credit Percentage of all Revolving Credit Letter of
Credit Outstandings together with the aggregate
outstanding principal amount of all Revolving I Credit
Loans of such Revolving Credit Lender would exceed such
Revolving Credit Lender's Revolving Credit Percentage
of the Revolving I Credit Commitment Amount.
(d) make any Swing Line Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all
Swing Line Loans (i) would exceed the Swing Line Loan
Commitment Amount, or (ii) together with the aggregate
outstanding principal amount of all Revolving I Credit Loans
of all Revolving Credit Lenders and Revolving Credit Letter
of Credit Outstandings would exceed the Revolving I Credit
Commitment Amount.
SECTION II.2. Reduction of Commitment Amounts. The
Revolving Credit Commitment Amounts are subject to reduction from
time to time pursuant to this Section 2.2.
SECTION II.2.1. Optional. Any Revolving Credit Borrower
may, from time to time on any Business Day occurring after the
time of the initial Borrowing hereunder, voluntarily reduce the
amount of either Revolving Credit Commitment Amount; provided,
however, that all such reductions shall require at least three
Business Days prior notice to the Administrative Agent and be
permanent, and any partial reduction of the Revolving I Credit
Commitment Amount shall be in a minimum amount of $1,000,000 and
in an integral multiple of $500,000 and of the Revolving II
Credit Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any such
reduction of the Revolving I Credit Commitment Amount which
reduces the Revolving I Credit Commitment Amount below the
Revolving Credit Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount shall result in an automatic and
corresponding reduction of the Revolving Credit Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount, as
the case may be, to an aggregate amount not in excess of the
Revolving I Credit Commitment Amount, as so reduced, without any
further action on the part of the Issuer or the Swing Line
Lender.
SECTION II.2.2. Mandatory. (a) On the Revolving I Credit
Commitment Termination Date, the Revolving I Credit Commitment
Amount shall be zero, and on the Revolving II Credit Loan
Commitment Termination Date, the Revolving II Credit Commitment
Amount shall be zero. Any amount required to be applied as a
mandatory prepayment of the Revolving I Credit Loans and a
reduction of the Revolving I Credit Commitment Amount and to cash
collateralize Reimbursement Obligations in respect of Revolving
Credit Letters of Credit pursuant to the penultimate paragraph of
Section 7.2.12 of the Term Loan Agreement as in effect on the
date hereof shall be applied first to the payment of the
aggregate unpaid principal amount of Swing Line Loans then
outstanding, second, to the payment of the aggregate unpaid
principal amount of Revolving I Credit Loans then outstanding,
and third, to the payment of the then outstanding Revolving
Credit Letter of Credit Outstandings and to cash collateralize
Reimbursement Obligations in respect of Revolving Credit Letters
of Credit, whereupon the Revolving I Credit Commitment shall
automatically terminate.
(b) The Revolving II Credit Commitment Amount shall be
reduced from time to time as required under Section 3.1.1 and the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement as in effect on the date hereof.
SECTION II.3. Borrowing Procedure. Revolving Credit Loans
(other than Swing Line Loans) shall be made by the Revolving
Credit Lenders in accordance with Section 2.3.1, and Swing Line
Loans shall be made by the Swing Line Lender in accordance with
Section 2.3.2.
SECTION II.3.1. Revolving I Credit Loans and Revolving II
Credit Loans. By telephonic notice, promptly followed (by the
end of the Business Day on which such telephonic notice was
delivered) by the delivery of a confirming Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York City
time, on a Business Day, any Revolving Credit Borrower may from
time to time irrevocably request, on not less than one Business
Days notice (in the case of Revolving I Credit Loans maintained
as Base Rate Loans) or three Business Days notice (in the case of
Revolving I Credit Loans maintained as LIBO Rate Loans or
Revolving II Credit Loans maintained either as Base Rate Loans or
LIBO Rate Loans) nor more than five Business Days notice (in the
case of any Revolving Credit Loans), that a Borrowing be made in
a minimum amount of $1,000,000 and an integral multiple of
$500,000, in the case of Revolving I Credit Loans, or in a
minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Revolving II Credit Loans, or, in
either case, in the unused amount of the applicable Revolving
Credit Commitment. On the terms and subject to the conditions of
this Agreement, each Borrowing shall be comprised of the type of
Revolving Credit Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 11:00 a.m.
(New York City time) on such Business Day each Revolving Credit
Lender shall deposit with the Administrative Agent same day funds
in an amount equal to such Revolving Credit Lender's Revolving
Credit Percentage of the requested Borrowing. Such deposit will
be made to an account which the Administrative Agent (which may
be maintained with an Affiliate of the Administrative Agent)
shall specify from time to time by notice to the Revolving Credit
Lenders. Subject to Section 10.2, the Administrative Agent shall
make such funds available to the applicable Revolving Credit
Borrower by wire transfer to the accounts such Revolving Credit
Borrower shall have specified in its Borrowing Request. No
Revolving Credit Lender's obligation to make any Revolving Credit
Loan shall be affected by any other Revolving Credit Lender's
failure to make any Revolving Credit Loan.
SECTION II.3.2. Swing Line Loans. (a) By telephonic
notice, promptly followed (by the end of the Business Day on
which such telephonic notice was delivered) by the delivery of a
confirming Borrowing Request, to the Swing Line Lender and the
Administrative Agent on or before 12:00 noon, New York City time,
on the Business Day the proposed Swing Line Loan is to be made,
any Revolving Credit Borrower may from time to time irrevocably
request that a Swing Line Loan be made by the Swing Line Lender
in a minimum principal amount of $100,000 or any larger integral
multiple of $50,000. All Swing Line Loans shall be made as Base
Rate Loans and shall not be entitled to be converted into LIBO
Rate Loans. Upon receipt of notice from the Administrative Agent
confirming the amount of the requested Borrowing, the proceeds of
each Swing Line Loan shall be made available by the Swing Line
Lender, by 2:00 p.m., New York City time, on the Business Day
telephonic notice is received by it as provided in this clause
(a), to the applicable Revolving Credit Borrower by wire transfer
to the account such Revolving Credit Borrower shall have
specified in its notice therefor.
(b) If any Default shall occur and be continuing, each
Revolving Credit Lender with a Revolving I Credit Commitment
(other than the Swing Line Lender) irrevocably agrees that it
will, at the request of the Swing Line Lender and upon notice
from the Administrative Agent, make a Revolving I Credit Loan
(which shall initially be funded as a Base Rate Loan) in an
amount equal to such Revolving Credit Lender's Revolving Credit
Percentage of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans
hereinafter referred to as the Refunded Swing Line Loans);
provided, that the Swing Line Lender shall not request, and no
Revolving Credit Lender shall make, any Refunded Swing Line Loan
if, after giving effect to the making of such Refunded Swing Line
Loan, the sum of all Refunded Swing Line Loans and Revolving I
Credit Loans made by such Revolving Credit Lender, plus such
Revolving Credit Lender's Revolving Credit Percentage of the
aggregate amount of all Revolving Credit Letter of Credit
Outstandings, would exceed such Revolving Credit Lender's
Revolving Credit Percentage of the then existing Revolving I Loan
Commitment Amount. On or before 11:00 a.m. (New York City time)
on the first Business Day following receipt by each Revolving
Credit Lender of a request to make Revolving I Credit Loans as
provided in the preceding sentence, each such Revolving Credit
Lender with a Revolving I Loan Commitment shall deposit in an
account specified by the Administrative Agent the amount so
requested in same day funds and such funds shall be transferred
to the Swing Line Lender by the Administrative Agent to repay the
Refunded Swing Line Loans. At the time the aforementioned
Revolving I Credit Lenders make the above referenced Revolving
Credit Loans, the Swing Line Lender shall be deemed to have made,
in consideration of the making of the Refunded Swing Line Loans,
a Revolving I Credit Loan in an amount equal to the Swing Line
Lender's Revolving Credit Percentage of the aggregate principal
amount of the Refunded Swing Line Loans. Upon the making (or
deemed making, in the case of the Swing Line Lender) of any
Revolving I Credit Loans pursuant to this clause (b), the amount
so funded shall become outstanding under such Revolving I Credit
Lender's Revolving I Credit Note and shall no longer be owed
under the Swing Line Note. All interest payable with respect to
any Revolving I Credit Loans made (or deemed made, in the case of
the Swing Line Lender) pursuant to this clause (b) shall be
appropriately adjusted to reflect the period of time during which
the Swing Line Lender had outstanding Swing Line Loans in respect
of which such Revolving I Credit Loans were made. Each Revolving
I Credit Lender's obligation to make the Revolving I Credit Loans
referred to in this clause (b) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving I Credit
Lender may have against the Swing Line Lender, any Revolving
Credit Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any
Revolving Credit Borrower; (iv) the acceleration or maturity of
any Revolving Credit Loans or the termination of any Revolving
Credit Commitment after the making of any Swing Line Loan;
(v) any breach of this Agreement or any other Revolving Credit
Document by any Revolving Credit Borrower or any Revolving Credit
Lender; or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION II.4. Continuation and Conversion Elections. By
telephonic notice, promptly followed (by the end of the Business
Day on which such telephonic notice was delivered) by the
delivery of a Continuation/Conversion Notice to the
Administrative Agent on or before 10:00 a.m., New York City time,
on a Business Day, any Revolving Credit Borrower may from time to
time irrevocably elect, on not less than one Business Days notice
in the case of a continuation or conversion of LIBO Rate Loans
into Base Rate Loans, or three Business Days notice in the case
of a continuation of LIBO Rate Loans or a conversion of Base Rate
Loans into LIBO Rate Loans, and in either case not more than five
Business Days notice that all, or any portion in an aggregate
minimum amount of $1,000,000 and an integral multiple of
$500,000, of any Revolving I Credit Loans, or an aggregate
minimum amount of $5,000,000 and an integral multiple of
$1,000,000, of any Revolving II Credit Loans, be, in the case of
Base Rate Loans, converted into LIBO Rate Loans of either type
or, in the case of LIBO Rate Loans of either type, be converted
into a Base Rate Loan or a LIBO Rate Loan of the other type or
continued as a LIBO Rate Loan of such type (in the absence of
delivery of a Continuation/ Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day
of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to
a Base Rate Loan); provided, however, that (i) each such
conversion or continuation shall be pro rated among the
applicable outstanding Revolving I Credit Loans or
Revolving II Credit Loans, as the case may be, of all Revolving
Credit Lenders, and (ii) no portion of the outstanding principal
amount of any Revolving Credit Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and
is continuing.
SECTION II.5. Funding. Each Revolving Credit Lender may,
if it so elects, fulfill its obligation to make, continue or
convert LIBO Rate Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility
created by such Revolving Credit Lender) to make or maintain such
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall
nonetheless be deemed to have been made and to be held by such
Revolving Credit Lender, and the obligation of each Revolving
Credit Borrower to repay such LIBO Rate Loan shall nevertheless
be to such Revolving Credit Lender for the account of such
foreign branch, Affiliate or international banking facility. In
addition, each Revolving Credit Borrower hereby consents and
agrees that, for purposes of any determination to be made for
purposes of Section 5.1, 5.2, 5.3 or 5.4, it shall be
conclusively assumed that each Revolving Credit Lender elected to
fund all LIBO Rate Loans by purchasing, as the case may be,
Dollar certificates of deposit in the U.S. or Dollar deposits in
its LIBOR Office?s interbank eurodollar market.
SECTION II.6. Register; Revolving Credit.
(a) Each Revolving Credit Lender may maintain in
accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Revolving Credit Borrowers to
such Revolving Credit Lender resulting from each Revolving Credit
Loan made by such Revolving Credit Lender, including the amounts
of principal and interest payable and paid to such Revolving
Credit Lender from time to time hereunder. In the case of a
Revolving Credit Lender that does not request, pursuant to clause
(b)(ii) below, execution and delivery of a Revolving Credit Note
evidencing the Revolving Credit Loans made by such Revolving
Credit Lender to the Revolving Credit Borrowers, such account or
accounts shall, to the extent not inconsistent with the notations
made by the Administrative Agent in the Register, be conclusive
and binding on the Borrowers absent manifest error; provided,
however, that the failure of any Revolving Credit Lender to
maintain such account or accounts shall not limit or otherwise
affect any Revolving Credit Obligations of the Revolving Credit
Borrowers or any other Revolving Credit Obligor.
(b)(i) The Revolving Credit Borrowers hereby
designate the Administrative Agent to serve as the Revolving
Credit Borrowers agent, solely for the purpose of this
clause (b), to maintain a register (the Register) on which
the Administrative Agent will record each Revolving Credit
Lender's Revolving Credit Commitment, the Revolving Credit
Loans made by each Revolving Credit Lender and each
repayment in respect of the principal amount of the
Revolving Credit Loans of each Revolving Credit Lender and
annexed to which the Administrative Agent shall retain a
copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to Section 11.11.1. Failure
to make any recordation, or any error in such recordation,
shall not affect the Revolving Credit Borrowers obligation
in respect of such Revolving Credit Loans. The entries in
the Register shall be conclusive, in the absence of manifest
error, and the Revolving Credit Borrowers, the
Administrative Agent and the Revolving Credit Lenders shall
treat each Person in whose name a Revolving Credit Loan (and
as provided in clause (ii) the Revolving Credit Note
evidencing such Revolving Credit Loan, if any) is registered
as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the
contrary. Subject to the provisions of Section 11.11.1, a
Revolving Credit Lender's Revolving Credit Commitment and
the Revolving Credit Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only
by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Revolving Credit
Lender's Revolving Credit Loan Commitment or the Revolving
Credit Loans made pursuant thereto shall be registered in
the Register only upon delivery to the Administrative Agent
of a Lender Assignment Agreement duly executed by the
Assignor thereof. No assignment or transfer of a Revolving
Credit Lender's Revolving Credit Commitment or the Revolving
Credit Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this
Section.
(ii) The Revolving Credit Borrowers agree that,
upon the request to the Administrative Agent by any
Revolving Credit Lender, the Revolving Credit Borrowers will
execute and deliver to such Revolving Credit Lender, as
applicable, a Revolving Credit Note evidencing the Revolving
Credit Loans made by such Revolving Credit Lender. The
Revolving Credit Borrowers hereby irrevocably authorizes
each Revolving Credit Lender to make (or cause to be made)
appropriate notations on the grid attached to such Revolving
Credit Lender's Revolving Credit Notes (or on any
continuation of such grid), which notations, if made, shall
evidence, inter alia, the date of the outstanding principal
amount of, and the interest rate and Interest Period
applicable to the Revolving Credit Loans evidenced thereby.
Such notations shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Revolving Credit
Borrowers absent manifest error; provided, however, that the
failure of any Revolving Credit Lender to make any such
notations shall not limit or otherwise affect any Revolving
Credit Obligations of the Revolving Credit Borrowers or any
other Revolving Credit Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments. The Revolving
Credit Borrowers shall be jointly and severally obligated to
repay in full the unpaid principal amount of each Revolving
Credit Loan upon the Stated Maturity Date therefor. Prior
thereto, the Revolving Credit Borrowers jointly and severally
acknowledge, covenant and agree that any Revolving Credit
Borrower
(a may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the
outstanding principal amount of any
(i Revolving Credit Loans (other than Swing Line
Loans); provided, however, that
(A) any such prepayment shall be made pro
rata among Revolving I Credit Loans or Revolving
II Credit Loans, as the case may be, of the same
type and, if applicable, having the same Interest
Period, of all Revolving Credit Lenders;
(B) no such prepayment of any LIBO Rate Loan
may be made on any day other than the last day of
the Interest Period for such LIBO Rate Loan;
(C) all such voluntary prepayments shall
require, in the case of Revolving I Credit Loans
maintained as Base Rate Loans, at least one, and
in the case of Revolving I Credit Loans maintained
as LIBO Rate Loans and Revolving II Credit Loans
maintained either as Base Rate Loans or LIBO Rate
Loans, at least three but, in any case, no more
than five, Business Days prior written notice to
the Administrative Agent; and
(D) all such voluntary partial prepayments
shall be, in the case of Revolving I Credit Loans,
in an aggregate minimum amount of $1,000,000 and
an integral multiple of $500,000, and in the case
of Revolving II Credit Loans, in an aggregate
minimum amount of $5,000,000 and an integral
multiple of $1,000,000;
(ii Swing Line Loans, provided that
(A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m., New York City time,
on the day of such prepayment (such notice to be
confirmed in writing by the applicable Revolving
Credit Borrower by the end of the Business Day on
which such telephonic notice was delivered); and
(B) all such voluntary partial prepayments
shall be in an aggregate amount of $100,000 and an
integral multiple of $50,000 or in the aggregate
principal amount of all Swing Line Loans then
outstanding;
(b shall, on each date when any reduction in any
Revolving I Credit Commitment Amount shall become effective,
including pursuant to Section 2.2, make a mandatory
prepayment (which shall be applied (or held for application,
as the case may be) by the Revolving Credit Lenders having
Revolving I Credit Commitments first, to the payment of the
aggregate unpaid principal amount of those Swing Line Loans
then outstanding, second, to the payment of the aggregate
unpaid principal amount of those Revolving I Credit Loans
then outstanding, and, third, to the payment of the then
outstanding Revolving Credit Letter of Credit Outstandings)
equal to the excess, if any, of the aggregate, outstanding
principal amount of all Revolving I Credit Loans and
Revolving Credit Letter of Credit Outstandings over the
Revolving I Credit Loan Commitment Amount as so reduced;
(c shall, on each date when any reduction in the
Revolving II Credit Commitment Amount shall become
effective, including pursuant to Section 2.2 (other than
pursuant to clause (a) of the definition of Revolving II
Credit Commitment Termination Date), make a mandatory
prepayment (which shall be applied (or held for application,
as the case may be) by the Revolving Credit Lenders having
Revolving II Credit Commitments to the payment of the
aggregate unpaid principal amount of those Revolving II
Credit Loans then outstanding) equal to the excess, if any,
of the aggregate, outstanding principal amount of all
Revolving II Credit Loans over the Revolving II Credit Loan
Commitment Amount as so reduced;
provided, that mandatory prepayments of LIBO Rate Loans made
pursuant to clauses (b) and (c) of this Section 3.1, if not
made on the last day of the Interest Period with respect
thereto, shall, at any Revolving Credit Borrower's option,
so long as no Default has occurred and is continuing, be
prepaid subject to the provisions of Section 5.4, or the
amount required to be applied to the prepayment of LIBO Rate
Loans (after application to any Base Rate Loans) shall be
deposited with the Administrative Agent or another Revolving
Credit Lender as cash collateral for such Revolving I Credit
Loans and Revolving II Credit Loans on terms reasonably
satisfactory to the Administrative Agent (or such Revolving
Credit Lender) and thereafter shall be applied in the order
of the Interest Periods next ending most closely to the date
of receipt of the proceeds in respect of which such
prepayment is required to be made and on the last day of
each such Interest Period (together with a payment of all
interest that is due on the last day of each such Interest
Period pursuant to clause (d) of Section 3.2.3). After such
application, unless an Event of Default shall have occurred
and be continuing, any remaining interest earned on such
cash collateral shall be paid to the applicable Revolving
Credit Borrower;
(d shall, on the Stated Maturity Date for the
Revolving Credit Loans, repay in full the aggregate
outstanding principal amount, if any, of all Revolving
Credit Loans;
(e shall, immediately upon any acceleration of the
Stated Maturity Date of any Revolving Credit Loans pursuant
to Section 9.2 or Section 9.3, repay all Revolving Credit
Loans, unless, pursuant to Section 9.3, only a portion of
all Revolving Credit Loans is so accelerated (in which case
such portion shall be repaid); and
(f shall repay Revolving Credit Loans from time to
time as required under Sections 3.1.1 and 3.1.2 and the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement as in effect on the date hereof (it being
understood by the parties hereto that such provisions of the
Term Loan Agreement shall inure to the benefit of the
Revolving Credit Lenders as if the Revolving Credit Lenders
were parties to the Term Loan Agreement).
Each prepayment of any Revolving Credit Loans made pursuant to
this Section shall be without premium or penalty, except as may
be required by Section 5.4. No voluntary prepayment of principal
of any Revolving I Credit Loan or Swing Line Loan shall cause a
reduction in the Revolving I Credit Commitment Amount; any
prepayment of principal of any Revolving II Credit Loan shall, to
the extent of such prepayment, reduce the Revolving II Credit
Commitment Amount, and no mandatory reduction of the Revolving II
Credit Commitment Amount pursuant to clause (a) of the definition
of Revolving II Credit Commitment Termination Date shall require
that the then outstanding Revolving II Credit Loans be repaid.
SECTION III.2. Interest Provisions. Interest on the
outstanding principal amount of Revolving Credit Loans shall
accrue and be payable in accordance with this Section 3.2.
SECTION III.2.1. Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
(a any Revolving Credit Borrower may elect that
Revolving Credit Loans (other than Swing Line Loans)
comprising a Borrowing accrue interest at a rate per annum:
(i on that portion maintained from time to time
as a Base Rate Loan, equal to the sum of the Alternate
Base Rate from time to time in effect plus the
Applicable Revolving Loan Margin; and
(ii on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve Adjusted)
for such Interest Period plus the Applicable Revolving
Loan Margin (all LIBO Rate Loans shall bear interest
from and including the first day of the applicable
Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as
applicable to such LIBO Rate Loan); and
(b each Swing Line Loan shall accrue interest on the
unpaid principal amount thereof for each day from and
including the day upon which such Swing Line Loan was made
to but excluding the date such Swing Line Loan is repaid at
a rate per annum equal to the sum of the then effective
Alternate Base Rate plus the Applicable Revolving Loan
Margin minus the applicable commitment fee rate per annum
payable to any Revolving I Credit Lender pursuant to Section
3.3.1 in respect of its Revolving I Credit Commitment.
SECTION III.2.2. Post-Maturity Rates. Upon the occurrence
and continuance of (i) any Event of Default described in Section
9.1.1 or clauses (a) through (d) of Section 9.1.9 or (ii) any
other Event of Default which shall remain uncured for thirty days
(without giving effect to any grace period therefor), all
Revolving Credit Loans shall bear, and the Revolving Credit
Borrowers shall be obligated, on a joint and several basis, to
pay, but only to the extent permitted by law, interest (after as
well as before judgment) thereon in arrears at a rate per annum
equal to the rate that would otherwise be applicable to such
Revolving Credit Loans maintained as Base Rate Loans pursuant to
Section 3.2.1 plus 5.0% on the last day of each calendar month
or, if such day is not a Business Day, the next succeeding
Business Day.
SECTION III.2.3. Payment Dates. Interest accrued on each
Revolving Credit Loan shall be payable, without duplication:
(a on the Stated Maturity Date therefor;
(b subject to the proviso set forth in clause (c) of
Section 3.1, on the date of any optional or required payment
or prepayment, in whole or in part, of principal outstanding
on such Revolving Credit Loan to the extent of the unpaid
interest accrued through such date on the principal so paid
or prepaid;
(c with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial
Borrowing hereunder;
(d with respect to LIBO Rate Loans, on the last day
of each applicable Interest Period (and, if such Interest
Period shall exceed three months, on the date occurring
three months after the commencement of such Interest
Period);
(e with respect to any Base Rate Loans converted into
LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the next
Quarterly Payment Date; and
(f on that portion of any Revolving Credit Loans the
Stated Maturity Date of which is accelerated pursuant to
Section 9.2 or Section 9.3, immediately upon such
acceleration.
Interest accrued on Revolving Credit Loans or other monetary
Revolving Credit Obligations arising under this Agreement or any
other Revolving Credit Document after the date such amount is due
and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION III.3. Fees. The Revolving Credit Borrowers,
jointly and severally, agree to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION III.3.1. Commitment Fee. The Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent for the account of each Revolving Credit
Lender, for the period (including any portion thereof when any of
its Revolving Credit Commitments are suspended by reason of the
inability of the Revolving Credit Borrowers to satisfy any
condition of Article VI) commencing on the Restatement Effective
Date and continuing through the final Revolving Credit Commitment
Termination Date, a commitment fee at the following per annum
rates and for the following periods based on such Revolving
Credit Lender's Revolving Credit Percentage of the sum of the
average daily unused portion of each Revolving Credit Commitment
Amount: (i) 1.00% per annum for the period commencing on the
Restatement Effective Date through January 31, 2000, (ii) 1.125%
per annum for the period commencing on February 1, 2000 through
April 30, 2000, and (iii) 1.375% per annum for the period
commencing on May 1, 2000 and continuing thereafter through the
final Revolving Credit Commitment Termination Date. Such
commitment fees shall be payable by the Revolving Credit
Borrowers in arrears on each Quarterly Payment Date, commencing
with the first such day following the Restatement Effective Date,
and on each Revolving Credit Commitment Termination Date. The
making of Swing Line Loans shall not constitute usage of the
Revolving I Credit Commitment with respect to the calculation of
commitment fees to be paid by the Revolving Credit Borrowers to
the Revolving Credit Lenders.
SECTION III.3.2. Other Fees. The Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent for its own account, the annual
administration fees referred to in the letter agreement, dated
March 13, 1998, among the Borrower, the Revolving Credit
Borrowers and the Administrative Agent with respect thereto.
SECTION III.3.3. Revolving Credit Letter of Credit Fee.
The Revolving Credit Borrowers, jointly and severally, agree to
pay to the Administrative Agent, for the account of each
Revolving Credit Lender having a Revolving I Credit Commitment, a
fee for each Revolving Credit Letter of Credit for the period
from and including the date of the issuance of such Revolving
Credit Letter of Credit to (but not including) the date upon
which such Revolving Credit Letter of Credit expires, at a rate
per annum equal to the Applicable Revolving Loan Margin for Base
Rate Loans multiplied by the Stated Amount of the face amount of
such Revolving Credit Letter of Credit. Such fee shall be
payable by the Revolving Credit Borrowers in arrears on each
Quarterly Payment Date, and on the Revolving I Credit Commitment
Termination Date for any period then ending for which such fee
shall not theretofore have been paid, commencing on the first
such date after the issuance of such Revolving Credit Letter of
Credit.
SECTION III.3.4. Revolving Credit Letter of Credit Issuing
Fee. The Revolving Credit Borrowers, jointly and severally,
agree to pay to the Administrative Agent, for the account of the
applicable Issuer, an issuing fee for each Revolving Credit
Letter of Credit for the period from and including the date of
issuance of such Revolving Credit Letter of Credit to (but not
including) the date upon which such Revolving Credit Letter of
Credit expires, of 0.25% per annum of the Stated Amount of such
Revolving Credit Letter of Credit. Such fee shall be payable by
the Revolving Credit Borrowers in arrears on each Quarterly
Payment Date and on the Revolving I Credit Commitment Termination
Date for any period then ending for which such fee shall not
theretofore have been paid, commencing on the first such date
after the issuance of such Revolving Credit Letter of Credit.
SECTION III.3.5. Revolving Credit Letter of Credit
Administrative Fee. The Revolving Credit Borrowers, jointly and
severally, agree to pay to the Administrative Agent, for the
account of the applicable Issuer, the amounts set forth in
Section 4.3.
SECTION III.3.6. Deferred Fees. Subject to the occurrence
of the Amendment No. 2 Effective Date, the Revolving Credit
Borrowers, jointly and severally, agree to pay to the
Administrative Agent, for the account of each Revolving Credit
Lender, deferred fees in the following amounts: (i) .25% of such
Revolving Credit Lender's Revolving Credit Commitments in effect
and Revolving Credit Loans outstanding on February 1, 2000, (ii)
1.00% of such Revolving Credit Lender's Revolving Credit
Commitments in effect and Revolving Credit Loans outstanding on
August 1, 2000 and (iii) 1.00% of such Revolving Credit Lender's
Revolving Credit Commitments in effect and Revolving Credit Loans
outstanding on January 30, 2001.
SECTION III.3.7. Amendment Fee. The Revolving Credit
Borrowers jointly and severally, agree to pay to the
Administrative Agent, for the account of each Revolving Credit
Lender, upon the later to occur of the Amendment No. 2 Effective
Date and the Restatement Effective Date, an amendment fee in the
amount of .50% of such Revolving Credit Lender's Revolving Credit
Commitments in effect and Revolving Credit Loans outstanding at
such time.
ARTICLE IV
REVOLVING CREDIT LETTERS OF CREDIT
SECTION IV.1. Issuance Requests. By delivering to the
Administrative Agent and the applicable Issuer an Issuance
Request on or before 12:00 noon, New York City time, any
Revolving Credit Borrower may request, from time to time prior to
the Revolving I Credit Commitment Termination Date and on not
less than three nor more than ten Business Days notice, that such
Issuer issue an irrevocable standby Revolving Credit Letter of
Credit in substantially the form of Exhibit C hereto, or in such
other form as may be requested by such Revolving Credit Borrower
and approved by such Issuer (each a Revolving Credit Letter of
Credit), in support of financial obligations of such Revolving
Credit Borrower incurred in such Revolving Credit Borrower's
ordinary course of business and which are described in such
Issuance Request. Upon receipt of an Issuance Request, the
Administrative Agent shall promptly notify the Revolving Credit
Lenders thereof. Each Revolving Credit Letter of Credit shall by
its terms:
(a be issued in a Stated Amount which does not exceed
(or would not exceed) the then Revolving I Credit Commitment
Availability;
(b be stated to expire on a date (its Stated Expiry
Date) no later than the earlier to occur of (i) the
Revolving I Credit Loan Commitment Termination Date and (ii)
one year from the date of its issuance; provided that,
notwithstanding the terms of clause (ii) above, a Revolving
Credit Letter of Credit may, if required by the beneficiary
thereof, contain evergreen provisions pursuant to which the
Stated Expiry Date shall be automatically extended, unless
notice to the contrary shall have been given to the
beneficiary by the Issuer or the account party more than a
specified period prior to the then existing Stated Expiry
Date; and
(c on or prior to its Stated Expiry Date
(i terminate immediately upon notice to the
Issuer thereof from the beneficiary thereunder that all
obligations covered thereby have been terminated, paid,
or otherwise satisfied in full,
(ii reduce in part immediately and to the extent
the beneficiary thereunder has notified the Issuer
thereof that the obligations covered thereby have been
paid or otherwise satisfied in part, or
(iii terminate 30 Business Days after notice to
the beneficiary thereunder from the Issuer thereof that
an Event of Default has occurred and is continuing.
So long as no Default has occurred and is continuing, by delivery
to the applicable Issuer and the Administrative Agent of an
Issuance Request at least three but not more than ten Business
Days or such longer period as required by the terms of any
Revolving Credit Letter of Credit prior to the Stated Expiry Date
of any Revolving Credit Letter of Credit, the applicable
Revolving Credit Borrower may request such Issuer to extend the
Stated Expiry Date of such Revolving Credit Letter of Credit for
an additional period not to exceed the earlier of one year from
its date of extension and the Revolving I Credit Commitment
Termination Date.
SECTION IV.2. Issuances and Extensions. On the terms and
subject to the conditions of this Agreement (including Article
VI), the Issuer shall issue Revolving Credit Letters of Credit,
and extend the Stated Expiry Dates of outstanding Revolving
Credit Letters of Credit, in accordance with the Issuance
Requests made therefor. Each Issuer will make available the
original of each Revolving Credit Letter of Credit which it
issues in accordance with the Issuance Request therefor to the
beneficiary thereof (and will promptly provide each of the
Revolving Credit Lenders with a Revolving I Credit Commitment
with a copy of such Revolving Credit Letter of Credit) and will
notify the beneficiary under any Revolving Credit Letter of
Credit of any extension of the Stated Expiry Date thereof.
SECTION IV.3. Expenses. Each Revolving Credit Borrower
agrees to pay to the Administrative Agent for the account of the
applicable Issuer(s) all administrative expenses of such
Issuer(s) in connection with the issuance, maintenance,
modification (if any) and administration of each Revolving Credit
Letter of Credit issued by such Issuer(s) upon demand from time
to time.
SECTION IV.4. Other Revolving Credit Lenders Participation.
Each Revolving Credit Letter of Credit issued pursuant to Section
4.2 shall, effective upon its issuance and without further
action, be issued on behalf of all Revolving Credit Lenders
(including the Issuer thereof) pro rata according to their
respective Revolving Credit Percentages of the Revolving I Credit
Commitment. Each Revolving Credit Lender shall, to the extent of
its Revolving Credit Percentage of the Revolving I Credit
Commitment, be deemed irrevocably to have participated in the
issuance of such Revolving Credit Letter of Credit and shall be
responsible to reimburse promptly the Issuer thereof for
Reimbursement Obligations which have not been reimbursed by the
Revolving Credit Borrowers in accordance with Section 4.5, or
which have been reimbursed by the Revolving Credit Borrowers but
must be returned, restored or disgorged by such Issuer for any
reason, and each Revolving Credit Lender shall, to the extent of
its Revolving Credit Percentage of the Revolving I Credit
Commitment Amount, be entitled to receive from the Administrative
Agent a ratable portion of the Revolving Credit Letter of Credit
fees received by the Administrative Agent pursuant to Section
3.3.3, with respect to each Revolving Credit Letter of Credit.
In the event that the Revolving Credit Borrowers shall fail to
reimburse any Issuer, or if for any reason Revolving I Credit
Loans shall not be made to fund any Reimbursement Obligation, all
as provided in Section 4.5 and in an amount equal to the amount
of any drawing honored by such Issuer under a Revolving Credit
Letter of Credit issued by it, or in the event such Issuer must
for any reason return or disgorge such reimbursement, such Issuer
shall promptly notify each Revolving Credit Lender with a
Revolving I Credit Commitment of the unreimbursed amount of such
drawing and of such Revolving Credit Lender's respective
participation therein. Each Revolving Credit Lender shall make
available to such Issuer, whether or not any Default shall have
occurred and be continuing, an amount equal to its respective
participation in same day or immediately available funds at the
office of such Issuer specified in such notice not later than
11:00 a.m., New York City time, on the Business Day (under the
laws of the jurisdiction of such Issuer) after the date notified
by such Issuer. In the event that any Revolving Credit Lender
fails to make available to such Issuer the amount of such
Revolving Credit Lender's participation in such Revolving Credit
Letter of Credit as provided herein, such Issuer shall be
entitled to recover such amount on demand from such Revolving
Credit Lender together with interest at the daily average Federal
Funds Rate for three Business Days (together with such other
compensatory amounts as may be required to be paid by such
Revolving Credit Lender to the Administrative Agent pursuant to
the Rules for Interbank Compensation of the council on
International Banking or the Clearinghouse Compensation
Committee, as the case may be, as in effect from time to time)
and thereafter at the Alternate Base Rate plus the Applicable
Revolving Loan Margin for Base Rate Loans. Nothing in this
Section shall be deemed to prejudice the right of any Revolving
Credit Lender to recover from any Issuer any amounts made
available by such Revolving Credit Lender to such Issuer pursuant
to this Section in the event that it is determined by a court of
competent jurisdiction that the payment with respect to a
Revolving Credit Letter of Credit by such Issuer in respect of
which payment was made by such Revolving Credit Lender
constituted gross negligence or wilful misconduct on the part of
such Issuer. Each Issuer shall distribute to each other
Revolving Credit Lender which has paid all amounts payable by it
under this Section with respect to any Revolving Credit Letter of
Credit issued by such Issuer such other Revolving Credit Lender's
Revolving Credit Percentage of the Revolving I Credit Commitment
Amount of all payments received by such Issuer from the Revolving
Credit Borrowers in reimbursement of drawings honored by such
Issuer under such Revolving Credit Letter of Credit when such
payments are received.
SECTION IV.5. Disbursements. Each Issuer will notify the
applicable Revolving Credit Borrower and the Administrative Agent
promptly of the presentment for payment of any Revolving Credit
Letter of Credit, together with notice of the date (a
Disbursement Date) such payment shall be made. Subject to the
terms and provisions of such Revolving Credit Letter of Credit,
the applicable Issuer shall make such payment to the beneficiary
(or its designee) of such Revolving Credit Letter of Credit.
Prior to 12:00 noon, New York City time, on the Disbursement
Date, the Revolving Credit Borrowers will be obligated, on a
joint and several basis, to reimburse the applicable Issuer for
all amounts which it has disbursed under the Revolving Credit
Letter of Credit. To the extent the applicable Issuer is not
reimbursed in full in accordance with the third sentence of this
Section, the Revolving Credit Borrowers Reimbursement Obligation
shall accrue interest at a fluctuating rate determined by
reference to the Alternate Base Rate plus the Applicable
Revolving Loan Margin for Base Rate Loans plus a margin of 5.0%
per annum, payable on demand. In the event the applicable Issuer
is not reimbursed by the Revolving Credit Borrowers on the
Disbursement Date, or if such Issuer must for any reason return
or disgorge such reimbursement, the Revolving Credit Lenders
(including such Issuer) shall, on the terms and subject to the
conditions of this Agreement, fund the Reimbursement Obligation
therefor by making, on the next Business Day, Revolving Credit
Loans which are Base Rate Loans as provided in Section 2.1.2 (the
Revolving Credit Borrowers being deemed to have given a timely
Borrowing Request therefor for such amount); provided, however,
for the purpose of determining the availability of the Revolving
I Credit Commitments to make Revolving I Credit Loans immediately
prior to giving effect to the application of the proceeds of such
Revolving Credit Loans, such Reimbursement Obligation shall be
deemed not to be outstanding at such time.
SECTION IV.6. Reimbursement. The Revolving Credit
Borrowers obligations (a Reimbursement Obligation) under Section
4.5 to reimburse an Issuer with respect to each Disbursement
(including interest thereon), and each Revolving Credit Lender's
obligation to make participation payments in each drawing which
has not been reimbursed by the Revolving Credit Borrowers, shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment
which the Revolving Credit Borrowers may have or have had against
any Revolving Credit Lender or any beneficiary of a Revolving
Credit Letter of Credit, including any defense based upon the
occurrence of any Default, any draft, demand or certificate or
other document presented under a Revolving Credit Letter of
Credit proving to be forged, fraudulent, invalid or insufficient,
the failure of any Disbursement to conform to the terms of the
applicable Revolving Credit Letter of Credit (if, in the
applicable Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such
Disbursement, or the legality, validity, form, regularity, or
enforceability of such Revolving Credit Letter of Credit;
provided, however, that nothing herein shall adversely affect the
right of the Revolving Credit Borrowers to commence any
proceeding against the applicable Issuer for any wrongful
Disbursement made by such Issuer under a Revolving Credit Letter
of Credit as a result of acts or omissions constituting gross
negligence or wilful misconduct on the part of such Issuer.
SECTION IV.7. Deemed Disbursements. Upon the occurrence
and during the continuation of any Event of Default or the
occurrence of the Revolving I Credit Commitment Termination Date,
an amount equal to that portion of Revolving Credit Letter of
Credit Outstandings attributable to outstanding and undrawn
Revolving Credit Letters of Credit shall, at the election of the
applicable Issuer acting on instructions from the Required
Revolving Credit Lenders, and without demand upon or notice to
any Revolving Credit Borrower, be deemed to have been paid or
disbursed by such Issuer under such Revolving Credit Letters of
Credit (notwithstanding that such amount may not in fact have
been so paid or disbursed), and, upon notification by such Issuer
to the Administrative Agent and any Revolving Credit Borrower of
its obligations under this Section, such Revolving Credit
Borrower shall be immediately obligated to reimburse such Issuer
the amount deemed to have been so paid or disbursed by such
Issuer. Any amounts so received by such Issuer from any
Revolving Credit Borrower pursuant to this Section shall be held
as collateral security for the repayment of such Revolving Credit
Borrower's obligations in connection with the Revolving Credit
Letters of Credit issued by such Issuer. At any time when such
Revolving Credit Letters of Credit shall terminate and all
Revolving Credit Obligations of each Issuer are either
terminated or paid or reimbursed to such Issuer in full, the
Revolving Credit Obligations of the Revolving Credit Borrowers
under this Section shall be reduced accordingly (subject,
however, to reinstatement in the event any payment in respect of
such Revolving Credit Letters of Credit is recovered in any
manner from such Issuer), and such Issuer will return to the
Revolving Credit Borrowers the excess, if any, of
(a the aggregate amount deposited by the Revolving
Credit Borrowers with such Issuer and not theretofore
applied by such Issuer to any Reimbursement Obligation
over
(b the aggregate amount of all Reimbursement
Obligations to such Issuer pursuant to this Section, as so
adjusted.
At such time when all Events of Default shall have been cured or
waived, each Issuer shall return to the Revolving Credit
Borrowers all amounts then on deposit with such Issuer pursuant
to this Section. All amounts on deposit pursuant to this Section
shall, until their application to any Reimbursement Obligation or
their return to any Revolving Credit Borrower, as the case may
be, bear interest at the daily average Federal Funds Rate from
time to time in effect (net of the costs of any reserve
requirements, in respect of amounts on deposit pursuant to this
Section, pursuant to F.R.S. Board Regulation D), which interest
shall be held by the applicable Issuer as additional collateral
security for the repayment of the Revolving Credit Obligations in
connection with the Revolving Credit Letters of Credit issued by
such Issuer.
SECTION IV.8. Nature of Reimbursement Obligations. The
Revolving Credit Borrowers shall assume all risks of the acts,
omissions, or misuse of any Revolving Credit Letter of Credit by
the beneficiary thereof. Neither any Issuer nor any Revolving
Credit Lender (except to the extent of its own gross negligence
or wilful misconduct) shall be responsible for:
(a the form, validity, sufficiency, accuracy,
genuineness, or legal effect of any Revolving Credit Letter
of Credit or any document submitted by any party in
connection with the application for and issuance of a
Revolving Credit Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent, or forged;
(b the form, validity, sufficiency, accuracy,
genuineness, or legal effect of any instrument transferring
or assigning or purporting to transfer or assign a Revolving
Credit Letter of Credit or the rights or benefits thereunder
or proceeds thereof in whole or in part, which may prove to
be invalid or ineffective for any reason;
(c failure of the beneficiary to comply fully with
conditions required in order to demand payment under a
Revolving Credit Letter of Credit;
(d errors, omissions, interruptions, or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex, or otherwise; or
(e any loss or delay in the transmission or otherwise
of any document or draft required in order to make a
Disbursement under a Revolving Credit Letter of Credit or of
the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the
vesting of any of the rights or powers granted any Issuer or any
Revolving Credit Lender hereunder. In furtherance and extension,
and not in limitation or derogation, of any of the foregoing, any
action taken or omitted to be taken by any Issuer in good faith
shall be binding (jointly and severally) upon each Revolving
Credit Borrower and shall not put such Issuer under any resulting
liability to any Revolving Credit Borrower.
SECTION IV.9. Increased Costs; Indemnity. If by reason of
(a any change in applicable law, regulation, rule,
decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory
requirement, or
(b compliance by any Issuer or any Revolving Credit
Lender with any direction, request or requirement (whether
or not having the force of law) of any governmental or
monetary authority, including Regulation D of the F.R.S.
Board:
(i any Issuer or any Revolving Credit Lender
shall be subject to any tax (other than taxes on net
income and franchises), levy, charge or withholding of
any nature or to any variation thereof or to any
penalty with respect to the maintenance or fulfillment
of its obligations under this Article IV, whether
directly or by such being imposed on or suffered by
such Issuer or any Revolving Credit Lender;
(ii any reserve, deposit or similar requirement
is or shall be applicable, imposed or modified in
respect of any Revolving Credit Letters of Credit
issued by any Issuer or participations therein
purchased by any Revolving Credit Lender; or
(iii there shall be imposed on any Issuer or any
Revolving Credit Lender any other condition regarding
this Article IV, any Revolving Credit Letter of Credit
or any participation therein;
and the result of the foregoing is directly or indirectly to
increase the cost to such Issuer or such Revolving Credit Lender
of issuing, making or maintaining any Revolving Credit Letter of
Credit or of purchasing or maintaining any participation therein,
or to reduce any amount receivable in respect thereof by such
Issuer or such Revolving Credit Lender, then and in any such case
such Issuer or such Revolving Credit Lender may, at any time
after the additional cost is incurred or the amount received is
reduced, notify the Revolving Credit Borrowers thereof, and the
Revolving Credit Borrowers shall pay on demand such amounts as
such Issuer or Revolving Credit Lender may specify to be
necessary to compensate such Issuer or Revolving Credit Lender
for such additional cost or reduced receipt, together with
interest on such amount from the date demanded until payment in
full thereof at a rate equal at all times to the Alternate Base
Rate plus the Applicable Revolving Loan Margin for Base Rate
Loans plus 5.0% per annum. The determination by such Issuer or
Revolving Credit Lender, as the case may be, of any amount due
pursuant to this Section, as set forth in a statement setting
forth the calculation thereof in reasonable detail, shall, in the
absence of manifest error, be final and conclusive and binding on
all of the parties hereto. In addition to amounts payable as
elsewhere provided in this Article IV, each Revolving Credit
Borrower hereby agrees to protect, indemnify, pay and save each
Issuer harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys fees and allocated costs of
internal counsel) which such Issuer may incur or be subject to as
a consequence, direct or indirect, of
(c the issuance of the Revolving Credit Letters of
Credit, other than as a result of the gross negligence or
wilful misconduct of such Issuer as determined by a court of
competent jurisdiction, or
(d the failure of such Issuer to honor a drawing
under any Revolving Credit Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or
governmental authority.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION V.1. LIBO Rate Lending Unlawful. If any Revolving
Credit Lender shall determine (which determination shall, upon
notice thereof to any Revolving Credit Borrower and the Revolving
Credit Lenders, be conclusive and binding on the Revolving Credit
Borrowers) that the introduction of or any change in or in the
interpretation of any law, in each case after the date upon which
such Revolving Credit Lender shall have become a Revolving Credit
Lender hereunder, makes it unlawful, or any central bank or other
Regulatory Authority asserts, after such date, that it is
unlawful, for such Revolving Credit Lender to make, continue or
maintain any Revolving Credit as, or to convert any Revolving
Credit into, a LIBO Rate Loan, the obligations of such Revolving
Credit Lender to make, continue, maintain or convert any such
LIBO Rate Loan shall, upon such determination, forthwith be
suspended until such Revolving Credit Lender shall notify the
Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans
of such Revolving Credit Lender shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods
with respect thereto or sooner, if required by such law or
assertion. Each Revolving Credit Lender agrees to promptly give
notice to the Administrative Agent and each Revolving Credit
Borrower when the circumstances causing such suspension cease to
exist.
SECTION V.2. Deposits Unavailable. If the Administrative
Agent shall have determined that
(a with respect to any proposed LIBO Rate Loan,
Dollar deposits in the relevant amount and for the relevant
Interest Period are not generally available in the relevant
market; or
(b by reason of circumstances affecting the relevant
market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans for
the relevant Interest Period;
then, upon notice from the Administrative Agent to the Revolving
Credit Borrowers and the Revolving Credit Lenders, the
obligations of all Revolving Credit Lenders under Section 2.3 and
Section 2.4 to make or continue after the relevant Interest
Period any Revolving Credit Loans as, or to convert any Revolving
Credit Loans into, LIBO Rate Loans shall forthwith be suspended
until the Administrative Agent shall notify the Revolving Credit
Borrowers and the Revolving Credit Lenders that the circumstances
causing such suspension no longer exist.
SECTION V.3. Increased LIBO Rate Loan Costs, etc. Each
Revolving Credit Borrower, jointly and severally, agrees to
reimburse each Revolving Credit Lender for any increase in the
cost to such Revolving Credit Lender of, or any reduction in the
amount of any sum receivable by such Revolving Credit Lender in
respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Revolving Credit
Loans as, or of converting (or of its obligation to convert) any
Revolving Credit Loans into, LIBO Rate Loans (except for any
increase taken into account in determining the LIBOR Reserve
Percentage and except for increased capital costs and Taxes which
are governed by Sections 5.5 and 5.6, respectively) that arise in
connection with any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in after
the date hereof of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of
any court, central bank, regulator or other Regulatory Authority.
Such Revolving Credit Lender shall use all commercially
reasonable efforts to promptly notify the Administrative Agent
and the Revolving Credit Borrowers in writing within 90 days of
the occurrence of any such event (which notice shall in any event
be delivered no later than 120 days after the annual audited
financial statements are reported for the fiscal year of such
Revolving Credit Lender ended following the payment and
performance in full of all Obligations, the termination of all
Commitments and the expiration of all Revolving Credit Letters of
Credit), such notice to state, in reasonable detail, the reasons
therefor and the additional amount required fully to compensate
such Revolving Credit Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the
Revolving Credit Borrowers, and the Revolving Credit Borrowers
hereby acknowledge and agree that they are jointly and severally
liable to pay such additional amounts, directly to such Revolving
Credit Lender within five days of its receipt of such notice, and
such notice shall, in the absence of manifest error, be
conclusive and binding on the Revolving Credit Borrowers.
SECTION V.4. Funding Losses. In the event any Revolving
Credit Lender shall incur any loss or expense (including any loss
or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Revolving Credit
Lender to make, continue or maintain any portion of the principal
amount of any Revolving Credit Loan as, or to convert any portion
of the principal amount of any Revolving Credit Loan into, a LIBO
Rate Loan) as a result of
(a any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than
the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b any Revolving Credit Loans not being made as LIBO
Rate Loans in accordance with the Borrowing Request
therefor; or
(c any Revolving Credit Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Revolving Credit Lender to
the Revolving Credit Borrowers (with a copy to the Administrative
Agent) (which notice such Revolving Credit Lender shall use all
commercially reasonable efforts to deliver to the Revolving
Credit Borrowers within 90 days of the occurrence of any such
event and which notice shall in any event be delivered no later
than 120 days after the annual audited financial statements are
reported for the fiscal year of such Revolving Credit Lender
ended following the payment and performance in full of all
Obligations, the termination of all Commitments and the
expiration of all Revolving Credit Letters of Credit), the
Revolving Credit Borrowers shall, and the Revolving Credit
Borrowers hereby acknowledge and agree that they are jointly and
severally liable to pay, within five days of its receipt thereof,
pay directly to such Revolving Credit Lender such amount as will
(in the reasonable determination of such Revolving Credit Lender)
reimburse such Revolving Credit Lender for such loss or expense.
Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Revolving Credit Borrowers.
SECTION V.5. Increased Capital Costs. If any change in, or
the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other
Regulatory Authority, in each case occurring after the applicable
Revolving Credit Lender becomes a Revolving Credit Lender
hereunder, affects or would affect the amount of capital required
or expected to be maintained by any Revolving Credit Lender or
any Person controlling such Revolving Credit Lender, and such
Revolving Credit Lender determines (in good faith but in its sole
and absolute discretion) that the rate of return on its or such
controlling Persons capital as a consequence of the Revolving
Credit Commitments, issuance of the participation in Revolving
Credit Letters of Credit or the Revolving Credit Loans made by
such Revolving Credit Lender is reduced to a level below that
which such Revolving Credit Lender or such controlling Person
could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to
time by such Revolving Credit Lender to the Revolving Credit
Borrowers (which notice such Revolving Credit Lender shall use
all commercially reasonable efforts to deliver to the Borrower
within 90 days of the occurrence of any such event and which
notice shall in any event be delivered no later than 120 days
after the annual audited financial statements are reported for
the fiscal year of such Revolving Credit Lender ended following
the payment and performance in full of all Obligations, the
termination of all Commitments and the expiration of all
Revolving Credit Letters of Credit), the Revolving Credit
Borrowers shall be jointly and severally obligated to immediately
pay directly to such Revolving Credit Lender additional amounts
sufficient to compensate such Revolving Credit Lender or such
controlling Person for such reduction in rate of return. A
statement of such Revolving Credit Lender as to any such
additional amount or amounts (including calculations thereof in
reasonable detail) shall be sent by such Revolving Credit Lender
to the Revolving Credit Borrowers and shall, in the absence of
manifest error, be conclusive and binding on the Revolving Credit
Borrowers. In determining such amount, such Revolving Credit
Lender may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable.
SECTION V.6. Taxes. (a) All payments by the Revolving
Credit Borrowers of principal of, and interest on, or other
amounts in respect of, the Revolving Credit Loans and all other
amounts payable hereunder (including fees) and the Revolving
Credit Notes shall be made free and clear of and without
deduction for any Taxes, except to the extent that any such
withholdings or deductions are required by applicable law, rule
or regulations. In that event, the Revolving Credit Borrowers
shall be jointly and severally obligated to
(i pay directly to the relevant authority the
full amount of Taxes required to be so withheld or
deducted;
(ii promptly forward to the Administrative Agent
an official receipt or other documentation reasonably
satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(iii if such Taxes are Covered Taxes, pay to the
Administrative Agent for the account of the Revolving
Credit Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually
received by each Revolving Credit Lender will equal the
full amount such Revolving Credit Lender would have
received had no such withholding or deduction been
required.
In addition, if the Revolving Credit Borrowers, any
Revolving Credit Lender, or the Administrative Agent is
required by law at any time to pay any Covered Tax on, or
calculated by reference to, any sum received or receivable
by or on behalf of any Revolving Credit Lender or the
Administrative Agent under this Agreement or any Notes, then
(i) with respect solely to any such requirement with respect
to a Revolving Credit Lender or the Administrative Agent,
any applicable Revolving Credit Lender or the Administrative
Agent shall, as promptly as practicable following such
Person having notice of such requirement, give notice to the
Revolving Credit Borrowers of such requirement and (ii) the
Revolving Credit Borrowers shall be jointly and severally
obligated, promptly after having received such notice, to
pay or procure the payment of such Covered Tax. If any the
Revolving Credit Borrower pays any such Covered Taxes as
required by the immediately preceding sentence, then such
Revolving Credit Borrower will promptly forward to the
Administrative Agent an official receipt or other
documentation reasonably satisfactory to the Administrative
Agent evidencing such payment of Covered Taxes to the
relevant taxing authority. Without prejudice to the
preceding provisions, if the Administrative Agent or any
Revolving Credit Lender is required by law to make any
payment on account of Covered Taxes on or in relation to any
sum received under this Agreement or any Note, or any
liability for Covered Taxes in respect of any such sum is
imposed, levied or assessed against any Revolving Credit
Lender or the Administrative Agent, the Revolving Credit
Borrowers will indemnify each such Revolving Credit Lender
and the Administrative Agent for the full amount of Covered
Taxes paid by such Revolving Credit Lender or the
Administrative Agent (as the case may be), whether or not
such Covered Taxes were correctly or legally asserted. Such
indemnification shall be made within 30 days of the demand
of the Revolving Credit Lender or the Administrative Agent
therefor. In addition, if any the Revolving Credit Borrower
fails to remit to the Administrative Agent, for the account
of the respective Revolving Credit Lenders, the required
receipts or other required documentary evidence of its
payment of any Taxes, the Revolving Credit Borrowers shall,
jointly and severally, indemnify the Administrative Agent
and the Revolving Credit Lenders for any incremental Taxes,
interest or penalties that may become payable by the
Administrative Agent and any Revolving Credit Lender as a
result of any such failure. For purposes of this Section
5.6, the transfer by the Administrative Agent or any
Revolving Credit Lender to or for the account of any
Revolving Credit Lender of any sum received from any
Revolving Credit Borrower on account of amounts required to
be paid by the Revolving Credit Borrowers hereunder in
respect of Covered Taxes imposed with respect to the
recipient shall be deemed a payment by the Revolving Credit
Borrowers of such amounts.
(b Each Revolving Credit Lender that is an original
signatory to this Agreement and the Administrative Agent
hereby severally (but not jointly) represent that, under
applicable law and treaties in effect as of the date of the
Loans, no United States federal income taxes will be
required to be withheld by the Administrative Agent or the
Revolving Credit Borrowers with respect to any payments to
be made to such Person in respect of this Agreement. Each
Revolving Credit Lender that is an original signatory hereto
(and each Person which becomes a Revolving Credit Lender by
assignment, transfer or participation pursuant to
Section 11.11 hereof) and the Administrative Agent (and each
Person that becomes the Administrative Agent by appointment
pursuant to Section 10.4 hereof), agrees severally (but not
jointly) that, on or prior to the date of the Revolving
Credit Loans (or on or prior to the date of such assignment,
transfer or appointment, as the case may be) it will in each
case deliver to the Revolving Credit Borrowers and the
Administrative Agent the following:
(i) in the case of a Person other than a Non-U.S.
Revolving Credit Lender, two copies of a statement
certifying that such Person is a U.S. Person, which
statement shall contain the address, if any, of such
Persons office or place of business in the United
States, and shall be signed by an authorized officer of
such Person, together with two duly completed copies of
United States Internal Revenue Service Form W-9 (or
applicable successor form) (unless it establishes to
the reasonable satisfaction of the Administrative Agent
and the Revolving Credit Borrowers that it is otherwise
eligible for an exemption from backup withholding tax
or other applicable withholding tax), or
(ii) in the case of a Non-U.S. Revolving Credit
Lender, either (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 (or
applicable successor form) certifying in each case that
such Person is entitled to receive payments under this
Agreement and the Revolving Credit Notes payable to it
without deduction or withholding of any United States
federal income taxes and two duly completed copies of
United States Internal Revenue Service Form W-8 or Form
W-9 (or applicable successor form) or (B) in the case
of an assignee Revolving Credit Lender that is not a
bank within the meaning of Section 881(c)(3)(A) of the
Code and that does not comply with the requirements of
clause (i) hereof, then a statement in the form of
statement in substantially the form of Exhibit M hereto
(an Exemption Certificate) to the effect that such
assignee Revolving Credit Lender is eligible for a
complete exemption from withholding of United States
withholding tax under Section 871(h) or Section 881(c)
of the Code and two duly completed and signed original
copies of Internal Revenue Service Form W-8.
Each Person who delivers to the Revolving Credit Borrowers
and the Administrative Agent a Form W-8, W-9, 1001 or 4224,
or applicable successor form, pursuant to this clause,
further undertakes to deliver to the Revolving Credit
Borrowers and the Administrative Agent two further copies of
said Form W-8, W-9, 1001, 4224, or applicable successor
form, or other 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 Revolving Credit Borrowers, and such extensions or
renewals thereof as may reasonably be requested by the
Revolving Credit Borrowers, certifying that such Person is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless in any such case any change in law, rule,
regulation, treaty or directive, or in the interpretation or
application thereof (a Law Change), has occurred prior to
the date on which any such delivery would otherwise be
required, which Law Change renders any such form
inapplicable or which would prevent such Person from duly
completing and delivering any such form with respect to it.
The Revolving Credit Borrowers shall not be required to
indemnify any Non-U.S. Revolving Credit Lender, or pay any
additional amounts to any Non-U.S. Revolving Credit Lender,
in respect of United States Federal withholding tax pursuant
to clause (a) above to the extent that the obligation to pay
such additional amounts would not have arisen but for a
failure by such Non-U.S. Revolving Credit Lender to comply
with this clause (b); provided, however, that this clause
(b) shall not limit the indemnity obligations of the
Revolving Credit Borrowers to the Administrative Agent.
Any Revolving Credit Lender claiming any indemnity
payment or additional amounts payable pursuant to this
Section 5.6 shall file any certificate or document
reasonably requested in writing by the Borrower if the
making of such a filing would avoid the need for or reduce
the amount of any such indemnity payment or additional
amount which may thereafter accrue and would not, in the
determination of such Revolving Credit Lender, be otherwise
disadvantageous to such Revolving Credit Lender.
(c) The agreements in this Section shall survive the
termination of this Agreement and the payment of the
Revolving Credit Notes and all other amounts payable
hereunder.
SECTION V.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments by the Revolving Credit Loan
Borrowers pursuant to this Agreement, the Revolving Credit Notes,
or any other Revolving Credit Loan Document shall be made by the
Revolving Credit Borrowers to the Administrative Agent for the
pro rata account of the Revolving Credit Lenders entitled to
receive such payment. All such payments required to be made to
the Administrative Agent shall be made, without setoff, deduction
or counterclaim, not later than 12:00 noon, New York City time,
on the date due, in same day or immediately available funds, to
such account as the Administrative Agent shall specify from time
to time by notice to the Revolving Credit Borrowers. Funds
received after that time shall be deemed to have been received by
the Administrative Agent on the next succeeding Business Day.
The Administrative Agent shall promptly remit on the day it has
received (or is deemed to have received under the preceding
sentence) in same day funds to each Revolving Credit Lender its
share, if any, of such payments received by the Administrative
Agent for the account of such Revolving Credit Lender. All
interest (including interest on LIBO Rate Loans) and fees shall
be computed on the basis of the actual number of days (including
the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate
Loan (calculated at other than the Federal Funds Rate), 365 days
or, if appropriate, 366 days). Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (c) of the
definition of the term Interest Period) be made on the next
succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection
with such payment.
SECTION V.8. Sharing of Payments. If any Revolving Credit
Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on
account of any Revolving Credit Loan (other than pursuant to the
terms of Section 5.3, 5.4, 5.5 or 5.6) in excess of its pro rata
share of payments then or therewith obtained by all Revolving
Credit Lenders, such Revolving Credit Lender shall purchase from
the other Revolving Credit Lenders such participations in
Borrowings made by them as shall be necessary to cause such
purchasing Revolving Credit Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Revolving Credit
Lender, the purchase shall be rescinded and each Revolving Credit
Lender which has sold a participation to the purchasing Revolving
Credit Lender shall repay to the purchasing Revolving Credit
Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Revolving Credit
Lender's ratable share (according to the proportion of
(a) the amount of such selling Revolving Credit
Lender's required repayment to the purchasing Revolving
Credit Lender
to
(b) total amount so recovered from the purchasing
Revolving Credit Lender)
of any interest or other amount paid or payable by the purchasing
Revolving Credit Lender in respect of the total amount so
recovered. The Revolving Credit Borrowers agree that any
Revolving Credit Lender so purchasing a participation from
another Revolving Credit Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 5.9) with respect to such
participation as fully as if such Revolving Credit Lender were
the direct creditor of the Revolving Credit Borrowers in the
amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Revolving Credit
Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Revolving Credit Lender shall, to the
extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the
Revolving Credit Lenders entitled under this Section to share in
the benefits of any recovery on such secured claim.
SECTION V.9. Setoff. Each Revolving Credit Lender shall,
upon the occurrence and during the continuance of any Event of
Default described in clauses (a) through (d) of Section 9.1.9,
or, with the consent of the Required Revolving Credit Lenders,
upon the occurrence and during the continuance of any other Event
of Default, have the right to appropriate and apply to the
payment of all Revolving Credit Obligations then due and payable
to it (whether as a result of stated maturity, acceleration or
otherwise) and after giving effect to the operation of Section
5.8, and (as security for such Revolving Credit Obligations) each
Revolving Credit Borrower hereby grants to each Revolving Credit
Lender a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of such Revolving Credit
Borrower then or thereafter maintained with such Revolving Credit
Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 5.8.
Each Revolving Credit Lender agrees promptly to notify the
Revolving Credit Borrowers and the Administrative Agent after any
such setoff and application made by such Revolving Credit Lender;
provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights
of each Revolving Credit Lender under this Section are in
addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Revolving
Credit Lender may have.
SECTION V.10. Replacement of Revolving Credit Lenders.
Each Revolving Credit Lender hereby severally agrees as set forth
in this Section:
(a) If any Revolving Credit Lender (a Subject Lender)
makes demand upon any Revolving Credit Borrower for (or if
any Revolving Credit Borrower is otherwise required to pay)
amounts pursuant to Section 5.3, 5.5 or 5.6, or gives notice
pursuant to Section 5.1 requiring a conversion of such
Subject Lender's LIBO Rate Loans to Base Rate Loans, or if
such Subject Lender defaults in its obligation to fund
Borrowings hereunder, such Revolving Credit Borrower may,
within 90 days of receipt by such Revolving Credit Borrower
of such demand or notice, or the occurrence of such other
event causing such Revolving Credit Borrower to be required
to pay such compensation), or the occurrence of such
default, as the case may be, give notice (a Replacement
Notice) in writing to the Syndication Agent and such Subject
Lender of its intention to replace such Subject Lender with
a financial institution designated in such Replacement
Notice. If the Syndication Agent shall, in the exercise of
its reasonable discretion and within 30 days of its receipt
of such Replacement Notice, notify the Revolving Credit
Borrowers and such Subject Lender in writing that the
designated financial institution is reasonably satisfactory
to the Syndication Agent, then such Subject Lender shall,
subject to the payment of any amounts due pursuant to
Section 5.4, assign, in accordance with Section 11.11.1, all
of its Revolving Credit Commitments, Revolving Credit Loans,
Revolving Credit Notes and other rights and obligations
under this Agreement and all other Revolving Credit Loan
Documents to such designated financial institution;
provided, however, that (i) such assignment shall be without
recourse, representation or warranty (other than that such
Revolving Credit Lender owns the Revolving Credit
Commitments, Revolving Credit Loans and Revolving Credit
Notes being assigned, free and clear of any Liens) and shall
be on terms and conditions reasonably satisfactory to such
Subject Lender and such designated financial institution and
(ii) the purchase price paid by such designated financial
institution shall be in the amount of such Subject Lender's
Revolving Credit Loans, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts
(other than the amounts demanded and unreimbursed under
Sections 5.3, 5.5 and 5.6, which shall be payable upon
demand by the Revolving Credit Borrowers), owing to such
Subject Lender hereunder.
ARTICLE VI
CONDITIONS TO RESTATEMENT EFFECTIVENESS
SECTION VI.1. Effectiveness. This Agreement, and the
restatement of the Existing Revolving Credit Agreement by this
Agreement, shall become effective upon the satisfaction of each
of the conditions precedent set forth in this Section 6.1.
SECTION VI.1.1. Execution of Counterparts. The Collateral
Agent shall have received counterparts of this Agreement, duly
executed and delivered on behalf of each Revolving Credit
Borrower, each Revolving Credit Lender, the Agents and the
Collateral Agent. By delivery of executed counterparts hereof,
each Revolving Credit Lender shall have evidenced consent to the
amendment and restatement of Sections 3.1, 7.1, 7.2 and 7.3 of
the Existing Term Loan Agreement by the Term Loan Agreement.
SECTION VI.1.2. Resolutions, etc. The Collateral Agent
shall have received from each Revolving Credit Obligor, (i) a
copy of a good standing certificate, dated a date reasonably
close to the Restatement Effective Date, for each such Person and
(ii) a certificate, dated the Restatement Effective Date and with
counterparts for each Revolving Credit Lender, duly executed and
delivered by such Persons Secretary or Assistant Secretary as to
(a) resolutions of each such Persons Board of
Directors then in full force and effect authorizing, to the
extent relevant, the credit extensions to be made pursuant
to this Agreement, the execution, delivery and performance
of this Agreement, the Revolving Credit Notes, each other
Revolving Credit Document to be executed by such Person and
the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its
officers or managing members authorized to act with respect
to this Agreement, the Revolving Credit Notes and each other
Revolving Credit Document to be executed by such Person; and
(c) the full force and validity of each Organic
Document of such Person and copies thereof,
upon which certificates each Agent, the Collateral Agent and
Revolving Credit Lender may conclusively rely until it shall have
received a further certificate of the Secretary, Assistant
Secretary or other duly authorized representative of any such
Person canceling or amending the prior certificate of such
Person.
SECTION VI.1.3. Affirmation and Consent. The Collateral
Agent shall have received an affirmation and consent in the form
set forth as Exhibit O hereto, executed and delivered by an
Authorized Officer of each Revolving Credit Obligor (other than a
Revolving Credit Borrower)
SECTION VI.1.4. Restatement Effective Date Certificate.
The Collateral Agent shall have received, with counterparts for
each Agent and Revolving Credit Lender, the Restatement Effective
Date Certificate, dated as of the Restatement Effective Date,
appropriately completed and duly executed and delivered by an
Authorized Officer of each Revolving Credit Borrower, in which
certificates such Revolving Credit Borrower shall agree and
acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties of such
Revolving Credit Borrower. All documents and agreements required
to be appended to the Restatement Effective Date Certificate
shall be in form and substance satisfactory to the Syndication
Agent.
SECTION VI.1.5. Perfection Certificate. The Collateral
Agent shall have received Perfection Certificates, dated the
Restatement Effective Date, duly executed and delivered by an
Authorized Officer of each Revolving Credit Borrower.
SECTION VI.1.6. Opinions of Counsel. The Collateral Agent
shall have received the following opinions, dated the Restatement
Effective Date and addressed to the Agents, the Collateral Agent
and all Revolving Credit Lenders:
(a) the executed legal opinion of Paul, Weiss,
Rifkind, Wharton and Garrison, special New York counsel to
the Term Loan Borrower and the Revolving Credit Borrowers,
satisfactory in form and substance to the Collateral Agent
and its counsel;
(b) the executed legal opinion of David Schreibman,
Vice President and General Counsel of the Term Loan Borrower
and the Revolving Credit Borrowers, satisfactory in form and
substance to the Collateral Agent and its counsel; and
(c) the executed legal opinions of local counsel
(acceptable to the Collateral Agent) to the Revolving Credit
Obligors in each jurisdiction which the Collateral Agent may
reasonably request, satisfactory in form and substance to
the Collateral Agent and its counsel.
Each such legal opinion shall cover such other matters incident
to the transactions contemplated by this Agreement as the
Collateral Agent may reasonably require.
SECTION VI.1.7. Closing Fees, Expenses, etc. The Agents
and the Arranger shall have received, each for its own account,
or, in the case of the Administrative Agent, for the account of
each Revolving Credit Lender, as the case may be, all fees, costs
and expenses due and payable pursuant to Sections 3.3 and 11.3,
if then invoiced.
SECTION VI.2. All Revolving Credit Extensions. The
obligation of each Revolving Credit Lender to make any Revolving
Credit Extension (including the initial Revolving Credit
Extension) shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 6.2.
SECTION VI.2.1. Compliance with Warranties, No Default,
etc. Both before and after giving effect to any Revolving Credit
Extension (but, if any Default of the nature referred to in
Section 9.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application, directly
or indirectly, of the proceeds of any Borrowing) the following
statements shall be true and correct:
(a) the representations and warranties set forth in
Article VI of the Term Loan Agreement as in effect on the
date hereof, unless the Required Revolving Credit Lenders
shall otherwise consent (excluding, however, those contained
in Section 6.7 of the Term Loan Agreement as in effect on
the date hereof, unless the Required Revolving Credit
Lenders shall otherwise consent) shall be true and correct
with the same effect as if then made (unless stated to
relate solely to an early date, in which case such
representations and warranties shall be true and correct as
of such earlier date);
(b) except as disclosed by any Revolving Credit
Borrower to the Syndication Agent and the Revolving Credit
Lenders pursuant to Section 6.7 of the Term Loan Agreement
as in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be
pending or, to the knowledge of any Revolving Credit
Borrower, threatened in writing against any Revolving
Credit Borrower or any of its Subsidiaries which could
reasonably be expected to materially adversely affect
the consolidated businesses, operations, assets,
revenues, properties or prospects of the Term Loan
Borrower, the Revolving Credit Borrowers or any of
their Subsidiaries or which purports to materially
adversely affect the legality, validity or
enforceability of this Agreement, the Notes or any
other Revolving Credit Document; and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed
pursuant to Section 6.7 of the Term Loan Agreement as
in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent, which
could reasonably be expected to have a Material Adverse
Effect; and
(c) no Default shall have then occurred and be
continuing, and neither any Revolving Credit Borrower, any
other Revolving Credit Obligor, nor any of their respective
Subsidiaries are in material violation of any law or
governmental regulation or court order or decree.
SECTION VI.2.2. Credit Request. The Administrative Agent
shall have received a Borrowing Request or Issuance Request, as
the case may be, for such Revolving Credit Extension. Each of
the delivery of a Borrowing Request or an Issuance Request and
the acceptance by the applicable Revolving Credit Borrower of the
proceeds of the Borrowing or the issuance of the Revolving Credit
Letter of Credit, as applicable, shall constitute a
representation and warranty by each Revolving Credit Borrower
that on the date of such Borrowing (both immediately before and
after giving effect to such Borrowing and the application of the
proceeds thereof) or the issuance of the Revolving Credit Letter
of Credit, as applicable, the statements made in Section 6.2.1
are true and correct.
SECTION VI.2.3. Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of any
Revolving Credit Borrower or any of its Subsidiaries or any other
Revolving Credit Obligors shall be satisfactory in form and
substance to the Collateral Agent and its counsel; the Collateral
Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Collateral
Agent or its counsel may reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Revolving Credit Lenders, the Agents
and the Collateral Agent to enter into this Agreement, continue
the Existing Revolving Credit Loans hereunder and to make
Revolving Credit Loans and issue Revolving Credit Letters of
Credit hereunder, the Revolving Credit Borrowers jointly and
severally hereby (i) represent and warrant to the Agents, the
Collateral Agent and each Revolving Credit Lender that each of
the representations and warranties set forth in Article VI of the
Term Loan Agreement as in effect the date hereof, unless the
Required Revolving Credit Lenders shall otherwise consent, is
true and correct on and as of the Restatement Effective Date and
on the dates and to the extent provided in Section 6.2 and (ii)
agree that such representations and warranties are by this
reference deemed incorporated herein mutatis mutandis, as if set
forth at length herein, notwithstanding the termination of the
Term Loan Agreement.
ARTICLE VIII
COVENANTS
SECTION VIII.1. Affirmative Covenants. The Revolving
Credit Borrowers jointly and severally agree with the Agents and
the Collateral Agent and each Revolving Credit Lender that, until
all Revolving Credit Commitments have terminated and all
Revolving Credit Obligations have been paid and performed in
full, each of the Revolving Credit Borrowers will perform the
obligations set forth in this Section 8.1.
SECTION VIII.1.1. Affirmative Covenants in Term Loan
Agreement. Each Revolving Credit Borrower hereby agrees (on a
joint and several basis with each of the other Revolving Credit
Borrowers) that, unless and until the Revolving Credit
Obligations have been paid and performed in full, the Revolving
Credit Commitments have terminated and the Revolving Credit
Letters of Credit have (x) expired or been returned to the
Issuers or (y) been cash collateralized to the reasonable
satisfaction of the Agents and the Issuer, such Revolving Credit
Borrower shall not, and shall not permit any of its Subsidiaries
to, take any action, and shall refrain from taking action, that
would result in a violation of the covenants of the Term Loan
Borrower contained in Section 7.1 of the Term Loan Agreement as
in effect on the date hereof, notwithstanding the termination of
the Term Loan Agreement, unless the Required Revolving Credit
Lenders shall otherwise consent. Each such agreement, covenant
and obligation contained in Section 7.1 of the Term Loan
Agreement and all other terms of the Term Loan Agreement and the
documents executed in connection therewith to which reference is
made therein, together with all related definitions and ancillary
provisions, each as in effect on the date hereof, is hereby
incorporated into this Agreement by reference as though
specifically set forth in this Section 8.1.1, and each such
agreement, covenant and obligation shall, for purposes hereof,
survive the termination of the Term Loan Agreement.
SECTION VIII.1.2. Use of Proceeds. Each Revolving Credit
Borrower shall apply the proceeds of the Revolving Credit Loans
for general corporate and working capital purposes of such
Revolving Credit Borrower and its Subsidiaries.
SECTION VIII.1.3. Additional Collateral.
(a) Upon any Person becoming, after the date hereof,
either a direct or indirect Subsidiary of any Revolving
Credit Borrower, or upon any Revolving Credit Borrower
directly or indirectly acquiring additional Capital Stock of
any existing Subsidiary having voting rights or contingent
voting rights, such Revolving Credit Borrower shall notify
the Collateral Agent of such acquisition, and, within 45
days thereafter, unless otherwise agreed to among such
Revolving Credit Borrower, the Collateral Agent and the
Required Revolving Credit Lenders,
(i) subject to the last sentence of this Section,
such Person shall, if it is a U.S. Subsidiary,
(i) execute and deliver to the Collateral Agent a copy
of (A) the Subsidiary Guaranty and (B) the Subsidiary
Security Agreement and (ii) to the extent such U.S.
Subsidiary is required to pledge stock of a Subsidiary
pursuant to clause (a)(ii) of this Section 8.1.3,
become a party to the Subsidiary Pledge Agreement, if
not already a party thereto as a pledgor, in a manner
satisfactory to the Collateral Agent;
(ii) subject to the last sentence of this
Section, such Revolving Credit Borrower and each U.S.
Subsidiary shall, pursuant to the Subsidiary Pledge
Agreement (as supplemented, if necessary, by a Foreign
Pledge Agreement), pledge to the Collateral Agent, for
its benefit and that of the Agents and the Revolving
Credit Lenders and the Issuers, all of the outstanding
shares of capital stock of (i) any Subsidiary owned
directly by the Borrower or such Subsidiary (provided,
that, subject to the last sentence of this Section, not
more than 65% of the capital stock of any non-U.S.
Subsidiary shall be so pledged), along with undated
stock powers for such certificates, executed in blank
(or, if any such shares of capital stock are
uncertificated, confirmation and evidence satisfactory
to the Collateral Agent that the security interest in
such uncertificated securities has been transferred to
and perfected by the Collateral Agent, for the benefit
of the Agents and the Revolving Credit Lenders and the
Issuers, in accordance with Section 9-115 of the U.C.C.
or any other similar or local or foreign law which may
be applicable); and
(iii) subject to the last sentence of this
Section, such Revolving Credit Borrower and each U.S.
Subsidiary shall, pursuant to the Subsidiary Pledge
Agreement, pledge to the Collateral Agent for its
benefit and that of the Agents and the Revolving Credit
Lenders and the Issuer, all intercompany notes
evidencing Indebtedness in favor of such Revolving
Credit Borrower or such U.S. Subsidiary (which shall,
unless the Collateral Agent shall otherwise agree, be
in the form of Exhibit A to the Subsidiary Pledge
Agreement), as the case may be;
together, in each case, with such opinions of legal counsel
for such Revolving Credit Borrower relating thereto, which
legal opinions shall be in form and substance reasonably
satisfactory to the Collateral Agent. Each Revolving Credit
Borrower agrees that if, as a result of a change in law
after the date hereof, (i) a non-U.S. Subsidiary of any
Revolving Credit Borrower is permitted to execute and
deliver the Subsidiary Guaranty or become a party to the
Subsidiary Pledge Agreement as a pledgor or (ii) any
Revolving Credit Borrower or any Subsidiary thereof is
permitted to pledge more than 65% of the capital stock of
any non-U.S. Subsidiary or any intercompany Indebtedness of
any direct and indirect Subsidiary of any Revolving Credit
Borrower evidenced by a note or other instrument, in any
such case without material adverse tax consequences to such
Revolving Credit Borrower or such Subsidiary, then the
provisions of clause (a)(i) of this Section 8.1.3 shall
thereafter apply to any non-U.S. Subsidiary and/or (as the
case may be) the provisions of clause (a)(ii) of this
Section 8.1.3 shall thereafter apply to 100% of the capital
stock of such non-U.S. Subsidiary.
(b) Each Revolving Credit Borrower shall, and shall
cause each of its U.S. Subsidiaries to, unless otherwise
agreed to by such Revolving Credit Borrower, the Collateral
Agent and the Required Revolving Credit Lenders, cause the
Collateral Agent, the Issuers and the Revolving Credit
Lenders to have at all times a first priority perfected
security interest (subject only to Liens and encumbrances
permitted under Section 7.2.4 of the Term Loan Agreement as
in effect on the date hereof, unless the Required Revolving
Credit Lenders shall otherwise consent) in all of the
property (real and personal) hereafter acquired from time to
time by such Revolving Credit Borrower and such U.S.
Subsidiaries (other than the Receivables Subsidiary) to the
extent the same constitutes or would constitute Collateral
under each of the Security Agreements and under each of the
Revolving Credit Mortgages. Without limiting the generality
of the foregoing, each Revolving Credit Borrower shall, and
shall cause each of its U.S. Subsidiaries (other than the
Receivables Subsidiary) to, execute, deliver and/or file (as
applicable) or cause to be executed, delivered and/or filed
(as applicable), the Subsidiary Pledge Agreement, the
Subsidiary Security Agreement, Uniform Commercial Code (Form
UCC-1) financing statements, Uniform Commercial Code (Form
UCC-3) termination statements, and other documentation
necessary to grant and perfect such security interest, in
each case in form and substance reasonably satisfactory to
the Collateral Agent together, in each case, with such
opinions of legal counsel for the applicable Revolving
Credit Borrower relating thereto, which legal opinions shall
be in form and substance reasonably satisfactory to the
Collateral Agent.
SECTION VIII.2. Negative Covenants. The Revolving Credit
Borrowers jointly and severally agree with the Agents and the
Collateral Agent and each Revolving Credit Lender that, until all
Revolving Credit Commitments have terminated and all Revolving
Credit Obligations have been paid and performed in full, each of
the Revolving Credit Borrowers will perform the obligations set
forth in this Section 8.2.
SECTION VIII.2.1. Negative Covenants in Term Loan
Agreement. Each Revolving Credit Borrower hereby agrees (on a
joint and several basis with each of the other Revolving Credit
Borrowers) that, unless and until the Revolving Credit
Obligations have been paid and performed in full, the Revolving
Credit Commitments have terminated and the Revolving Credit
Letters of Credit have (x) expired or been returned to the
Issuers or (y) been cash collateralized to the reasonable
satisfaction of the Agents and the Issuer, such Revolving Credit
Borrower shall not, and shall not permit any of its Subsidiaries
to, take any action, and shall refrain from taking action, that
would result in a violation of the covenants of the Term Loan
Borrower contained in Sections 7.2 and 7.3 of the Term Loan
Agreement, notwithstanding the termination of the Term Loan
Agreement as in effect on the date hereof, unless the Required
Revolving Credit Lenders shall otherwise consent. Each such
agreement, covenant and obligation contained in Sections 7.2 and
7.3 of the Term Loan Agreement and all other terms of the Term
Loan Agreement and the documents executed in connection therewith
to which reference is made therein, together with all related
definitions and ancillary provisions, each as in effect on the
date hereof, is hereby incorporated into this Agreement by
reference as though specifically set forth in this Section 8.2.1,
and each such agreement, covenant and obligation shall, for
purposes hereof, survive the termination of the Term Loan
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
SECTION IX.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 9.1
shall constitute an Event of Default.
SECTION IX.1.1. Non-Payment of Obligations. Any Revolving
Credit Borrower shall default in the payment or prepayment when
due of (a) any principal of any Revolving Credit Loan or any
Reimbursement Obligations or any deposit of cash for collateral
purposes pursuant to Section 4.5 or Section 4.7, as the case may
be, or (b) any Revolving Credit Obligor (including any Revolving
Credit Borrower) shall default in the payment when due of any
interest or commitment fee with respect to the Revolving Credit
Loans or Revolving Credit Commitments or of any other monetary
Revolving Credit Obligation and such default shall continue
unremedied for a period of three Business Days.
SECTION IX.1.2. Breach of Warranty. Any representation or
warranty of any Revolving Credit Borrower or any other Revolving
Credit Obligor made or deemed to be made hereunder or in any
other Revolving Credit Document executed by it or any other
writing or certificate (including the Restatement Effective Date
Certificate) furnished by or on behalf of any Revolving Credit
Borrower or any other Revolving Credit Obligor to the Agents, the
Collateral Agent, the Arranger or any Revolving Credit Lender for
the purposes of or in connection with this Agreement or any such
other Revolving Credit Document (including any certificates
delivered pursuant to Article VI), is or shall be incorrect in
any material respect when made or deemed to have been made.
SECTION IX.1.3. Non-Performance of Certain Covenants and
Obligations. Any Revolving Credit Borrower shall default in the
due performance and observance of any of its obligations under
Sections 8.1.2, 8.1.3 or 8.2.
SECTION IX.1.4. Non-Performance of Other Covenants and
Obligations. Any Revolving Credit Borrower or any other
Revolving Credit Obligor shall default in the due performance and
observance of any other agreement contained herein or in any
other Revolving Credit Document executed by it, and such default
shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Revolving Credit Borrowers
by any Agent, the Collateral Agent or any Revolving Credit
Lender.
SECTION IX.1.5. Default on Other Indebtedness. A default
shall occur (i) in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise,
of any Indebtedness (other than Indebtedness described in
Section 9.1.1) of any Revolving Credit Borrower or any of its
Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $5,000,000, or (ii) a default shall occur
in the performance or observance of any obligation or condition
with respect to such Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of
time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause
or declare such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION IX.1.6. Judgments. Any judgment or order for the
payment of money in excess of $5,000,000 (not covered by
insurance from a responsible insurance company that is not
denying its liability with respect thereto) shall be rendered
against any Revolving Credit Borrower or any of its Subsidiaries
and remain unpaid and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order,
or (ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
SECTION IX.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan: (i) the
termination of any Pension Plan if, as a result of such
termination, any Revolving Credit Borrower would be required to
make a contribution to such Pension Plan, or would reasonably
expect to incur a liability or obligation to such Pension Plan,
in excess of $1,000,000, or (ii) a contribution failure occurs
with respect to any Pension Plan sufficient to give rise to a
Lien under section 302(f) of ERISA in an amount in excess of
$1,000,000.
SECTION IX.1.8. Change in Control. Any Change in Control
shall occur.
SECTION IX.1.9. Bankruptcy, Insolvency, etc. Any Revolving
Credit Borrower or any of its Subsidiaries or any other Revolving
Credit Obligor shall
(a) apply for, approve, consent to, or acquiesce in,
the appointment of a trustee, receiver, sequestrator or
other custodian for such Revolving Credit Borrower, any such
Subsidiary or any other Revolving Credit Obligor or any
property of any thereof, or make a general assignment for
the benefit of creditors;
(b) in the absence of such application, approval,
consent, acquiescence or assignment, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator
or other custodian for such Revolving Credit Borrower, any
such Subsidiary or any other Revolving Credit Obligor or for
a substantial part of the property of any thereof, and (x)
such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days or (y) such Revolving
Credit Borrower, any such Subsidiary or any other Revolving
Credit Obligor takes any action in furtherance of such
appointment; provided, that such Revolving Credit Borrower,
each such Subsidiary and each other Revolving Credit Obligor
hereby expressly authorizes the Collateral Agent and each
Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents;
(c) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in
respect of such Revolving Credit Borrower or any of its
Subsidiaries or any other Revolving Credit Obligor (or any
such Revolving Credit Borrower, any such Subsidiary or any
other Revolving Credit Obligor shall take any action in
furtherance of any of the foregoing), and, if any such case
or proceeding is not commenced by such Revolving Credit
Borrower or such Subsidiary or such other Revolving Credit
Obligor, such case or proceeding shall be consented to or
acquiesced in by such Revolving Credit Borrower or such
Subsidiary or such other Revolving Credit Obligor or shall
result in the entry of an order for relief or shall remain
for 60 days undismissed; provided that such Revolving Credit
Borrower, each such Subsidiary and each other Revolving
Credit Obligor hereby expressly authorizes the Collateral
Agent and each Revolving Credit Lender to appear in any
court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights
under the Revolving Credit Loan Documents; or
(d) take any action (corporate or otherwise)
authorizing any of the foregoing; or
(e) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, its
debts as they become due.
SECTION IX.1.10. Impairment of Security, etc. Any
Revolving Credit Security Document shall (except in accordance
with its terms), in whole or in part, cease to be effective or
cease to be the legally valid, binding and enforceable obligation
any Revolving Credit Borrower or any other Revolving Credit
Obligor, as the case may be; any Revolving Credit Borrower or any
other Revolving Credit Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding
nature or enforceability; or, except as permitted under any
Revolving Credit Security Document, any Lien securing any
Revolving Credit Obligation shall, in whole or in part, cease to
be a perfected first priority Lien.
SECTION IX.1.11. Term Loan Agreement Event of Default. (i)
Any Event of Default under and as defined in the Term Loan
Agreement shall have occurred and be continuing; or (ii) any
termination event under and as defined in the Receivables Sale
Agreement as in effect on the date hereof, or any event entitling
the Persons financing the Receivables to stop funding the
purchase of Receivables from all sellers of Receivables under any
subsequent Receivables Sale Agreement, shall have occurred and be
continuing.
SECTION IX.2. Action if Bankruptcy, etc. If any Event of
Default described in clauses (a) through (d) of Section 9.1.9
shall occur with respect to any Revolving Credit Obligor, the
Revolving Credit Commitments (if not theretofore terminated)
shall automatically terminate and the outstanding principal
amount of all outstanding Revolving Credit Loans and all other
Revolving Credit Obligations shall automatically be and become
immediately due and payable, without notice or demand.
SECTION IX.3. Action if Other Event of Default. If any
Event of Default (other than an Event of Default described in
clauses (a) through (d) of Section 9.1.9 with respect to any
Revolving Credit Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Revolving Credit
Lenders, shall by notice to the Revolving Credit Borrowers
declare all or any portion of the outstanding principal amount of
the Revolving Credit Loans and other Revolving Credit Obligations
to be due and payable, and/or declare the Revolving Credit
Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Revolving Credit Loans
and other Revolving Credit Obligations which shall be so declared
due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the
case may be, the Revolving Credit Commitments shall terminate.
ARTICLE X
THE AGENTS
SECTION X.1. Actions. Each Revolving Credit Lender hereby
appoints DLJ as its Syndication Agent and Collateral Agent and
ABN as its Administrative Agent under and for purposes of this
Agreement, the Revolving Credit Notes and each other Loan
Document. Each Revolving Credit Lender authorizes the Agents and
the Collateral Agent to act on behalf of such Revolving Credit
Lender under this Agreement, the Revolving Credit Notes and each
other Loan Document and, in the absence of other written
instructions from the Required Revolving Credit Lenders received
from time to time by the Agents and the Collateral Agent (with
respect to which each of the Agents and the Collateral Agent
agrees that it will comply, except as otherwise provided in this
Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to
or required of the Agents and the Collateral Agent by the terms
hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Revolving Credit Lender
acknowledges and consents to DLJ's acting as Syndication Agent
and Collateral Agent and ABN's acting as Administrative Agent and
for the Term Loan Lenders under the Term Loan Agreement and the
other Revolving Credit Documents. Each Revolving Credit Lender
hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Agents and the Collateral Agent, ratably
in accordance with their respective Revolving Credit Loans
outstanding and Revolving Credit Commitments (or, if no Revolving
Credit Loans or Revolving Credit Commitments are at the time
outstanding and in effect, then ratably in accordance with the
principal amount of Revolving Credit Loans held by such Revolving
Credit Lender, and their respective Revolving Credit Commitments
as in effect in each case on the date of the termination of this
Agreement), from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, either of the Agents or the
Collateral Agent in any way relating to or arising out of this
Agreement, the Revolving Credit Notes and any other Loan
Document, including reasonable attorneys fees, and as to which
any Agent is not reimbursed by the Revolving Credit Borrowers or
any other Revolving Credit Obligor (and without limiting the
obligation of the Revolving Credit Borrowers or any other
Revolving Credit Obligor to do so); provided, however, that no
Revolving Credit Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted
solely from such Agents or the Collateral Agents gross negligence
or willful misconduct. The Agents and the Collateral Agent
shall not be required to take any action hereunder, under the
Revolving Credit Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the
Revolving Credit Notes or any other Loan Document, unless it is
indemnified hereunder to its satisfaction; provided, however,
that, notwithstanding the foregoing, (i) no Agent or the
Collateral Agent shall be obligated to take any action which is
inconsistent with the terms of this Agreement or any Loan
Document, (ii) no Agent or the Collateral Agent shall be
obligated to take any action which exposes it to personal
liability or which, in its judgment is contrary to applicable
law, and (iii) no Agent or the Collateral Agent shall have any
right or be obligated or entitled to enforce any right or remedy
contained herein, in any Loan Document or available at law or
equity (other that the rights of set off) except through the
Collateral Agent who is hereby granted sole and exclusive
authority on behalf of the Agents with respect thereto. If any
indemnity in favor of either of the Agents or the Collateral
Agent shall be or become, in such Agents or the Collateral Agents
determination, inadequate, the Agents or the Collateral Agent may
call for additional indemnification from the Revolving Credit
Lenders and cease to do the acts indemnified against hereunder
until such additional indemnity is given.
SECTION X.2. Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Revolving Credit Lender by 5:00
p.m., New York City time, on the day prior to a Borrowing that
such Revolving Credit Lender will not make available the amount
which would constitute its Revolving Credit Percentage of such
Borrowing on the date specified therefor, the Administrative
Agent may assume that such Revolving Credit Lender has made such
amount available to the Administrative Agent and, in reliance
upon such assumption, make available to the Revolving Credit
Borrowers a corresponding amount. If and to the extent that such
Revolving Credit Lender shall not have made such amount available
to the Administrative Agent, such Revolving Credit Lender and the
Revolving Credit Borrowers severally agree to repay the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the
Revolving Credit Borrowers to the date such amount is repaid to
the Administrative Agent, at the interest rate applicable at the
time to Revolving Credit Loans comprising such Borrowing.
SECTION X.3. Exculpation. None of the Agents, the
Collateral Agent or the Arranger nor any of their
respective directors, officers, employees or Agents shall be
liable to any Revolving Credit Lender for any action taken or
omitted to be taken by it under this Agreement or any other
Revolving Credit Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein
or therein, nor for the effectiveness, enforceability,
sufficiency, validity or due execution of this Agreement or any
other Revolving Credit Document, nor for the creation,
attachment, perfection or priority of any Liens purported to be
created by any of the Revolving Credit Documents, or the
validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Revolving Credit Borrowers of
their obligations hereunder or under any other Revolving Credit
Document. Any such inquiry which may be made by any Agent or the
Collateral Agent shall not obligate it to make any further
inquiry or to take any action. No Agent or the Collateral Agent
shall have any duties or responsibilities except those
specifically set forth in this Agreement and the other Revolving
Credit Documents and shall not by reason of the relationship
established herein be a trustee of fiduciary of any other Agent,
the Collateral Agent or any Lender. Unless it specifically
agrees to do so in writing, no Agent shall be obligated to
initiate, conduct or supervise any litigation or collection
proceedings, whether in bankruptcy or otherwise, any work-out or
post-default negotiations or take any other similar actions;
provided, that, at the written request of the Required Revolving
Credit Lenders, the Administrative Agent shall be obligated to
foreclose upon or set off against the cash collateral deposited
with it under clause (c) of Section 3.1 in accordance with
Section 5.9. Each Agent and the Collateral Agent shall be
entitled to rely: (a) upon any certification, notice or other
communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person
or Persons; and (b) upon advice and statements of legal counsel,
independent accountants and other experts selected by it in good
faith. As to any matters not expressly provided for by this
Agreement or any Revolving Credit Document, each Agent and the
Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Required Revolving Credit Lenders; and
such instructions of the Required Revolving Credit Lenders and
any action taken or failure to act pursuant thereto shall be
binding on all of the Revolving Credit Lenders.
SECTION X.4. Successor. The Administrative Agent, the
Syndication Agent and the Collateral Agent may resign as such at
any time upon at least 30 days prior notice to the Revolving
Credit Borrowers, the Syndication Agent, all Revolving Credit
Lenders and, in the case of the Administrative Agent, the
Collateral Agent, and, in the case of the Collateral Agent, the
Administrative Agent. If the Administrative Agent, the
Syndication Agent or the Collateral Agent at any time shall
resign, the Required Revolving Credit Lenders may, with the prior
consent of the Revolving Credit Borrowers and the Syndication
Agent (which consents shall not be unreasonably withheld or
delayed), appoint another Lender as a successor Administrative
Agent or the Collateral Agent which shall thereupon become the
Administrative Agent or the Collateral Agent hereunder. If no
successor Administrative Agent, Syndication Agent or Collateral
Agent shall have been so appointed by the Required Revolving
Credit Lenders, and shall have accepted such appointment, within
30 days after the retiring Administrative Agents, Syndication
Agents or Collateral Agents giving notice of resignation, then
the retiring Administrative Agent, Syndication Agent or
Collateral Agent may, on behalf of the Revolving Credit Lenders,
appoint a successor Administrative Agent, Syndication Agent or
Collateral Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of
at least $500,000,000. Notwithstanding the foregoing, for so
long as ABN shall act as Administrative Agent, if no successor
Administrative Agent has been named and accepted its appointment
as Administrative Agent, then ABN shall be permitted to resign
and the Syndication Agent or the Collateral Agent shall succeed
to the responsibilities of ABN as Administrative Agent; provided,
that at no time during the period commencing with the
Administrative Agent tendering its notice of resignation and
ending at the time that a successor Administrative Agent is
named, may DLJ resign as either the Syndication Agent or the
Collateral Agent. Upon the acceptance of any appointment as
Administrative Agent, Syndication Agent or Collateral Agent
hereunder by a successor Administrative Agent, Syndication Agent
or Collateral Agent, such successor Administrative Agent,
Syndication Agent or Collateral Agent shall be entitled to
receive from the retiring Administrative Agent, Syndication Agent
or Collateral Agent such documents of transfer and assignment as
such successor Administrative Agent, Syndication Agent or
Collateral Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, Syndication
Agent or Collateral Agent, and the retiring Administrative Agent
or Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
Administrative Agents, Syndication Agents or Collateral Agents
resignation hereunder as the Administrative Agent, Syndication
Agent or Collateral Agent, the provisions of
(a) this Article X shall inure to its benefit as to
any actions taken or omitted to be taken by the retiring
Administrative Agent, retiring Syndication Agent or retiring
Collateral Agent while it was the Administrative Agent, the
Syndication Agent or the Collateral Agent under this
Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to
inure to its benefit.
SECTION X.5. Revolving Credit Loans and Revolving Credit
Letters of Credit by each Agent and the Collateral Agent. Each
Agent and the Collateral Agent and the Issuer shall have the
same rights and powers with respect to (x) (i) in the case of the
Agents and the Collateral Agent, the Revolving Credit Loans and
Revolving Credit Letters of Credit made by it or any of its
Affiliates and (ii) in the case of the Issuer, the Revolving
Credit Loans made by it or any of its Affiliates, and (y) the
Revolving Credit Notes held by it or any of its Affiliates as any
other Revolving Credit Lender and may exercise the same as if it
were not an Agent or the Collateral Agent. Each Agent and the
Collateral Agent and each of their respective Affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Revolving Credit Borrowers or any
Subsidiary or Affiliate of the Revolving Credit Borrowers as if
such Agent or Collateral Agent were not an Agent or Collateral
Agent hereunder.
SECTION X.6. Credit Decisions. Each Revolving Credit
Lender acknowledges that it has, independently of each Agent, the
Collateral Agent, the Documentation Agent, the Arranger and each
other Revolving Credit Lender, and based on such Revolving Credit
Lender's review of the financial information of the Revolving
Credit Borrowers, this Agreement, the other Loan Documents (the
terms and provisions of which being satisfactory to such
Revolving Credit Lender) and such other documents, information
and investigations as such Revolving Credit Lender has deemed
appropriate, made its own credit decision to extend its Revolving
Credit Commitment. Each Revolving Credit Lender also
acknowledges that it will, independently of each Agent, the
Collateral Agent, the Documentation Agent, the Arranger and each
other Revolving Credit Lender, and based on such other documents,
information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan
Document.
SECTION X.7. Copies, etc. Either Agent or the Collateral
Agent shall give prompt notice to each Revolving Credit Lender of
each notice or request required or permitted to be given to such
Agent or Collateral Agent by any Revolving Credit Borrower
pursuant to the terms of this Agreement (unless concurrently
delivered to the Revolving Credit Lenders by a Revolving Credit
Borrower). To the extent that either Agent or the Collateral
Agent receives any document or instrument or other communication
for distribution to the Revolving Credit Lenders, such Agent or
the Collateral Agent will distribute to each Revolving Credit
Lender each document or instrument received for its account and
copies of all other communications received by such Agent or the
Collateral Agent from any Revolving Credit Borrower for
distribution to the Revolving Credit Lenders by such Agent or
the Collateral Agent in accordance with the terms of this
Agreement (except, in the case of non-public information, as any
such Revolving Credit Lender shall have notified the Revolving
Credit Borrowers and such Agent or the Collateral Agent in
writing that such Revolving Credit Lender shall not be furnished
with such document or instrument). Except for notices, reports
and other documents and information expressly required to be
furnished to the Revolving Credit Lenders by an Agent or the
Collateral Agent hereunder or under a Loan Document, no Agent or
the Collateral Agent shall have any duty or responsibility to
provide any other Agent or the Collateral Agent or Revolving
Credit Lender with any credit or other information concerning the
affairs, financial condition or business of any Revolving Credit
Borrower (or any of their Affiliates) which may come into the
possession of such Agent or the Collateral Agent or any of their
Affiliates.
SECTION X.8. The Syndication Agent, the Documentation
Agent, the Administrative Agent and the Collateral Agent.
Notwithstanding anything else to the contrary contained in this
Agreement or any other Loan Document, the Agents, the Collateral
Agent and the Documentation Agent, in their respective capacities
as such, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document
nor any fiduciary relationship with any Revolving Credit Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against either Agent, the Collateral Agent or the
Documentation Agent, as applicable, in such capacity except as
are explicitly set forth herein or in the other Loan Documents.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION XI.1. Waivers, Amendments, etc. The provisions of
this Agreement and of each other Revolving Credit Document may
from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to
by each Revolving Credit Borrower (as to this Agreement and each
other Revolving Credit Document to which such Revolving Credit
Borrower is a party) and the Required Revolving Credit Lenders;
provided, however, that no such amendment, modification or waiver
which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Revolving Credit
Lenders or by the Required Revolving Credit Lenders shall be
effective unless consented to by each Revolving Credit
Lender;
(b) modify this Section 11.1, change the definition of
Required Revolving Credit Lenders, increase any Revolving
Credit Commitment Amount or the Percentage of any Revolving
Credit Lender, reduce any fees described in Article III,
release all or substantially all collateral security, except
as otherwise specifically provided in any Revolving Credit
Document or extend any Revolving Credit Commitment
Termination Date shall be made without the consent of each
Revolving Credit Lender and each holder of a Revolving
Credit Note affected thereby;
(c) extend the due date for, or reduce the amount or
application of, any scheduled repayment or prepayment of
principal of or interest on any Revolving Credit Loan (or
reduce the principal amount of or rate of interest on any
Revolving Credit Loan) shall be made without the consent of
each affected Revolving Credit Lender;
(d) affect adversely the interests, rights or
obligations of the Issuer qua the Issuer shall be made
without the consent of the Issuer;
(e) affect adversely the interests, rights or
obligations of the Swing Line Lender qua the Swing Line
Lender shall be made without the consent of the Swing Line
Lender;
(f) affect adversely the interests, rights or
obligations of any Agent, the Collateral Agent or Arranger
(in its capacity as Agent, the Collateral Agent or
Arranger), unless consented to by such Agent, the Collateral
Agent or Arranger, as the case may be; or
(g) amend, modify or waive the provisions of clause (d)
of Section 3.1.1 of the Term Loan Agreement or the
penultimate paragraph of Section 7.2.12 of the Term Loan
Agreement without the consent of each Revolving Credit
Lender or Assignee Revolving Credit Lender.
No failure or delay on the part of any Agent, the Collateral
Agent, any Revolving Credit Lender or the holder of any Revolving
Credit Note in exercising any power or right under this Agreement
or any other Revolving Credit Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on any Revolving Credit Borrower in any case shall entitle it to
any notice or demand in similar or other circumstances. No
waiver or approval by any Agent, the Collateral Agent, any
Revolving Credit Lender or the holder of any Revolving Credit
Note under this Agreement or any other Revolving Credit Document
shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver
or approval thereafter to be granted hereunder.
SECTION XI.2. Notices. All notices and other
communications provided to any party hereto under this Agreement
or any other Revolving Credit Document shall be in writing or by
facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth on Schedule II
hereto or, in the case of a Revolving Credit Lender that becomes
a party hereto after the date hereof, as set forth in the Lender
Assignment Agreement pursuant to which such Revolving Credit
Lender becomes a Revolving Credit Lender hereunder or at such
other address or facsimile number as may be designated by such
party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted (and telephonic
confirmation of receipt thereof has been received).
SECTION XI.3. Payment of Costs and Expenses. The
Revolving Credit Borrowers jointly and severally agree to pay on
demand all reasonable expenses of the Agents and the Collateral
Agent (including the reasonable fees and out-of-pocket expenses
of counsel to the Agents and the Collateral Agent and of local
counsel, if any, who may be retained by counsel to the Agents and
the Collateral Agent) in connection with
(a) the syndication by the Syndication Agent and the
Arranger of the Revolving Credit Loans, the negotiation,
preparation, execution and delivery of this Agreement and of
each other Revolving Credit Document, including schedules
and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any
other Revolving Credit Document as may from time to time
hereafter be required, whether or not the transactions
contemplated hereby are consummated,
(b) the filing, recording, refiling or rerecording of
each Revolving Credit Mortgage, each Pledge Agreement and
each Security Agreement and/or any Uniform Commercial Code
financing statements relating thereto and all amendments,
supplements and modifications to any thereof and any and all
other documents or instruments of further assurance required
to be filed or recorded or refiled or rerecorded by the
terms hereof or of such Revolving Credit Mortgage, Pledge
Agreement or Security Agreement, and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Revolving Credit Document.
The Revolving Credit Borrowers further jointly and severally
agree to pay, and to save the Agents, the Collateral Agent and
the Revolving Credit Lenders harmless from all liability for, any
stamp or other taxes which may be payable in connection with the
execution or delivery of this Agreement, the Revolving Credit
Loans made hereunder, the issuance of the Notes, the issuance of
the Revolving Credit Letters of Credit, or any other Revolving
Credit Documents. The Revolving Credit Borrowers jointly and
severally also agree to reimburse each Agent, the Collateral
Agent and each Revolving Credit Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys
fees and legal expenses) incurred by such Agent, the Collateral
Agent or such Revolving Credit Lender in connection with (x) the
negotiation of any restructuring or work-out, whether or not
consummated, of any Revolving Credit Obligations and (y) the
enforcement of any Revolving Credit Obligations.
SECTION XI.4. Indemnification. In consideration of the
execution and delivery of this Agreement by each Revolving Credit
Lender and the extension of the Revolving Credit Commitments, the
Revolving Credit Borrowers hereby jointly and severally
indemnify, exonerate and hold each Agent, the Collateral Agent,
the Documentation Agent, the Arranger, the Issuer and each
Revolving Credit Lender and each of their respective partners,
officers, directors, trustees, employees and agents, and each
other Person controlling any of the foregoing within the meaning
of either Section 15 of the Securities Act of 1933, as amended,
or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively, the Indemnified Parties) free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys fees and disbursements (collectively, the Indemnified
Liabilities), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Revolving Credit Loan or the use of any Revolving
Credit Letter of Credit;
(b) the entering into and performance of this
Agreement and any other Revolving Credit Document by any of
the Indemnified Parties (including any action brought by or
on behalf of any Revolving Credit Borrower as the result of
any determination by the Required Revolving Credit Lenders
pursuant to Article VI not to make any Revolving Credit
Extension);
(c) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by any
Revolving Credit Borrower or any of its Subsidiaries of all
or any portion of the stock or assets of any Person, whether
or not such Agent, such Documentation Agent, such Arranger
or such Revolving Credit Lender is party thereto;
(d) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or
other matter relating to any Borrowers or any of its
Subsidiaries compliance with or liability under any
Environmental Law or the Release by any Revolving Credit
Borrower or any of its Subsidiaries of any Hazardous
Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releases from, any real property owned or operated by any
Revolving Credit Borrower or any Subsidiary thereof of any
Hazardous Material present on or under such property in a
manner giving rise to liability at or prior to the time any
Revolving Credit Borrower or any Subsidiary thereof owned or
operated such property (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether
caused by, or within the control of, such Revolving Credit
Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or wilful
misconduct or any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, stored or
disposed of on any real property of any Revolving Credit Borrower
or any of its Subsidiaries or any violation of Environmental Law
that first occurs on or with respect to any real property of such
Revolving Credit Borrower or any of its Subsidiaries after such
real property is transferred to any Indemnified Person or its
successor by foreclosure sale, deed in lieu of foreclosure, or
similar transfer, except to the extent such manufacture,
emission, release, generation, treatment, storage or disposal or
violation is actually caused by the Term Loan Borrower, any
Revolving Credit Borrower or any of such Revolving Credit
Borrower's Subsidiaries. Each Revolving Credit Borrower and its
permitted successors and assigns hereby waive, release and agree
not to make any claim, or bring any cost recovery action against,
any Agent, the Documentation Agent, the Arranger or any Revolving
Credit Lender under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted, except to the
extent arising out of the gross negligence or willful misconduct
of any Indemnified Party. It is expressly understood and agreed
that to the extent that any of such Persons is strictly liable
under any Environmental Laws, each Revolving Credit Borrower's
obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of such Revolving Credit
Borrower, to the extent permitted under applicable law, with
respect to the violation or condition which results in liability
of such Person. Notwithstanding anything to the contrary herein,
each Agent, the Collateral Agent, the Documentation Agent, the
Arranger and each Revolving Credit Lender shall be responsible
for any act or occurrence resulting from their own gross
negligence or willful misconduct with respect to any Hazardous
Materials that are first manufactured, emitted, generated,
treated, released, stored or disposed of on any real property of
any Revolving Credit Borrower or any of its Subsidiaries or any
violation of Environmental Law that first occurs on or with
respect to any such real property after such real property is
transferred to any Agent, the Collateral Agent, Documentation
Agent, Arranger or Revolving Credit Lender to its successor by
foreclosure sale, deed in lieu of foreclosure, or similar
transfer, except to the extent such manufacture, emission,
release, generation, treatment, storage or disposal or violation
is actually caused by the Term Loan Borrower, such Revolving
Credit Borrower or any of such Revolving Credit Borrower's
Subsidiaries. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, each Revolving
Credit Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION XI.5. Survival. The obligations of each Revolving
Credit Borrower under Sections 5.3, 5.4, 5.5, 5.6, 11.3 and 11.4,
and the obligations of the Revolving Credit Lenders under Section
4.8 and Section 10.1, shall in each case survive any termination
of this Agreement, the payment in full of all Revolving Credit
Obligations and the termination of all Revolving Credit
Commitments. The representations and warranties made by each
Revolving Credit Obligor in this Agreement and in each other
Revolving Credit Document shall survive the execution and
delivery of this Agreement and each such other Revolving Credit
Document.
SECTION XI.6. Severability. Any provision of this
Agreement or any other Revolving Credit Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Revolving Credit
Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION XI.7. Headings. The various headings of this
Agreement and of each other Revolving Credit Document are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Revolving Credit
Document or any provisions hereof or thereof.
SECTION XI.8. Execution in Counterparts, Effectiveness,
etc. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Revolving Credit
Borrowers and each Revolving Credit Lender (or notice thereof
satisfactory to the Agents) shall have been received by the
Agents and notice thereof shall have been given by the Agents to
the Revolving Credit Borrowers and each Revolving Credit Lender.
SECTION XI.9. Governing Law; Entire Agreement. THIS
AGREEMENT, THE REVOLVING CREDIT NOTES AND EACH OTHER REVOLVING
CREDIT DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Revolving Credit Notes and the other Revolving
Credit Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect
thereto.
SECTION XI.10. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that (i) no Revolving Credit Borrower may
assign or transfer its rights or obligations hereunder without
the prior written consent of each of the Agents and all Revolving
Credit Lenders; and (ii) the rights of sale, assignment and
transfer of the Revolving Credit Lenders are subject to Section
11.11.
SECTION XI.11. Sale and Transfer of Revolving Credit Loans
and Revolving Credit Commitments; Participations in Revolving
Credit Loans and Revolving Credit Commitments. Each Revolving
Credit Lender may assign, or sell participations in, its
Revolving Credit Loans and Revolving Credit Commitments so long
as each such assignment or sale is made, in the case of Revolving
II Credit Commitments and Revolving II Credit Loans, on a pro
rata basis with the assignment, or sale of participations in, its
Term Loans, and, in the case of Revolving I Credit Loans and
Revolving II Credit Loans, respectively, on a pro rata basis with
the assignment, or sale of participations in, its Revolving I
Credit Commitments and Revolving II Credit Commitments, to one or
more other Persons in accordance with this Section 11.11 and
Section 10.11 of the Term Loan Agreement; provided, that in the
event any Revolving Credit Lender (for purposes of this proviso,
a Selling Lender) desires to sell a participation to any
prospective purchaser of any such participation which cannot,
purchase a participation in unfunded Revolving II Credit
Commitments (a Restricted Participant), such Selling Lender shall
not be obligated pursuant this Section 11.11 to sell such
Restricted Participant a pro rata share of such Selling Lender's
unfunded Revolving II Credit Commitment so long as such
Restricted Participant is obligated to purchase a pro rata share
of each Revolving II Credit Loan as and when made by such Selling
Lender pursuant to its Revolving II Credit Commitment; provided,
further, that such Restricted Participant shall be obligated to
purchase its pro rata share of such unfunded Revolving II Credit
Commitment whenever it would otherwise be permitted to do so
(including, if applicable, upon the occurrence of an Event of
Default).
SECTION XI.11.1. Assignments. Any Revolving Credit Lender
(the Assignor Revolving Credit Lender),
(a) with the written consents of each Revolving Credit
Borrower and the Syndication Agent and (in the case of any
assignments or participations in Revolving Credit Letters of
Credit or Revolving Credit Commitments) the Issuer and the
Swing Line Lender, (which consents shall not be unreasonably
delayed or withheld and which consent of the Syndication
Agent and the Issuer and the Swing Line Lender shall not be
required in the case of assignments made by or to DLJ or any
of its Affiliates and which consent of such Revolving Credit
Borrower shall not be required if a Default of the type
described in clauses (a) through (d) of Section 9.1.9 or an
Event of Default shall have occurred and be continuing), may
at any time assign and delegate to one or more commercial
banks or other financial institutions or funds which are
regularly engaged in making, purchasing or investing in
loans or securities, and
(b) with notice to each Revolving Credit Borrower and
the Agents, and (in the case of any assignments or
participations in Revolving Credit Letters of Credit or
Revolving Credit Commitments) the Issuer and the Swing Line
Lender, but without the consent of any Revolving Credit
Borrower, the Agents, the Issuer or the Swing Line Lender,
may assign and delegate to any of its Affiliates or Related
Funds or to any other Revolving Credit Lender or any other
financial institution so long as such assignment and
delegation to such financial institution is made within ten
Business Days of the Closing Date
(each Person described in either of the foregoing clauses as
being the Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an Assignee Revolving
Credit Lender), all or any fraction of such Revolving Credit
Lender's total Revolving Credit Loans, participations in
Revolving Credit Letters of Credit and Revolving Credit Letters
of Credit Outstandings with respect thereto and Revolving Credit
Commitments and total Term Loans in a minimum aggregate amount of
(i) $1,000,000 or (ii) the then remaining amount of such
Revolving Credit Lender's Revolving Credit Loans and Revolving
Credit Commitments and Term Loans; provided, however, that any
such Assignee Revolving Credit Lender will comply, if applicable,
with the provisions contained in Section 5.6 and each Revolving
Credit Borrower, each other Revolving Credit Obligor and the
Agents shall be entitled to continue to deal solely and directly
with such Revolving Credit Lender in connection with the
interests so assigned and delegated to an Assignee Revolving
Credit Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Revolving Credit
Lender, shall have been given to each Revolving Credit
Borrower and the Agents by such Revolving Credit Lender and
such Assignee Revolving Credit Lender;
(d) such Assignee Revolving Credit Lender shall have
executed and delivered to each Revolving Credit Borrower and
the Agents a Lender Assignment Agreement, accepted by the
Agents;
(e) the processing fees described below shall have
been paid; and
(f) the Administrative Agent shall have registered
such assignment and delegation in the Register pursuant to
clause (b) of Section 2.6.
From and after the date that the Administrative Agent accepts
such Lender Assignment Agreement and such assignment and
delegation is registered in the Register pursuant to clause (b)
of Section 2.6, (x) the Assignee Revolving Credit Lender
thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder
have been assigned and delegated to such Assignee Revolving
Credit Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of a Revolving
Credit Lender hereunder and under the other Revolving Credit
Documents, and (y) the Assignor Revolving Credit Lender, to the
extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and
under the other Revolving Credit Documents. Within ten Business
Days after its receipt of notice that the Administrative Agent
has received an executed Lender Assignment Agreement, and upon
request pursuant to Section 2.6, the Revolving Credit Borrowers
shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Revolving Credit Lender) new
Revolving Credit Notes evidencing such Assignee Revolving Credit
Lender's assigned Revolving Credit Loans and Revolving Credit
Commitments and, if the Assignor Revolving Credit Lender has
retained Revolving Credit Loans and Revolving Credit Commitments
hereunder, replacement Revolving Credit Notes in the principal
amount of the Revolving Credit Loans and Revolving Credit
Commitments retained by the Assignor Revolving Credit Lender
hereunder (such Revolving Credit Notes to be in exchange for, but
not in payment of, those Revolving Credit Notes then held by such
Assignor Revolving Credit Lender). Each such Revolving Credit
Note shall be dated the date of the predecessor Revolving Credit
Notes. The Assignor Revolving Credit Lender shall mark the
predecessor Revolving Credit Notes exchanged and deliver them to
the Revolving Credit Borrowers. Accrued interest on that part of
the predecessor Revolving Credit Notes evidenced by the new
Revolving Credit Notes, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on
that part of the predecessor Revolving Credit Notes evidenced by
the replacement Revolving Credit Notes shall be paid to the
Assignor Revolving Credit Lender. Accrued interest and accrued
fees shall be paid at the same time or times provided in the
predecessor Revolving Credit Notes and in this Agreement. Such
Assignor Revolving Credit Lender or such Assignee Revolving
Credit Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment
Agreement in connection with the concurrent assignment of Term
Loans and Revolving II Credit Commitments in the amount of
$1,500, unless such assignment and delegation is by a Revolving
Credit Lender to its Affiliate or Related Fund or if such
assignment and delegation consists of a pledge by a Revolving
Credit Lender to a Federal Reserve Bank (or, in the case of a
Revolving Credit Lender that is an investment fund, to the
trustee under the indenture to which such fund is a party), as
provided below or is otherwise consented to by the Syndication
Agent. Any attempted assignment and delegation not made in
accordance with this Section 11.11.1 shall be null and void.
Nothing contained in this Section 11.11.1 shall prevent or
prohibit any Revolving Credit Lender from pledging its rights
(but not its obligations to make Revolving Credit Loans) under
this Agreement and/or its Revolving Credit Loans and/or its
Revolving Credit Notes hereunder (i) to a Federal Reserve Bank in
support of borrowings made by such Revolving Credit Lender from
such Federal Reserve Bank, or (ii) in the case of a Revolving
Credit Lender that is an investment fund, to the trustee under
the indenture to which such fund is a party in support of its
obligations to such trustee, in either case without notice to or
consent of the Revolving Credit Borrowers or the Agents;
provided, however, that (A) such Revolving Credit Lender shall
remain a Revolving Credit Lender under this Agreement and shall
continue to be bound be the terms and conditions set forth in
this Agreement and the other Revolving Credit Documents, and (B)
any assignment by such trustee shall be subject to the provisions
of clause (a) of this Section 11.11.1.
SECTION XI.11.2. Participations. Any Revolving Credit
Lender may at any time sell to one or more commercial banks or
other financial institutions or funds which are regularly engaged
in making, purchasing or investing in loans or securities (each
such commercial bank and other financial institution or fund
being herein called a Participant) participating interests in any
of the Revolving Credit Loans, Revolving Credit Commitments,
participations in Revolving Credit Letters of Credit and
Revolving Credit Letters of Credit Outstandings or other
interests of such Revolving Credit Lender hereunder; provided,
however, that
(a) no participation contemplated in this
Section shall relieve such Revolving Credit Lender from its
Revolving Credit Commitments or its other obligations
hereunder or under any other Revolving Credit Document;
(b) such Revolving Credit Lender shall remain solely
responsible for the performance of its Revolving Credit
Commitments and such other obligations;
(c) each Revolving Credit Borrower and each other
Revolving Credit Obligor and the Agents shall continue to
deal solely and directly with such Revolving Credit Lender
in connection with such Revolving Credit Lender's rights and
obligations under this Agreement and each of the other
Revolving Credit Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Revolving Credit Lender, or is itself a
Revolving Credit Lender, shall be entitled to require such
Revolving Credit Lender to take or refrain from taking any
action hereunder or under any other Revolving Credit
Document, except that such Revolving Credit Lender may agree
with any Participant that such Revolving Credit Lender will
not, without such Participant's consent, agree to (i) any
reduction in the interest rate or amount of fees that such
Participant is otherwise entitled to, (ii) a decrease in the
principal amount, or an extension of the final Stated
Maturity Date, of any Revolving Credit Loan in which such
Participant has purchased a participating interest or
(iii) a release of all or substantially all of the
collateral security under the Revolving Credit Documents or
any Subsidiary Guarantor under any Subsidiary Guaranty, if
any, in each case except as otherwise specifically provided
in a Revolving Credit Document; and
(e) the Revolving Credit Borrowers shall not be
required to pay any amount under Sections 5.3, 5.4, 5.5,
5.6, 11.3 and 11.4 that is greater than the amount which it
would have been required to pay had no participating
interest been sold.
Each Revolving Credit Borrower acknowledges and agrees, subject
to clause (e) above, that, to the fullest extent permitted under
applicable law, each Participant, for purposes of Sections 5.3,
5.4, 5.5, 5.6, 5.8, 5.9, 11.3 and 11.4, shall be considered a
Revolving Credit Lender.
SECTION XI.12. Other Transactions. Nothing contained
herein shall preclude any Agent, the Collateral Agent or any
other Revolving Credit Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other
Revolving Credit Document, with any Revolving Credit Borrower or
any of their respective Affiliates in which such Revolving Credit
Borrower or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION XI.13. Forum Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER REVOLVING CREDIT
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS OR THE REVOLVING
CREDIT BORROWERS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY (TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE
STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, NEW YORK COUNTY; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY REVOLVING
CREDIT COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
COLLATERAL AGENT?S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH REVOLVING CREDIT COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH REVOLVING CREDIT BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH REVOLVING CREDIT BORROWER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF NEW YORK. EACH REVOLVING CREDIT BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT ANY REVOLVING CREDIT BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH REVOLVING CREDIT
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS REVOLVING CREDIT OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER REVOLVING CREDIT DOCUMENTS.
SECTION XI.14. Waiver of Jury Trial. THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS AND EACH REVOLVING
CREDIT BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER REVOLVING CREDIT
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
COLLATERAL AGENT, THE REVOLVING CREDIT LENDERS OR THE REVOLVING
CREDIT BORROWERS RELATING THERETO. EACH REVOLVING CREDIT
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER REVOLVING CREDIT DOCUMENT TO WHICH IT IS
A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENTS, THE COLLATERAL AGENT, AND THE REVOLVING CREDIT LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER REVOLVING CREDIT
DOCUMENT.
SECTION XI.15. Confidentiality. The Agents, the Collateral
Agent, the Arranger and the Revolving Credit Lenders shall hold
all non-public information obtained pursuant to or in connection
with this Agreement or obtained by them based on a review of the
books and records of any Revolving Credit Borrower or any of its
Subsidiaries in accordance with their customary procedures for
handling confidential information of this nature, but may make
disclosure to any of their examiners, regulators (including,
without limitation, the National Association of Insurance
Commissioners), Affiliates, outside auditors, counsel and other
professional advisors in connection with this Agreement or as
reasonably required by any potential bona fide transferee,
participant or assignee, or in connection with the exercise of
remedies under a Revolving Credit Document, or as requested by
any governmental agency or representative thereof or pursuant to
legal process; provided, however, that
(a) unless specifically prohibited by applicable law
or court order, each Agent, the Collateral Agent, the
Arranger and each Revolving Credit Lender shall promptly
notify each Revolving Credit Borrower of any request by any
governmental agency or representative thereof (other than
any such request in connection with an examination of the
financial condition of such Agent, the Collateral Agent,
Arranger and Revolving Credit Lender by such governmental
agency) for disclosure of any such non-public information
and, where practicable, prior to disclosure of such
information;
(b) prior to any such disclosure pursuant to this
Section 11.15, each Agent, the Collateral Agent, the
Arranger and each Revolving Credit Lender shall require any
such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this Section 11.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section
11.15;
(c) disclosure may, with the consent of the
Syndication Agent and each Revolving Credit Borrower, be
made by any Revolving Credit Lender to any direct or
indirect contractual counter parties of such Revolving
Credit Lender in swap agreements or such contractual
counterparties professional advisors; provided that such
contractual counterparty or professional advisor agrees in
writing to keep such information confidential to the same
extent required of the Revolving Credit Lenders hereunder;
and
(d) except as may be required by an order of a court
of competent jurisdiction and to the extent set forth
therein, no Revolving Credit Lender shall be obligated or
required to return any materials furnished by any Revolving
Credit Borrower or any Subsidiary.
SECTION XI.16. Liens on Sold Assets. The Collateral Agent
will execute and deliver to the Revolving Credit Borrowers, at
the Revolving Credit Borrowers sole cost and expense, any
releases, termination statements or other documents reasonably
necessary to (a) release the Liens granted by the Security
Documents on any property or other assets sold, transferred or
otherwise disposed of in a transaction permitted by the Term Loan
Agreement as in effect on the date hereof and (b) if the property
or other assets sold, transferred or otherwise disposed of in a
transaction permitted by the Term Loan Agreement consists of all
the Capital Stock of a Subsidiary, release such Subsidiary from
the Subsidiary Guaranty, the Subsidiary Pledge Agreement, the
Subsidiary Security Agreement and each other Revolving Credit
Document if such Subsidiary is a party thereto.
SECTION XI.17. Termination of SFC's and SFC Sub's
Obligations. Upon the Restatement Effective Date, all
obligations (other than those expressly stated to survive such
termination) of SFC and SFC Sub under the Loan Documents to which
each of SFC and SFC Sub is a party shall terminate and such Loan
Documents, with regard to SFC and SFC Sub, shall be of no further
force and effect. Upon such termination, the Collateral Agent
shall deliver to SFC (at its sole expense) the certificates
evidencing all of the issued and outstanding shares of Capital
Stock of SFC Sub pledged to the Collateral Agent pursuant to the
Borrower Pledge Agreement executed by SFC on the Closing Date as
well as any releases, termination statements or other documents
reasonably necessary to evidence such termination and for the
release of Liens granted to the Collateral Agent pursuant to the
Borrower Security Agreement and the Borrower Pledge Agreement
executed by SFC on the Closing Date on any property or other
assets of SFC, and shall deliver to SFC Sub any releases,
termination statements or other documents reasonably necessary to
evidence such termination and for the release of Liens granted to
the Collateral Agent pursuant to the Subsidiary Security
Agreement and Subsidiary Pledge Agreement executed by SFC Sub on
the Closing Date on any property or other assets of SFC Sub.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
MOTHER?S CAKE & COOKIE CO.,
a California corporation
By:
________________________________
Name:
Title:
GWI, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
METZ BAKING COMPANY,
an Iowa corporation
By:
________________________________
Name:
Title:
SFFB HOLDINGS, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
BELSEA HOLDINGS, INC.,
a Delaware corporation
By:
________________________________
Name:
Title:
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent,
Collateral Agent
and as a Revolving Credit Lender
By:
Title:
ABN AMRO BANK N.V.,
as the Administrative Agent and
as a Revolving Credit Lender
By:
Title:
By:
Title:
BANQUE PARIBAS, as the
Documentation Agent
and as a Revolving Credit Lender
By:
Title:
EQUITABLE LIFE INSURANCE
NON PAR HIGH YIELD,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE INSURANCE ASST.
CORP. HIGH YIELD,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE HIGH INCOME,
as a Revolving Credit Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE NUTMEG,
as a Revolving Credit Lender
By:
Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND,
as a Revolving Credit Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as a Revolving Credit Lender
By:
Name:
Title:
BAVARIA TRR CORP.,
as a Revolving Credit Lender
By:
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST,
as a Revolving Credit Lender
By:
Name:
Title:
SENIOR DEBT PORTFOLIO,
as a Revolving Credit Lender
By: Eaton Vance Management,
as Investment Advisor
By:
Name:
Title:
KZH CNC LLC,
as a Revolving Credit Lender
By:
Name:
Title:
PPM AMERICA,
as a Revolving Credit Lender
By:
Name:
Title:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
as a Revolving Credit Lender
By:
Name:
Title:
GOLDMAN SACHS ASSET MANAGEMENT,
as a Revolving Credit Lender
By:
Name:
Title:
MAGTEN,
as a Revolving Credit Lender
By:
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.,
as a Revolving Credit Lender
By: Angelo, Gordon & Co., L.P.,
as Investment Advisor
By:
Name:
Title:
NORTHWOODS CAPITAL, LIMITED,
as a Revolving Credit Lender
By: Angelo, Gordon & Co., L.P.,
as Collateral Manager
By:
Name:
Title:
FOOTHILL CAPITAL,
as a Revolving Credit Lender
By:
Name:
Title:
ING CAPITAL,
as a Revolving Credit Lender
By:
Name:
Title:
PAM CAPITAL FUNDING L.P.,
as a Revolving Credit Lender
By:
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
as a Revolving Credit Lender
By:
Name:
Title:
OXFORD STRATEGIC INCOME,
as a Revolving Credit Lender
By: Eaton Vance Management,
as Investment Advisor
By:
Name:
Title:
SCHEDULE I
to
Revolving Credit
Agreement
DISCLOSURE SCHEDULE
ITEM 8.2.2(b) Indebtedness to be Paid.
Creditor Outstanding Principal Amount
SCHEDULE II
to
Revolving Credit
Agreement
REVOLVING CREDIT PERCENTAGES
Revolving I Revolving II
Credit Credit
Revolving Credit Lender Commitment Commitment
DLJ Capital Funding, Inc. 100%
ABN AMRO Bank N.V. 40%
Banque Paribas 60%
ADMINISTRATIVE INFORMATION
Notice Information
Revolving Credit Borrowers c/o Specialty Foods
Corporation
520 Lake Cook Road
Suite 550
Deerfield, Illinois 60015
Attention:Chief Financial Officer
Telecopy: (847) 405-5310
with a copy to:
Paul, Weiss, Rifkind, Wharton
& Garrison
Attention: Robert M. Hirsh
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 373-2159
DLJ Capital Funding, Inc.,
as Syndication Agent and
Collateral Agent 277 Park Avenue
New York, New York 10172
Contact: Diane Albanese
Telecopy: (212) 892-7272
EXHIBIT 99.3
U.S. $168,211,259.00
AMENDED AND RESTATED
TERM LOAN AGREEMENT,
dated as of June 11, 1999,
(amending and restating the Term Loan Agreement,
dated as of March 16, 1998),
among
SFC NEW HOLDINGS, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Term Loan Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and
Collateral Agent for the Term Loan Lenders,
ABN AMRO BANK N.V.,
as the Administrative Agent for the Term Loan Lenders,
and
BANQUE PARIBAS,
as the Documentation Agent for the Term Loan Lenders.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEAD ARRANGER AND BOOK MANAGER
|| TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms 2
1.2 Use of Defined Terms 40
1.3 Cross-References 41
1.4 Accounting and Financial Determinations 41
ARTICLE II CONTINUATION OF EXISTING TERM LOANS; TERM
NOTES
2.1 Existing Term Loans. 42
2.2 [Intentionally Omitted] 42
2.3 [Intentionally Omitted]. 42
2.4 Continuation and Conversion Elections 42
2.5 Funding 43
2.6 Register; Term Notes 43
ARTICLE IIIREPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1 Repayments and Prepayments; Application 45
3.1.1Repayments and Prepayments 45
3.1.2Application 48
3.2 Interest Provisions 49
3.2.1Rates 49
3.2.2Post-Maturity Rates 50
3.2.3Payment Dates 50
3.3 Fees 50
3.3.1Administration Fee 51
3.3.2Deferred Fees 51
3.3.3Amendment Fee 51
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1 LIBO Rate Lending Unlawful 51
4.2 Deposits Unavailable 51
4.3 Increased LIBO Rate Loan Costs, etc. 52
4.4 Funding Losses 52
4.5 Increased Capital Costs 53
4.6 Taxes 54
4.7 Payments, Computations, etc. 56
4.8 Sharing of Payments 57
4.9 Setoff 58
4.10 Replacement of Term Loan Lenders 58
ARTICLE V CONDITIONS TO RESTATEMENT EFFECTIVENESS
5.1 Effectiveness 59
5.1.1Execution of Counterparts. 59
5.1.2Resolutions, etc. 59
5.1.3Loan Documents 60
5.1.4Affirmation and Consent. 60
5.1.5Payment of Fees and Expenses. 60
5.1.6Restatement Effective Date Certificate 60
5.1.7Perfection Certificate 60
5.1.8Opinions of Counsel 60
5.1.9Conditions Precedent to Revolving Credit Agreement. 61
5.1.10 Litigation 61
5.1.11 Material Adverse Change 61
5.1.12 Consents and Approvals, etc. 61
5.1.13 Insurance 61
5.1.14 Satisfactory Legal Form 62
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1 Organization, etc. 62
6.2 Due Authorization, Non-Contravention, etc. 62
6.3 Government Approval, Regulation, etc. 63
6.4 Validity, etc. 63
6.5 Financial Information 63
6.6 No Material Adverse Change 63
6.7 Litigation, Labor Controversies, etc. 64
6.8 Subsidiaries 64
6.9 Ownership of Properties 64
6.10 Taxes 64
6.11 Pension and Welfare Plans 64
6.12 Environmental Warranties 65
6.13 Intellectual Property 66
6.14 Regulations U and X 66
6.15 Solvency 66
6.16 Accuracy of Information 67
6.17 Seniority of the Obligations and Permitted Indebtedness
under the Subordinated Note Indenture 67
6.18 Special Purpose Subsidiary 67
6.19 Concentration and Deposit Accounts 68
6.20 Year 2000 68
ARTICLE VII COVENANTS
7.1 Affirmative Covenants 69
7.1.1Financial Information, Reports, Notices, etc. 69
7.1.2Compliance with Laws, etc. 72
7.1.3Maintenance of Properties 73
7.1.4Insurance 73
7.1.5Books and Records 73
7.1.6Environmental Covenant 74
7.1.7Additional Collateral 74
7.1.8[Intentionally Omitted]. 78
7.1.9[Intentionally Omitted] 78
7.1.10 Independent Corporate Existence 78
7.1.11 Asset Sale Proceeds Contribution and Deposit 79
7.1.12 Establishment and Administration of Accounts 80
7.1.13 Special Purpose Subsidiary 82
7.1.14 Year 2000 83
7.2 Negative Covenants 84
7.2.1Business Activities 84
7.2.2Indebtedness 84
7.2.3Guarantee Obligations 86
7.2.4Liens 87
7.2.5Financial Covenants 89
7.2.6Investments 90
7.2.7Restricted Payments, etc. 92
7.2.8Capital Expenditures, etc 94
7.2.9Receivables Subsidiary 94
7.2.10 Take or Pay Contracts 94
7.2.11 Consolidation, Merger, etc. 95
7.2.12 Asset Dispositions, etc 95
7.2.13Optional Prepayments, Purchases and Modification of
Certain Agreements 98
7.2.14 Transactions with Affiliates 99
7.2.15 Sale and Leaseback 99
7.2.16 Stock of Subsidiaries 100
7.2.17 Accounting Changes 100
7.2.18 Negative Pledges, Restrictive Agreements, etc 100
7.2.19 Holding Company Status 100
7.3 Negative Covenants of Special Purpose Subsidiary 100
7.3.1Business Activities 101
7.3.2Creation of Indebtedness; Guarantees 101
7.3.3Subsidiaries 101
7.3.4Issuance of Stock 101
7.3.5Mergers 101
7.3.6Other Activities 101
7.3.7Insolvency 101
7.3.8ERISA 102
7.3.9Dividends 102
ARTICLE VIII EVENTS OF DEFAULT
8.1 Listing of Events of Default 102
8.1.1Non-Payment of Obligations 102
8.1.2Breach of Warranty 102
8.1.3Non-Performance of Certain Covenants and Obligations 102
8.1.4Non-Performance of Other Covenants and Obligations 103
8.1.5Default on Other Indebtedness 103
8.1.6Judgments 103
8.1.7Pension Plans 103
8.1.8Change in Control 103
8.1.9Bankruptcy, Insolvency, etc. 103
8.1.10 Impairment of Security, etc. 104
8.1.11 Revolving Credit Event of Default. 104
8.2 Action if Bankruptcy, etc. 105
8.3 Action if Other Event of Default 105
ARTICLE IX THE AGENTS
9.1 Actions 105
9.2 Funding Reliance, etc. 106
9.3 Exculpation 106
9.4 Successor 107
9.5 Term Loans by each Agent and the Collateral Agent 108
9.6 Credit Decisions 108
9.7 Copies, etc. 109
9.8 The Syndication Agent, the Documentation Agent, the
Administrative Agent and the Collateral Agent 109
ARTICLE X MISCELLANEOUS PROVISIONS
10.1 Waivers, Amendments, etc. 109
10.2 Notices 111
10.3 Payment of Costs and Expenses 111
10.4 Indemnification 112
10.5 Survival 113
10.6 Severability 113
10.7 Headings 114
10.8 Execution in Counterparts, Effectiveness, etc. 114
10.9 Governing Law; Entire Agreement 114
10.10Successors and Assigns 114
10.11Sale and Transfer of Term Loans; Participations in Term
Loans 114
10.11.1 Assignments 115
10.11.2 Participations 117
10.12Other Transactions 117
10.13Forum Selection and Consent to Jurisdiction 117
10.14Waiver of Jury Trial 118
10.15Confidentiality 119
10.16Liens on Sold Assets 120
10.17Termination of SFC's Obligations 120
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Term Loan Percentages
SCHEDULE III - Subsidiaries
SCHEDULE IV - Restructuring
EXHIBIT A - Form of Term Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Restatement Effective Date
Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Borrower Pledge Agreement
EXHIBIT G - Form of Borrower Security Agreement
EXHIBIT H-1 - Form of Concentration Account Agreement
EXHIBIT H-2 - Form of Asset Sale Proceeds Account Agreement
EXHIBIT H-3 - Form of Collateral Account Agreement
EXHIBIT I - Form of Amended and Restated SFAC Agreement
EXHIBIT J - Form of Mortgage
EXHIBIT K - Form of Lender Assignment Agreement
EXHIBIT L-1 - Form of Opinion of New York Counsel to SFAC,
the Parent and the Borrower
EXHIBIT L-2 - Form of Opinion of Secretary and General
Counsel of SFAC, the Parent and the Borrower
EXHIBIT L-3 - Form of Opinion of Local Counsel to the
Obligors
EXHIBIT M - Form of Exemption Certificate
EXHIBIT N - Form of Perfection Certificate
EXHIBIT O - Form of Affirmation and Consent
||
AMENDED AND RESTATED
TERM LOAN AGREEMENT
THIS AMENDED AND RESTATED TERM LOAN AGREEMENT, dated as of
June 11, 1999, amending and restating the Existing Term Loan
Agreement (as defined below), is among SFC New Holdings, Inc., a
Delaware corporation (the ?Borrower?), the various financial
institutions as are or may become parties hereto (collectively,
the ?Term Loan Lenders?), DLJ Capital Funding, Inc. (?DLJ?), as
syndication agent (the ?Syndication Agent?), and as collateral
agent (the ?Collateral Agent?), for the Term Loan Lenders, ABN
Amro Bank N.V. (?ABN?), as administrative agent (the
?Administrative Agent?), for the Term Loan Lenders, and Banque
Paribas, as documentation agent (the ?Documentation Agent?), for
the Term Loan Lenders (the Syndication Agent and the
Administrative Agent are sometimes referred to herein as the
?Agents? and each as an ?Agent?).
W I T N E S S E T H:
WHEREAS, the Borrower and its Subsidiaries (such capitalized
term, and other terms used herein, to have the meanings provided
in Section 1.1) are engaged in the business of production and
distribution of breads, buns, rolls, sweet goods, cookies and
other baked goods and operation of retail cafes;
WHEREAS, the Borrower is a party to a Term Loan Agreement,
dated as of March 16, 1998 (as heretofore amended, modified and
supplemented and in effect from time to time, the ?Existing Term
Loan Agreement?), among Specialty Foods Corporation, a Delaware
corporation (?SFC?), the Borrower, the various financial
institutions parties thereto on the Closing Date (the ?Existing
Term Loan Lenders?), DLJ, as syndication agent and collateral
agent for such financial institutions, ABN, as administrative
agent for such financial institutions, and Summit Bank, as
documentation agent for such financial institutions, pursuant to
which the Existing Term Loan Lenders made term loans (the
?Existing Term Loans?) to SFC on the Closing Date in the
aggregate original principal amount of $173,750,000, which on the
Restatement Effective Date are outstanding in the aggregate
principal amount of $168,211,259.00;
WHEREAS, certain subsidiaries of the Borrower (collectively,
the ?Existing Revolving Credit Borrowers?) are parties to a
Revolving Credit Agreement, dated as of March 16, 1998 (as
heretofore amended, modified and supplemented and in effect from
time to time, the ?Existing Revolving Credit Agreement?), among
the Existing Revolving Credit Borrowers, the various financial
institutions parties thereto, DLJ, as syndication agent and
collateral agent for such financial institutions, ABN, as
administrative agent for such financial institutions, and Summit
Bank, as documentation agent for such financial institutions,
pursuant to which Borrowings of (a) Revolving I Credit Loans, in
a maximum aggregate principal amount (together with all Revolving
Credit Letter of Credit Outstandings and Swing Line Loans) not to
exceed $25,000,000, and (b) Revolving II Credit Loans, in a
maximum aggregate principal amount not to exceed $100,000,000,
could be made to the Revolving Credit Borrowers from time to time
on and subsequent to the Closing Date but prior to the applicable
Revolving Credit Commitment Termination Dates for such Revolving
Credit Commitments;
WHEREAS, the Borrower has requested that the Existing Term
Loan Agreement be amended and restated in its entirety to become
effective and binding on the Borrower pursuant to the terms of
this Agreement, and the Term Loan Lenders (including the Existing
Term Loan Lenders) have agreed (subject to the terms of this
Agreement) to amend and restate the Existing Term Loan Agreement
in its entirety to read as set forth in this Agreement, and it
has been agreed by the parties to the Existing Term Loan
Agreement that the Existing Term Loans and other Term Loan
Obligations outstanding under the Existing Term Loan Agreement
shall be governed by and deemed to be outstanding under the
amended and restated terms and conditions contained in this
Agreement, with the intent that the terms of this Agreement shall
supersede the terms of the Existing Term Loan Agreement (which
shall hereafter have no further effect upon the parties thereto,
other than for accrued fees and expenses, and indemnification
provisions, accrued and owing under the terms of the Existing
Term Loan Agreement on or prior to the Restatement Effective Date
or arising under the terms of the Existing Term Loan Agreement);
WHEREAS, concurrently with the amendment and restatement of
the Existing Term Loan Agreement, the Revolving Credit Lenders
will amend and restate in its entirety the Existing Revolving
Credit Agreement with the Existing Revolving Credit Borrowers;
WHEREAS, the Term Loans and Term Loan Obligations shall
continue to be and shall be fully secured by the Borrower
Security Agreement and the Borrower Pledge Agreement; and
WHEREAS, the Term Loan Lenders are willing, on the terms and
subject to the conditions hereinafter set forth (including
Article V), to so amend and restate the Existing Term Loan
Agreement, and have agreed that their Existing Term Loans shall
continue to remain outstanding as Term Loans hereunder;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree that
the Existing Term Loan Agreement, together with all schedules and
Exhibits thereto, is hereby amended and restated in its entirety
to read, effective as of the Restatement Effective Date, in the
form of this Agreement, together with all schedules and Exhibits
hereto:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1 Defined Terms. The following terms (whether
or not underscored) when used in this Agreement, including its
preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
?ABN? is defined in the preamble.
Acadia means Acid Partners, L.P., a Delaware limited
partnership.
Acquisition means the purchase or acquisition (by purchase,
merger or other form of acquisition) of all or substantially all
the assets, or not less than 100% of the Capital Stock, of one or
more Persons engaged in, or any operating division, operating
unit or line of business located within the United States
conducting the same, similar or related lines of business to
those engaged in by Metz or Mothers.
Administrative Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Administrative Agent pursuant to Section 9.4 and
Section 10.4 of the Revolving Credit Agreement.
Affiliate of any Person means any other Person which,
directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Plan).
A Person shall be deemed to be controlled by any other Person if
such other Person possesses, directly or indirectly, power (a) to
vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or
managing general partners; or (b) to direct or cause the
direction of the management and policies of such Person whether
by contract or otherwise.
Agents is defined in the preamble.
Agreed-Upon Procedures means such review procedures as
performed by an Independent Auditor in accordance with any AICPA
guidelines on Reviews of Pro Forma Financial Information (AT 300)
and others to be reasonably specified by the Agents which will
include, without limitation, the following: (i) review of recent
audited or unaudited consolidated historical and pro forma
financial statements of the Borrower and its Subsidiaries and, if
available, the Person which is the subject of such Acquisition,
(ii) inquiries of appropriate financial and accounting officers
of the Borrower and its Subsidiaries as to the basis for
determining the Pro Forma Adjustments and that all significant
assumptions and effects of the transaction have been reflected in
the Pro Forma Adjustments and (iii) proving the arithmetic
accuracy of the application of such Pro Forma Adjustments to the
historical amounts set forth in the financial statements.
Agreement means, on any date, this Amended and Restated Term
Loan Agreement as originally in effect on the Restatement
Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in
effect on such date.
Alternate Base Rate means, for any day and with respect to
all Base Rate Loans, the higher of: (a) 0.50% per annum above
the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as most recently publicly announced or
established by the Administrative Agent in Chicago, Illinois, as
its base rate.(The base rate is a rate set by the Administrative
Agent based upon various factors including the Administrative
Agent's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced
rate.) Any change in the reference rate established or announced
by the Administrative Agent shall take effect at the opening of
business on the day of such establishment or announcement.
Amended and Restated SFAC Agreement means the agreement to
be executed and delivered by SFAC and SFAC New Holdings in favor
of the Collateral Agent, substantially in the form of Exhibit I
hereto, as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
Amendment No. 2? means the Consent and Amendment No. 2 to
Term Loan Agreement and Revolving Credit Agreement, dated as of
June 11, 1999, among SFC, New Holdings, the Existing Revolving
Credit Borrowers, the other Obligors (as defined in the Existing
Term Loan Agreement) party thereto, the lenders under the
Existing Term Loan Agreement and the Existing Revolving Credit
Agreement, DLJ, as syndication agent and collateral agent for
such lenders, ABN, as administrative agent for such lenders, and
Summit Bank, as documentation agent for such lenders.
Amendment No. 2 Effective Date means the date Amendment
No. 2 became effective pursuant to Subpart 5.1 of Amendment No.
2.
Applicable Term Loan Margin means at all times during the
applicable periods in which the Borrower's Senior Secured
Leverage Ratio (determined by reference to the applicable
Compliance Certificate as set forth below) is as set forth in the
column entitled Senior Secured Leverage Ratio (a) with respect to
the unpaid principal amount of each Base Rate Loan, the
applicable percentage set forth below in the column entitled
Applicable Term Loan Margin for Base Rate Loans and (b) with
respect to the unpaid principal amount of each LIBO Rate Loan,
the applicable percentage set forth below in the column entitled
Applicable Term Loan Margin for LIBO Rate Loans:
||
Senior Secured Applicable Term Applicable Term Loan
Leverage Ratio Loan Margin Margin
for Base Rate Loans for LIBO Rate Loans
Less than or equal to 3.25% 4.25%
2.0:1.0
Greater than 2.0:1.0 3.50% 4.50%
The Senior Secured Leverage Ratio used to compute the Applicable
Term Loan Margin shall be the Senior Secured Leverage Ratio set
forth in the Compliance Certificate most recently delivered by
the Borrower to the Administrative Agent pursuant to clause (g)
of Section 7.1.1. Changes in the Applicable Term Loan Margin
resulting from a change in the Senior Secured Leverage Ratio
shall become effective upon delivery by the Borrower to the
Administrative Agent of a new Compliance Certificate pursuant to
clause (g) of Section 7.1.1. If the Borrower shall fail to
deliver a Compliance Certificate within the number of days
required pursuant to clause (g) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Term Loan Margin from
and including the first day after the date on which such
Compliance Certificate was required to be delivered to but not
including the date the Borrower delivers to the Administrative
Agent a Compliance Certificate shall conclusively equal the
highest Applicable Term Loan Margin set forth above.
Archway means Archway Cookies, LLC, a Delaware limited
liability company.
Arranger means Donaldson, Lufkin & Jenrette Securities
Corporation.
Asset Sale means, with respect to SFAC or any of its direct
or indirect Subsidiaries, the sale, transfer or other disposition
by any such Person to another Person (other than the Borrower or
any wholly owned, direct or indirect, Subsidiary of the Borrower)
of any property, business or assets, whether real or personal,
tangible or intangible, other than any such sale, transfer or
other disposition of property or assets of the type described in
clauses (a) or (b) of Section 7.2.12.
Asset Sale Proceeds is defined in the paragraph following
clause (d) of Section 7.2.12.
Asset Sale Proceeds Account means the account of the Special
Purpose Subsidiary established and maintained with an Asset Sale
Proceeds Account Bank, and subject to an Asset Sale Proceeds
Account Agreement, into which all Asset Sale Proceeds shall be
deposited and which account shall be pledged and assigned to the
Collateral Agent for the benefit of the Revolving Credit Lenders.
Asset Sale Proceeds Account Agreement means an Asset Sale
Proceeds Account Agreement executed and delivered by the Special
Purpose Subsidiary and each Asset Sale Proceeds Account Bank,
substantially in the form of Exhibit H-2 hereto, as amended,
supplemented, amended and restated or otherwise modified from
time to time.
Asset Sale Proceeds Account Bank means LaSalle National Bank
at its office at 135 South LaSalle Street, Chicago, Illinois, or
another bank, savings and loan association, credit union or other
similar financial institution acceptable to the Collateral Agent
that has executed an Asset Sale Proceeds Account Agreement.
Assignee Term Loan Lender is defined in Section 10.11.1.
Authorized Officer means, relative to the Borrower and any
other Obligor, those of its officers whose signatures and
incumbency shall have been certified to the Administrative Agent,
the Collateral Agent and the Term Loan Lenders pursuant to
Section 5.1.1; provided, that no officer shall qualify as an
Authorized Officer unless such officer has the title of vice
president or above.
Base Rate Loan means a Loan bearing interest at a
fluctuating rate determined by reference to the Alternate Base
Rate.
Borrower is defined in the preamble.
Borrower Pledge Agreement means the Pledge Agreement
executed and delivered by the Borrower on the Amendment No. 2
Effective Date, substantially in the form of Exhibit F hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Borrower Security Agreement means the Security Agreement
executed and delivered by the Borrower on the Amendment No. 2
Effective Date, substantially in the form of Exhibit G hereto, as
amended, supplemented, amended and restated or otherwise
modified.
Borrowing means the Term Loans of the same type and, in the
case of LIBO Rate Loans, having the same Interest Period made on
the same Business Day and pursuant to the same Borrowing Request
in accordance with Section 2.1.
Borrowing Request means a Loan request and certificate duly
executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit B hereto.
Boudin means Andre-Boudin Bakeries, Inc., a California
corporation.
Business Day means (a) any day which is neither a Saturday
or Sunday nor a legal holiday on which banks are authorized or
required to be closed in Houston, Texas, Chicago, Illinois or New
York City, and (b) with respect to Borrowings of, Interest
Periods with respect to, payments of principal and interest in
respect of, and conversions of Base Rate Loans into, LIBO Rate
Loans, any day on which dealings in Dollars are carried on in the
London interbank market.
Capital Expenditures means, for any period, the sum, without
duplication, of (a) the aggregate amount of all expenditures the
Borrower and its Subsidiaries for fixed or capital assets made
during such period which, in accordance with GAAP, would be
classified as capital expenditures; and (b) to the extent not
included in clause (a) above, the aggregate amount of the
principal component of all Capitalized Lease Liabilities incurred
during such period by the Borrower and its Subsidiaries.
Capital Stock means, with respect to any Person, (a) any and
all shares, interests, participations, rights or other
equivalents of or interests in (however designated) corporate or
capital stock, including, without limitation, shares of preferred
or preference stock of such Person, (b) all partnership interests
(whether general or limited) in such Person, (c) all membership
interests or limited liability company or partnership interests
in such Person, and (d) all other equity or ownership interests
in such Person of any other type.
Capitalized Lease Liabilities means, without duplication,
all monetary obligations of the Borrower or any of its
Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized leases,
and, for purposes of this Agreement and each other Loan Document,
the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or
any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without
payment of a penalty.
Cash Equivalent Investment means, at any time:
(a) any evidence of Indebtedness, maturing not more
than one year after such time, issued directly by the United
States of America or any agency thereof or guaranteed by the
United States of America or any agency thereof;
(b) commercial paper, maturing not more than nine
months from the date of issue, which is issued by (i) a
corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States
or of the District of Columbia and rated at least A-l by S&P
or P-l by Moodys, or (ii) any Lender (or its holding
company);
(c) any time deposit, certificate of deposit or
bankers acceptance, maturing not more than one year after
such time, maintained with or issued by either (i) a
commercial banking institution (including U.S. branches of
foreign banking institutions) that is a member of the
Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000,
or (ii) any Lender;
(d) short-term tax-exempt securities rated not lower
than MIG-1/1+ by either Moodys or S&P with provisions for
liquidity or maturity accommodations of 183 days or less; or
(e) repurchase agreements with respect to any
securities referred to in clause (a) above entered into with
any entity referred to in clause (b) or (c) above or any
other financial institution whose unsecured long-term debt
(or the unsecured long-term debt of whose holding company)
is rated at least A or better by S&P or A-2 or better by
Moodys and maturing not more than thirty days after such
time.
Casualty Event means the damage, destruction or
condemnation, as the case may be, of property of the Borrower or
any of its Subsidiaries.
Casualty Proceeds means, with respect to any Casualty Event,
the amount of any insurance proceeds or condemnation awards
received by the Borrower or any of its Subsidiaries in connection
therewith, but excluding any proceeds or awards required to be
paid to a creditor (other than the Lenders) which holds a first-
priority Lien permitted by Section 7.2.4 on the property which is
the subject of such Casualty Event.
?CERCLA? means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
?CERCLIS? means the Comprehensive Environmental Response
Compensation Liability Information System List.
Change in Control means
(a) any Person or group (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended) other than the Primary Investors (i) shall
have acquired beneficial ownership of a greater percentage
of Sac's voting common stock than is then held by the
Primary Investors; or (ii) shall obtain the power (whether
or not exercised) to elect a majority of SFC's or SFAC's
directors (for purposes of this clause (a), and clause
(b)(ii) below, any shares of voting stock that are required
to be voted for a nominee of any Primary Investor shall be
deemed to be held by such Primary Investor for purposes of
determining the voting power held by any Person); or
(b) the Primary Investors shall cease to be able to
elect a majority of the Board of Directors of SFAC or,
through SFAC, SFC, SFAC New Holdings or the Borrower; or
(c) the Primary Investors shall cease to own legally
and beneficially at least 40% of each outstanding class of
common stock having ordinary voting power in the election of
directors of SFAC held by them on the Closing Date (as
appropriately adjusted to give effect to any stock
dividends, subdivisions, combinations and other similar
combining or diluting events after the Closing Date); or
(d) (i) SFAC shall cease to own legally and
beneficially 100% of each class of Capital Stock of SFC,
free of Liens (other than the Lien created by the SFAC
Pledge Agreement) and (ii) SFAC New Holdings shall cease to
own legally and beneficially 100% of each class of Capital
Stock of the Borrower (other than any New Holdings Permitted
Preferred Stock), free of Liens (other than the Lien created
by the SFAC New Holdings Pledge Agreement); or
(e) the Borrower shall cease to own legally and
beneficially 100% of each class of Capital Stock of the
Receivables Subsidiary and the Special Purpose Subsidiary,
free of Liens (other than the Liens created by the Borrower
Pledge Agreement); or
(f) any Capital Stock of any Subsidiary of the
Borrower (other than (A) 20% of the common stock of Boudin
International, Inc. and (B) the common stock of Trocano)
shall cease to be owned by the Borrower, a Revolving Credit
Borrower or a Subsidiary Guarantor, free of Liens (other
than Liens created pursuant to the Pledge Agreements) or the
Collateral Agent shall cease to have a perfected first
priority security interest in any such Capital Stock
pursuant to a Pledge Agreement, in each case under this
clause (f) except to the extent permitted by Section 7.2.11
or Section 7.2.12; or
(g) the Borrower shall own any Capital Stock in
which the Collateral Agent does not have a perfected first
priority security interest as security for the Obligations
of the Borrower; or
(h) a change of control as defined in the New 11-?%
Senior Note Indenture, the New 12-?% Senior Note Indenture,
the New Subordinated Note Indenture or the SFAC Securities
Purchase Agreement shall occur.
Closing Date means the date on which the Existing Term Loans
were made, which occurred on March 16, 1998.
Code means the Internal Revenue Code of 1986, and the
regulations thereunder, in each case as amended, reformed or
otherwise modified from time to time.
Collateral means all assets of the Obligors, now or
hereafter acquired, upon which a Lien is purported to be created
by any Security Document.
Collateral Account means the account of the Borrower at
LaSalle National Bank at its office at 135 South LaSalle Street,
Chicago, Illinois, into which all funds from the Concentration
Accounts of the Borrower or any of its Subsidiaries shall be
deposited on a daily basis, which account shall be pledged and
assigned to the Collateral Agent on behalf of the Term Loan
Lenders.
Collateral Account Agreement means the Collateral Account
Agreement executed and delivered by the Borrower on the Amendment
No. 2 Effective Date, substantially in the form of Exhibit H-3
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
Collateral Agent is defined in the preamble and includes
each other Person as shall have subsequently been appointed as
the successor Collateral Agent pursuant to Section 9.4 and
Section 10.4 of the Revolving Credit Agreement.
Commitment means, as to any Lender, such Lender's Revolving
Credit Commitment.
Compliance Certificate means a certificate duly completed
and executed by the chief financial or accounting Authorized
Officer of the Borrower, substantially in the form of Exhibit E
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time, together with such changes
thereto as the Agents may from time to time reasonably request
for the purpose of monitoring the Borrower's compliance with the
financial covenants contained herein.
Concentration Account means a demand, time, savings,
passbook or other account of the Borrower or any Subsidiary of
the Borrower established and maintained with a Concentration
Account Bank on the Amendment No. 2 Effective Date, and subject
to a Concentration Account Agreement, into which the Borrower or
such Subsidiary of the Borrower deposits all cash, checks, notes,
drafts, bills of exchange, money orders and other like
instruments and proceeds of Collateral, which account shall be
pledged and assigned to the Collateral Agent on behalf of the
Term Loan Lenders.
Concentration Account Agreement means a Concentration
Account Agreement executed and delivered by the Borrower or the
relevant Subsidiary of the Borrower and each Concentration
Account Bank, substantially in the form of Exhibit H-1 hereto, as
such agreement may be amended, supplemented, amended and
restated, or otherwise modified from time to time.
Concentration Account Bank means the Administrative Agent,
LaSalle Bank, N.A., or another bank, savings and loan
association, credit union or other similar financial institution
acceptable to the Collateral Agent that has executed a
Concentration Account Agreement.
Consolidated EBITDA? means, for any period and as to any
Person, the sum (without duplication) of
(a) Consolidated Net Income,
plus
(b) the amount deducted in determining Consolidated
Net Income representing non-cash charges, including
depreciation and amortization,
plus
(c) the amount deducted in determining Consolidated
Net Income representing all federal, state and local income
taxes (whether paid in cash or deferred) of such Person and
its Subsidiaries,
plus
(d) the amount deducted in determining Consolidated
Net Income representing Consolidated Interest Expense
(including deferred financing costs and other non-cash
interest expenses) of such Person and its Subsidiaries,
minus
(e) an amount equal to the amount of Consolidated
Non-Cash Credits included in determining Consolidated Net
Income.
Consolidated Interest Expense means, for any period and as
to any Person, the amount of interest expense (net of interest
income) of such Person and its consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP, for
such period on the aggregate principal amount of its
indebtedness, including the portion of any payments made in
respect of Capitalized Lease Liabilities allocable to interest
expense and any purchase discount adjustments or any interest or
other charges payable during such period to purchasers of
accounts receivable or participations therein or securities
secured thereby by the Receivables Subsidiary or a trust
established by the Receivables Subsidiary and, whether or not
included in interest expense, expenses associated with lease
obligations and sale leaseback arrangements repurchased in the
1998 Fiscal Year pursuant to clause (i) of Section 7.2.8, but
excluding (to the extent included in the calculation of
Consolidated Interest Expense for such period) the amortization
of fees, costs and expenses paid by such Person in connection
with the refinancing of the 1995 Revolving Credit Agreement and
the 1995 Term Loan Agreement or the Restructuring.
Consolidated Net Income means, for any period and as to any
Person, the aggregate net income of such Person and its
consolidated Subsidiaries determined on a consolidated basis in
accordance with GAAP for such period, excluding extraordinary
gains and extraordinary losses.
Consolidated Non-Cash Credits means, with respect to
determining Consolidated Net Income of any Person for any period
of determination, the amount of all non-cash credits (determined
in accordance with GAAP) which, in the aggregate, exceed
$2,500,000 and were included in the determination of Consolidated
Net Income for such Person for such period.
Consolidated Total Debt means, on any date, without
duplication, the outstanding principal amount of all Indebtedness
of any Person and its consolidated Subsidiaries of the type
referred to in clauses (a), (b) (other than undrawn trade letters
of credit and undrawn letters of credit in respect of workers
compensation, insurance, performance and surety bonds and similar
obligations, in each case incurred in the ordinary course of
business), (c) or (e) of the definition of Indebtedness and any
Guarantee Obligation in respect of any of the foregoing.
Consolidated Total Senior Secured Debt means, on any date,
without duplication, the outstanding principal amount of all
secured Indebtedness (other than any Indebtedness that, by its
terms, is subordinate in right of payment to the payment in full
in cash of the Obligations) of any Person and its consolidated
Subsidiaries of the type referred to in clauses (a), (b) (other
than undrawn trade letters of credit and undrawn letters of
credit in respect of workers compensation, insurance, performance
and surety bonds and similar obligations, in each case incurred
in the ordinary course of business), (c) or (e) of the definition
of Indebtedness and any Guarantee Obligation in respect of any of
the foregoing.
Continuation/Conversion Notice means a notice of
continuation or conversion and certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of
Exhibit C hereto.
Controlled Foreign Subsidiary means a subsidiary which is a
controlled foreign corporation (as defined in Section 957(a) of
the Code).
controlled Group means all members of a controlled group of
corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control
which, together with the Borrower, its Subsidiaries or the
Revolving Credit Borrowers, are treated as a single employer
under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA.
Covered Taxes means any Taxes other than Taxes imposed with
respect to the Administrative Agent or any Term Loan Lender by
reason of a connection between the Administrative Agent or such
Term Loan Lender and the relevant taxing jurisdiction, including,
without limitation, a connection arising from such Person being
or having been a citizen or resident of such jurisdiction, or
having or having had a permanent establishment or fixed place of
business or being or having been engaged in business therein, but
excluding a connection arising solely from such Person having
executed, delivered, performed its obligations or received any
payment under, or enforced, this Agreement or any Note. Taxes
shall be considered Covered Taxes if such Taxes are imposed on
(i) the Administrative Agent solely by reason of a connection
between a Term Loan Lender (but not the Administrative Agent) and
the relevant taxing jurisdiction or (ii) a Term Loan Lender
solely by reason of a connection between the Administrative Agent
or any other Term Loan Lender (but not such Term Loan Lender) and
the relevant taxing jurisdiction.
Default means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
Deposit Account means each demand, time, savings, passbook
or other account of the Borrower or any Subsidiary of the
Borrower identified as such in Item 6.19 of the Disclosure
Schedule maintained with a bank, savings and loan association,
credit union or other financial institution.
Disclosure Schedule means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented, amended
and restated or otherwise modified from time to time by the
Borrower with the written consent of the Required Term Loan
Lenders.
DLJ is defined in the preamble.
Dollar and the sign $ mean lawful money of the United
States.
Documentation Agent is defined in the preamble.
Domestic Office means, relative to any Term Loan Lender, the
office of such Term Loan Lender designated as such Term Loan
Lender's Domestic Office below its signature hereto or in a
Lender Assignment Agreement, or such other office of a Term Loan
Lender (or any successor or assign of such Term Loan Lender)
within the United States as may be designated from time to time
by notice from such Term Loan Lender, as the case may be, to each
other Person party hereto.
Environmental Laws means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
?ERISA? means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also
refer to any successor sections.
Event of Default is defined in Section 8.1.
Exchanged Bakery is defined in clause (c) of Section 7.2.12.
Exchanged Bakery Transaction is defined in clause (c) of
Section 7.2.12.
Existing Revolving Credit Agreement is defined in the third
recital.
Existing Revolving Credit Borrowers is define in the third
recital.
Existing Term Loan Agreement is defined in the second
recital.
Existing Term Loan Lenders is defined in the second recital.
Existing Term Loans is defined in the second recital.
Federal Funds Rate means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day
which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized
standing selected by it.
Financing Documents means, collectively, the SFAC Senior
Debenture Documents, the SFAC Subordinated Debenture Documents,
the SFAC New Holdings Senior Secured Debenture Documents, the
1993 Senior Note Documents, the 1995 Senior Note Documents, the
Subordinated Note Documents, the New 12-?% Senior Note Documents,
the New Subordinated Note Documents, the New 11-?% Senior Note
Documents, the SFC Sub Senior Subordinated Debenture Documents
and the Receivables Purchase Documents.
First-Tier Holding Companies means each of the Subsidiaries
of the Borrower listed on Part I of Item A of Schedule III hereto
and any other direct Subsidiary of the Borrower that constitutes
a holding company from time to time acquired or created in
accordance with clause (c) of Section 7.1.7.
Fiscal Month means any fiscal month of a Fiscal Year.
Fiscal Quarter means any fiscal quarter of a Fiscal Year.
Fiscal Year means any period of twelve consecutive calendar
months ending on December 31 of such calendar year.
Foreign Subsidiary means each of the Subsidiaries of the
Borrower listed on Item D of Schedule III hereto and any other
non-U.S. Subsidiary of the Borrower from time to time acquired or
created in accordance with clause (c) of Section 7.1.7.
F.R.S. Board means the Board of Governors of the Federal
Reserve System or any successor thereto.
GAAP is defined in Section 1.4.
Governmental Approval means any action, authorization,
consent, approval, license, lease, ruling, permit, tariff, rate,
certification, exemption, filing, variance, claim, order,
judgment, decree, publication, notices to, declarations of or
with or registration by or with any Regulatory Authority.
Governmental Rule means any statute, law, regulation,
ordinance, rule, judgment, order, decree, permit, concession,
grant, franchise, license, agreement, directive, guideline,
policy, requirement, or other governmental authorization
including any conditions thereof, restriction or any similar form
of published or otherwise known decision of or determination by,
or any interpretation or administration of any of the foregoing
by, any Regulatory Authority, whether now or hereafter in effect
(including any Environmental Law).
Guarantee Obligation means, as to any Person (the
guaranteeing person), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the primary obligations) of any
other third Person (the primary obligor) in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of
the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing persons maximum reasonably
anticipated liability in respect thereof as determined by the
Borrower in good faith.
Haas Wheat means Haas Wheat & Partners Incorporated, a
Delaware corporation.
Hazardous Material means
(a) any hazardous substance, as defined by CERCLA;
(b) any hazardous waste, as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent
decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
Hedging Obligations means, with respect to any Person, all
liabilities of such Person under currency exchange agreements,
interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
herein, hereof, hereto, hereunder and similar terms
contained in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be,
as a whole and not to any particular Section, paragraph or
provision of this Agreement or such other Loan Document.
Holding Companies means each of the Subsidiaries of the
Borrower listed in Item A of Schedule III hereto and any other
Subsidiary of the Borrower that constitutes a holding company
from time to time acquired or created in accordance with clause
(c) of Section 7.1.7.
Impermissible Qualification means, relative to the opinion
or certification of any independent public accountant as to any
financial statement of the Borrower any qualification or
exception to such opinion or certification
(a) which is of a going concern or similar nature;
(b) which relates to the limited scope of
examination of matters relevant to such financial statement;
or
(c) which relates to the treatment or classification
of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to
such item the effect of which would be to cause the Borrower
to be in default of any of its obligations under Section
7.2.5.
Inactive Subsidiaries means each of the Subsidiaries of the
Borrower listed on Item E of Schedule III hereto and any other
Subsidiary of the Borrower so designated by the Borrower and
consented to by the Syndication Agent from time to time.
including and include mean including without limiting the
generality of any description preceding such term, and, for
purposes of this Agreement and each other Loan Document, the
parties hereto agree that the rule of ejusdem generis shall not
be applicable to limit a general statement, which is followed by
or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
Indebtedness of any Person means, without duplication:
(a) all obligations of such Person for borrowed
money or for the deferred purchase price of property or
services (exclusive of deferred purchase price arrangements
in the nature of open or other accounts payable owed to
suppliers on normal terms in connection with the purchase of
goods and services in the ordinary course of business) and
all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit,
whether or not drawn, and banker's acceptances issued for
the account of such Person;
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in
accordance with GAAP, all Indebtedness of the types referred
to in clauses (a) through (d) above (excluding prepaid
interest thereon) secured by a Lien on property owned or
being purchased by such Person (including Indebtedness
arising under conditional sales or other title retention
agreements), whether or not such Indebtedness shall have
been assumed by such Person or is limited in recourse;
provided, however, that, to the extent such Indebtedness is
limited in recourse to the assets securing such
Indebtedness, the amount of such Indebtedness shall be
limited to the fair market value of such assets; and
(f) all Guarantee Obligations of such Person in
respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint
venturer (to the extent such Person is liable for such
Indebtedness).
Indemnified Liabilities is defined in Section 10.4.
Indemnified Parties is defined in Section 10.4.
Independent Director means a member of the Board of
Directors of the Special Purpose Subsidiary who (i) is not a
stockholder, director, officer or employee of SFAC or any of its
Subsidiaries or Affiliates and (ii) is not a Person controlling
any such prohibited stockholder, nor is such Person a member of
the immediate family of any such prohibited stockholder,
director, officer or employee. As used in this definition of
Independent Director, the term control means the possession,
directly or indirectly, of the 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.
Independent Auditor means an internationally recognized firm
of independent certified public accountants constituting one of
the "Big Six" accounting firms or another internationally
recognized firm of independent certified public accountants
acceptable to the Required Term Loan Lenders and the Required
Revolving Credit Lenders.
Intellectual Property means, collectively, all Collateral
under and as defined in each Revolving Credit Copyright Security
Agreement, Revolving Credit Patent Security Agreement and
Revolving Credit Trademark Security Agreement.
Interest Coverage Ratio means, at the end of any Fiscal
Quarter, the ratio computed for the period consisting of such
Fiscal Quarter and each of the three immediately prior Fiscal
Quarters of:
(a) Consolidated EBITDA of the Borrower and its
Subsidiaries for all such Fiscal Quarters;
to
(b) the cash portion of Consolidated Interest
Expense of the Borrower and its Subsidiaries for all such
Fiscal Quarters;
provided that if, during any such period, the Borrower or any of
its Subsidiaries shall have made one or more acquisitions, the
Interest Coverage Ratio for such period shall be calculated on a
Pro Forma Basis as if each such acquisition had been made on the
first day of such period.
Interest Period means, relative to any LIBO Rate Loan, the
period beginning on (and including) the date on which such LIBO
Rate Loan is made or continued as, or converted into, a LIBO Rate
Loan pursuant to Section 2.3 or 2.4 and shall end on (but
exclude) the day which numerically corresponds to such date one,
three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such
month), as the Borrower may select in its relevant notice
pursuant to Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall be permitted to select up to
five Interest Periods to be in effect at any one time for
each Term Loan;
(b) if such Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
end on the next following Business Day (unless such next
following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Term Loan may end
later than the Stated Maturity Date for such Term Loan.
Investment means, relative to any Person,
(a) any loan or advance made by such Person to any
other Person (excluding commission, travel, petty cash and
similar advances to officers and employees made in the
ordinary course of business);
(b) any Guarantee Obligation of such Person incurred
in connection with loans or advances described in clause
(a); and
(c) any ownership or similar interest held by such
Person in any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity
thereon and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market
value of such property at the time of such Investment.
Investors means, collectively, each Person who purchased
SFAC Common Stock and SFAC Subordinated Debentures pursuant to
the SFAC Securities Purchase Agreement.
Issuer is defined in the Revolving Credit Agreement.
Keystone means Keystone, Inc., a Texas corporation.
Lender Assignment Agreement means a lender assignment
agreement substantially in the form of Exhibit K hereto.
Lenders means, collectively, the Term Loan Lenders and the
Revolving Credit Lenders.
Leverage Ratio means, at the end of any Fiscal Quarter, the
ratio of
(a) Consolidated Total Debt of the Borrower and its
Subsidiaries outstanding at such time less any cash
maintained by the Borrower and its Subsidiaries which is not
restricted by the terms of any account or agreement in its
usage or application, except as provided in Section 7.1.12;
to
(b) Consolidated EBITDA of the Borrower and its
Subsidiaries for the period of four consecutive Fiscal
Quarters most recently ended on or prior to such date;
provided that if, during any such period, the Borrower or any of
its Subsidiaries shall have made one or more Acquisitions, the
Leverage Ratio for such period shall be calculated on a Pro Forma
Basis as if each such Acquisition had been made on the first day
of such period.
LIBO Rate means, relative to any Interest Period for LIBO
Rate Loans, the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to
the next 1/100th of 1%) of the rates of interest per annum at
which dollar deposits in the approximate amount of the Term Loan
to be made or continued as, or converted into, a LIBO Rate Loan
by the Administrative Agent and having a maturity comparable to
such Interest Period would be offered to the Administrative Agent
in the London interbank market at its request at approximately
11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
LIBO Rate Loan means a Term Loan bearing interest, at all
times during an Interest Period applicable to such Term Loan, at
a fixed rate of interest determined by reference to the LIBO Rate
(Reserve Adjusted).
LIBO Rate (Reserve Adjusted)? means, relative to any Term
Loan to be made, continued or maintained as, or converted into, a
LIBO Rate Loan for any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for
LIBO Rate Loans will be adjusted automatically as to all LIBO
Rate Loans then outstanding as of the effective date of any
change in the LIBOR Reserve Percentage.
LIBOR Office means, relative to any Lender, the office of
such Lender designated as such on Schedule II hereto or
designated in the Lender Assignment Agreement pursuant to which
such Lender became a Lender hereunder or such other office of a
Lender as shall be so designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, which
shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
LIBOR Reserve Percentage means, relative to any Interest
Period for LIBO Rate Loans, the percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on
such day (whether or not applicable to any Lender) under
regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
Eurocurrency Liabilities in Regulation D of the F.R.S. Board).
Lien means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property,
or any filing or recording of any instrument or document in
respect of the foregoing (other than liens arising from the
filing of precautionary UCC financing statements in connection
with obligations under leases that are not Capitalized Lease
Liabilities to the extent that such financing statements relate
solely to the property subject to such lease obligations and
where the debtor named on such financing statements is not the
legal or beneficial owner of the described property), to secure
payment of a debt or performance of an obligation or any other
priority or preferential treatment of any kind or nature
whatsoever that has the practical effect of creating a security
interest in property.
Loan Documents means, collectively, the Term Loan Documents
and the Revolving Credit Documents.
Loans means, collectively, the Term Loans and the Revolving
Credit Loans.
"Management " means, with respect to any Person, the
officers, directors and other employees, or former officers,
directors and other employees, of such Person.
Management Agreements means, collectively, the three
separate Financial Advisory Agreements, each dated as of August
16, 1993, between SFC (on the one hand) and Haas Wheat, Keystone
and Penobscot-MB Partners, an affiliate of Acadia (on the other
hand), respectively, as the same have been or may be amended,
supplemented, amended and restated or otherwise modified from
time to time in accordance with the provisions of Section 7.2.13.
Marketable Securities means, in connection with any Asset
Sale, any readily marketable equity or debt securities that are
received by the Borrower or any Subsidiary of the Borrower as
consideration for such Asset Sale and are (a) traded on the New
York Stock Exchange, the American Stock Exchange or the National
Association of Securities Dealers Automated Quotation National
Market System and (b) issued by a corporation that has
outstanding one or more issues of debt or preferred stock
securities that are rated investment grade by Moody's or Standard
& Poor's; provided, that in no event shall the excess of the
aggregate amount of securities of any one such corporation held
immediately following the consummation of any Asset Sale by the
Borrower and its Subsidiaries over 10 times the average daily
trading volume of such securities during the 20 trading days
immediately preceding the consummation of such Asset Sale be
deemed Marketable Securities.
Material Adverse Effect means a material adverse effect on
(a) the business, operations, assets, property or condition
(financial or otherwise) or prospects of the Borrower and its
Subsidiaries or the Revolving Credit Borrowers and their
respective Subsidiaries, in each case taken as a whole, (b) the
ability of the Borrower to perform its obligations under any Term
Loan Document to which it is a party, (c) the ability of the
Obligors (taken as a whole) to perform their respective
obligations under the Loan Documents, (d) the validity or
enforceability of this Agreement, any of the Term Notes or any
other Term Loan Document against any Obligor which is a party
hereto or thereto or the rights or remedies of the Arranger, the
Agents, the Collateral Agent or the Term Loan Lenders hereunder
or thereunder or (e) the validity or enforceability of the
Revolving Credit Agreement any of the Revolving Credit Notes or
any other Revolving Credit Document against any Revolving Credit
Obligor which is a party thereto or the rights or remedies of the
Arranger, the Agents, the Collateral Agent or the Revolving
Credit Lenders thereunder.
Measurement Period means, at any date, the period of four
consecutive Fiscal Quarters ended most recently prior to such
date.
Metz means Metz Baking Company, an Iowa corporation.
Moody's means Moody's Investors Service, Inc.
Mortgage means, collectively, each Mortgage or Deed of Trust
executed and delivered pursuant to the terms of this Agreement,
including Section 7.1.7, substantially in the form of Exhibit J
hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its
terms.
Mother's means Mothers Cake & Cookie Co., a California
corporation.
Net Cash Proceeds means (a) when used in respect of any
Asset Sale, the aggregate cash proceeds received by SFAC or any
direct or indirect Subsidiary of SFAC in respect of such Asset
Sale (and any cash payments received in respect of promissory
notes or other non-cash consideration delivered to SFAC or any
direct or indirect Subsidiary of SFAC in respect of an Asset
Sale), less (without duplication) (i) all legal, title, recording
and transfer tax expenses reasonably attributable to such Asset
Sale, (ii) the reasonable fees and expenses (including legal
fees, consulting fees, accounting fees and brokers and
underwriters commissions paid to third parties which are not
Affiliates or Subsidiaries of the Borrower) incurred in
connection with such Asset Sale, (iii) all federal, state, local
and foreign taxes reasonably attributable to such Asset Sale,
(iv) the aggregate amount of reserves required in the Borrower's
reasonable judgment to be maintained on the Borrower's books in
order to pay contingent liabilities incurred in respect of such
Asset Sale and (v) amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or
assets the subject of such Asset Sale; provided that amounts
deducted from the aggregate cash proceeds of any Asset Sale
pursuant to clause (iv) and not actually paid in liquidation of
such contingent liabilities shall be deemed to be Net Cash
Proceeds of such Asset Sale and shall be subject to mandatory
prepayment provisions of clause (c) of Section 3.1.1; and
(b) when used in respect of any incurrence of Indebtedness by, or
the issuance of any Capital Stock (or other equity interests) of,
SFAC or any direct or indirect Subsidiary of SFAC, the aggregate
cash proceeds received by SFAC or the relevant direct or indirect
Subsidiary of SFAC from such incurrence or issuance (and any cash
payments received in respect of promissory notes or other non-
cash consideration delivered to SFAC or any direct or indirect
Subsidiary of SFAC in respect of any such incurrence or
issuance), less (without duplication) the reasonable fees and
expenses (including legal fees, consulting fees, accounting fees
and brokers and underwriters commissions paid to third parties
which are not Affiliates or Subsidiaries of the Borrower)
incurred in connection with such incurrence or issuance.
New 12-1/8% Senior Note Documents means, collectively, the New
12-1/8% Senior Notes and the New 12-1/8% Senior Note Indenture.
New 12-1/8% Senior Note Indenture means the Indenture, dated
as of June 11, 1999, between the New 12-1/8% Senior Note Indenture
Trustee and the Borrower pursuant to which the New 12-1/8% Senior
Notes were issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
New 12-1/8% Senior Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the New 12-1/8% Senior Notes under the New 12-1/8% Senior
Note Indenture, and any successor thereto as trustee under the
New 12-1/8% Senior Note Indenture.
New 12-1/8% Senior Notes means the 12-1/8% Senior Notes due 2002
of the Borrower, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
New Holdings Permitted Preferred Stock means preferred stock
of the Borrower that (i) ranks senior to the common stock of the
Borrower in respect of dividends and distributions in a
liquidation of the Borrower; (ii) does not mature or is not
mandatorily redeemable, pursuant to a sinking fund or otherwise,
or redeemable at the option of the holder thereof, in whole or in
part, prior to June 15, 2010; (iii) provides that dividends may
be paid, at the option of the Borrower, by the issuance of
additional shares of New Holdings Permitted Preferred Stock, or
if permitted under the terms hereof, in cash after June 15,
2005; and (iv) is issued in compliance with Section 4.16 of the
SFAC New Holdings Senior Secured Debenture Indenture.
New Subordinated Note Documents means, collectively, the New
Subordinated Notes and the New Subordinated Note Indenture.
New Subordinated Note Indenture means the Indenture, dated
as of June 11, 1999, between the New Subordinated Note Indenture
Trustee and the Borrower pursuant to which the New Subordinated
Notes were issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
New Subordinated Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the New Subordinated Notes under the New Subordinated
Note Indenture, and any successor thereto as trustee under the
New Subordinated Note Indenture.
New Subordinated Notes means the 13-?% Senior Subordinated
Notes due 2003 of the Borrower, as the same may be amended,
supplemented or otherwise modified from time to time in
accordance with Section 7.2.13.
New 11-1/4% Senior Note Documents means, collectively, the New
11-1/4% Senior Notes and the New 11-1/4% Senior Note Indenture.
New 11-1/4% Senior Note Indenture means the Indenture, dated
as of June 11, 1999, between the New 11-1/4% Senior Note Indenture
Trustee and the Borrower, pursuant to which the New 11-1/4% Senior
Notes were issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
New 11-1/4% Senior Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the New 11-1/4?% Senior Notes under the New 11-1/4% Senior
Note Indenture, and any successor thereto as trustee under the
New 11-1/4% Senior Note Indenture.
New 11-1/4% Senior Notes means the 11-1/4% Senior Notes due 2001
of the Borrower, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
1993 Senior Note Documents means, collectively, the
Securities Purchase Agreement, the 1993 Senior Notes and the 1993
Senior Note Indenture.
1993 Senior Note Indenture means the Indenture, dated as of
August 16, 1993, between the 1993 Senior Note Indenture Trustee
and SFC, as heretofore amended, pursuant to which the 1993 Senior
Notes were issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
1993 Senior Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the 1993 Senior Notes under the 1993 Senior Note
Indenture, and any successor thereto as trustee under the 1993
Senior Note Indenture.
1993 Senior Notes means the 10-1/4% Series B Senior Notes
due 2001 of SFC, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
1995 Revolving Credit Agreement means the Revolving Credit
Agreement, dated as of August 16, 1993 and amended and restated
as of July 17, 1995, among the Revolving Credit Borrowers (as
defined in the 1995 Revolving Credit Agreement), the various
financial institutions parties thereto, and The Chase Manhattan
Bank (formerly doing business as Chemical Bank), as the
administrative agent for such financial institutions.
1995 Senior Note Documents means, collectively, the 1995
Senior Notes Purchase Agreement, the 1995 Senior Notes and the
1995 Senior Note Indenture.
1995 Senior Note Indenture means the Indenture, dated as of
July 17, 1995, between the 1995 Senior Note Indenture Trustee and
SFC pursuant to which the 1995 Senior Notes were issued, as the
same may be amended, supplemented or otherwise modified from time
to time in accordance with Section 7.2.13.
1995 Senior Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the 1995 Senior Notes under the 1995 Senior Note
Indenture, and any successor thereto as trustee under the 1995
Senior Note Indenture.
1995 Senior Notes means the 11-1/8% Series B Senior Notes
due 2002 of SFC, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section
7.2.13.
1995 Senior Notes Purchase Agreement means the Purchase
Agreement, dated as of July 17, 1995, among SFC and the initial
purchasers of the 1995 Senior Notes, as the same may be amended,
supplemented or otherwise modified from time to time in
accordance with Section 7.2.13.
1995 Term Loan Agreement means the Term Loan Agreement,
dated as of July 17, 1995, among SFC, the various financial
institutions parties thereto, and The Chase Manhattan Bank
(formerly doing business as Chemical Bank), as the administrative
agent for such financial institutions.
Non-U.S. Subsidiary means a Subsidiary of the Borrower that
is not a U.S. Subsidiary.
Non-U.S. Term Loan Lender means any Term Loan Lender that is
not a U.S. Person.
Note means, collectively, the Term Notes and the Revolving
Credit Notes.
Obligations means, collectively, the Term Loan Obligations
and the Revolving Credit Obligations.
Obligor means, as the context may require, the Borrower, the
Parent, the Special Purpose Subsidiary, each Subsidiary of the
Borrower (other than the Receivables Subsidiary and any Inactive
Subsidiary) and any other Person (other than any Agent, the
Collateral Agent, the Documentation Agent, the Arranger or any
Lender) to the extent such Person is obligated under this
Agreement or any other Loan Document.
Operating Company Leverage Ratio means, at the end of any
Fiscal Quarter, the ratio of
(a) Consolidated Total Senior Secured Debt of the
Revolving Credit Borrowers and their respective Subsidiaries
outstanding at such time;
to
(b) Consolidated EBITDA of the Revolving Credit
Borrowers and their respective Subsidiaries for the period
of four consecutive Fiscal Quarters most recently ended on
or prior to such date;
provided that if, during any such period, any Revolving Credit
Borrower or any of its Subsidiaries shall have made one or more
Acquisitions, the Operating Company Leverage Ratio for such
period shall be calculated on a Pro Forma Basis as if each such
Acquisition had been made on the first day of such period.
Operating Subsidiaries means each of the direct and indirect
Subsidiaries of the Borrower listed on Item C of Schedule III
hereto and each other Person which becomes a Subsidiary of the
Borrower (other than any Subsidiary of the Borrower that is
designated as a Holding Company) after the Closing Date. Except
as set forth on Item C of Schedule III hereto, each Operating
Subsidiary is, or will be, a wholly owned, direct or indirect,
Subsidiary of the Borrower.
Organic Document means, relative to any Obligor, as
applicable, its certificate of incorporation, by-laws,
certificate of partnership, partnership agreement, certificate of
formation, limited liability agreement and all shareholder
agreements, voting trusts and similar arrangements applicable to
any of such Obligor's partnership interests, limited liability
company interests or authorized shares of capital stock.
Other Bakeries is defined in clause (c) of Section 7.2.12.
Parent means SFAC New Holdings.
Participant is defined in Section 10.11.2.
PBGC means the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
Pension Plan means a pension plan, as such term is defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA
(other than a multiemployer plan as defined in Section 4001(a)(3)
of ERISA), and to which the Borrower or any of its Subsidiaries
or any corporation, trade or business that is, along with the
Borrower or any of its Subsidiaries, a member of a Controlled
Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
Perfection Certificate means the Perfection Certificate
executed and delivered by an Authorized Officer of the Borrower
pursuant to Section 5.1.7 or 7.1.7, substantially in the form of
Exhibit N hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
Person means any natural person, corporation, limited
liability company, partnership, joint venture, joint stock
company, firm, association, trust or unincorporated organization,
government, governmental agency, court or any other legal entity,
whether acting in an individual, fiduciary or other capacity.
Plan means any Pension Plan or Welfare Plan.
Pledge Agreements mean, collectively, the Borrower Pledge
Agreement and the Revolving Credit Pledge Agreement.
Pooling Agreement means the SFC Master Trust Pooling
Agreement, dated as of November 16, 1994 by and among the
Receivables Subsidiary, SFC, in its capacity as Master Servicer,
and The Chase Manhattan Bank (formerly doing business as Chemical
Bank), not in its individual capacity but solely as trustee for
the SFC Master Trust created thereunder, and, from and after the
date on which a Replacement Receivables Purchase Facility is
effective, the pooling agreement executed and delivered in
connection therewith, in each case as amended, supplemented,
amended and restated, or otherwise modified from time to time.
Primary Investors means, collectively, the Principals and
their respective Related Parties.
Principals means, collectively, Haas Wheat, Acadia and
Keystone.
Pro Forma Adjustment means, in connection with any
acquisition or sale of a Person or any of its businesses or
assets, (i) any related incurrence, repayment or refinancing of
Indebtedness and the application of proceeds therefrom, (ii)
projected, quantifiable, tangible changes in operating results
resulting from such acquisition or sale (including, without
limitation, cost savings resulting from head count reductions,
plant consolidations, the rationalization of distribution routes
and the like) or (iii) other similar and related transactions,
with each such acquisition, sale, event, change or other
transaction described in clauses (i), (ii) or (iii) above to be
calculated as if realized as of the first day of any such
applicable period of calculation.
Pro Forma Basis means, in respect of determining the
Leverage Ratio, the Senior Secured Leverage Ratio, the Operating
Company Leverage Ratio and the Interest Coverage Ratio and the
Consolidated EBITDA financial covenant contained in clause (e) of
Section 7.2.5, for any applicable period of calculation, that pro
forma effect shall be given to any acquisition or sale of a
Person or any of its businesses or assets, and, in connection
with any such acquisition or sale, pro forma effect shall also be
given to any Pro Forma Adjustment; provided, however, that such
Pro Forma Adjustment shall be calculated in accordance with (x)
Article 11 of Regulation S-X (Regulation S-X?) promulgated under
the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended, or (y) GAAP. Any term or
provision hereof to the contrary notwithstanding, before any Pro
Forma Adjustment shall be given effect for purposes of this
definition, the Borrower shall deliver to the Agents a
certificate executed by its chief financial or accounting
Authorized Officer certifying that such Pro Forma Adjustment has
been calculated in accordance with Regulation S-X or GAAP, as the
case may be, and shall include a calculation of such Pro Forma
Adjustment prepared in reasonable detail, together with
appropriate back up; provided, that, in the case of any Pro Forma
Adjustment which aggregates in excess of $5,000,000, the Borrower
shall cause to be delivered to the Agents a certificate from an
Independent Auditor certifying that with respect to such Pro
Forma Adjustment, (i) such Independent Auditor has performed the
Agreed-Upon Procedures and (ii) subject to usual and customary
exceptions and qualifications, in the course of performing such
Agreed-Upon Procedures nothing came to the attention of such
Independent Auditor which caused it to believe that managements
assumptions do not provide a reasonable basis for presenting the
significant effects attributable to the transaction, that the
related Pro Forma Adjustments do not give appropriate effect to
those assumptions, or that the pro forma financial statements do
not reflect the proper application of those Pro Forma Adjustments
to the historical financial statements. Furthermore, in
calculating the Interest Coverage Ratio, (i) interest on
outstanding Indebtedness determined on a fluctuating basis as of
the determination date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest on such Indebtedness
in effect on the determination date; (ii) if interest on any
Indebtedness actually incurred on the determination date may
optionally be determined at an interest rate based upon a factor
of a prime or similar rate, a eurocurrency interbank offered
rate, or other rates, then the interest rate in effect on the
determination date will be deemed to have been in effect during
the relevant period; and (iii) notwithstanding clause (i) above,
interest on Indebtedness determined on a fluctuating basis, to
the extent such interest is covered by agreements relating to
interest rate swaps or similar interest rate protection Hedging
Obligations, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such
agreements.
Quarterly Payment Date means the last day of each January,
April, July and October, or, if any such day is not a Business
Day, the next succeeding Business Day, commencing with July,
1999.
Rate Protection Agreement means, collectively, any agreement
in respect of Hedging Obligations entered into by the Borrower or
any of its Subsidiaries pursuant to the terms of this Agreement
or the Revolving Credit Agreement under which the counterparty to
such agreement is (or at the time such Rate Protection Agreement
was entered into, was) a Lender or an Affiliate of a Lender.
Receivables means accounts receivable, including Receivables
as defined in the Pooling Agreement.
Receivables Parent Note means the Parent Note, as such term
is defined in Section 8.3 of the Receivables Sale Agreement, and
from and after the date on which a Replacement Receivables
Purchase Facility is effective, the replacement note executed and
delivered in connection therewith, in each case as amended,
supplemented or otherwise modified from time to time.
Receivables Purchase Documents means, collectively, the
Pooling Agreement, each Supplement to the Pooling Agreement, the
Servicing Agreement, the Receivables Sale Agreement, the
Receivables Parent Note, the Receivables Subordinated Note, the
Insurance and Reimbursement Agreement and any related instruments
and agreements executed in connection therewith; provided that,
on and after the date, if any, on which the Receivables
Subsidiary shall have replaced or refinanced, in whole or in
part, the purchase facility arranged pursuant to the Receivables
Purchase Documents existing on the date hereof with a separate
facility in which ownership interests in, or notes, commercial
paper, certificates or other debt instruments secured by, the
Receivables shall be sold in one or more public offerings,
private placements or otherwise (such replacement facility, the
Replacement Receivables Purchase Facility), the terms and
conditions of which Replacement Receivables Purchase Facility (i)
shall be consented to by the Required Term Loan Lenders and the
Required Revolving Credit Lenders (which consent shall not be
unreasonably withheld and shall be deemed to be given if the
Borrower has not received an objection thereto in writing from
any Lender within 10 days of receipt by such Lender of a
description of the proposed Replacement Receivables Purchase
Facility) or (ii) shall contain terms (including as to initial
amortization) no less favorable to the Obligors party thereto in
all material respects than those contained in the then current
Receivables Purchase Documents (without regard to one-time
charges and fees). As used herein, the term Receivables Purchase
Documents shall be deemed to refer to and otherwise include each
of the operative agreements, instruments and related documents
entered into by, or delivered by or on behalf of, the Receivables
Subsidiary in connection with the creation of such Replacement
Receivables Purchase Facility.
Receivables Sale Agreement means the Amended and Restated
Receivables Sale Agreement, dated as of November 16, 1994, among
the Receivables Subsidiary, as buyer of Receivables thereunder,
SFC, as Master Servicer, and the Receivables Selling
Subsidiaries, as sellers of Receivables thereunder, and, from and
after the date on which a Replacement Receivables Purchase
Facility is effective, the receivables sale agreement executed
and delivered in connection therewith, in each case as amended,
supplemented, amended and restated or otherwise modified from
time to time.
Receivables Selling Subsidiaries means each of the
Subsidiaries of the Borrower from time to time parties to the
Receivables Sale Agreement as a seller of Receivables thereunder.
Receivables Subsidiary means Specialty Foods Finance
Corporation, a Delaware corporation and a wholly-owned Subsidiary
of the Borrower, created to purchase and finance receivables of
the Receivables Selling Subsidiaries, or any other Subsidiary of
the Borrower designated as such by the Borrower, (a) that has
total assets at the time of such designation with a book value of
$100,000 or less and (b) with respect to which the Borrower nor
any other Subsidiary of the Borrower has any obligation (i) to
subscribe for additional shares of Capital Stock or other equity
interests therein (other than to finance the purchase of
additional accounts receivable of the Borrower and its
Subsidiaries) or (ii) to maintain or preserve such Receivables
Subsidiary's financial condition or to cause it to achieve
certain levels of operating results.
Register is defined in clause (b)(i) of Section 2.6.
Regulatory Authority means any national, state or local
government, any political subdivision or any governmental, quasi-
governmental, judicial, public or statutory instrumentality,
authority, body or entity, other regulatory bureau, authority,
body or entity, foreign or domestic, including the Federal
Deposit Insurance Corporation, the Comptroller of the Currency,
the F.R.S. Board, any central bank or any comparable authority.
Reimbursement Obligation is defined in the Revolving Credit
Agreement.
Related Fund means, with respect to any Term Loan Lender
that is a fund that invests in loans, any other fund that invests
in loans and is managed by the same investment advisor or
investment manager as such Term Loan Lender.
Related Party means with respect to any Principal (a) any
controlling stockholder or partner, a direct or indirect 80% (or
more) owned Subsidiary, or spouse or immediate family member (in
the case of an individual) of such Principal, (b) any trust,
corporation, partnership or other entity, the controlling
beneficiaries, stockholders, partners or owners of which,
directly or indirectly, consist of such Principal and/ or such
other Persons referred to in the immediately preceding clause (a)
and/or in the succeeding clauses (d) and/or (e), (c) any partner
or stockholder of any Principal as of the Restatement Effective
Date who acquires any assets or voting stock of SFAC or any of
its direct or indirect Subsidiaries pursuant to a general
distribution by such Principal to each of its partners or
stockholders, (d) any officer or director of such Principal or
(e) any officer or director of Oak Hill Partners, Inc. on the
Restatement Effective Date.
Related Property is defined in the Pooling Agreement and
any similar property sold pursuant to any subsequent Pooling
Agreement.
Release means a release, as such term is defined in CERCLA.
Replacement Notice is defined in clause (a) of Section 4.10.
Replacement Term Loan Lender is defined in clause (a) of
Section 4.10.
Required Revolving Credit Lenders is defined in the
Revolving Credit Agreement.
Required Term Loan Lenders means, at any time, Term Loan
Lenders holding more than 50% of the principal amount of the Term
Loans then outstanding.
Resource Conservation and Recovery Act means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as amended.
Restatement Effective Date means the date when all of the
conditions set forth in Section 5.1 shall have been satisfied.
Restatement Effective Date Certificate means the certificate
executed and delivered by the Borrower on the Restatement
Effective Date, substantially in the form of Exhibit D hereto.
Restructuring means the corporate and financial
restructuring of SFAC and certain of its Subsidiaries, including
SFC, as more fully described on Schedule IV hereto.
Revolving Credit Agreement means the Amended and Restated
Revolving Credit Agreement, dated as of the date hereof, among
the Revolving Credit Borrowers, the Revolving Credit Lenders, the
Agents and the Collateral Agent, as the same may be amended,
supplemented, amended and restated, or otherwise modified from
time to time.
Revolving Credit Borrowers means each of the Subsidiaries of
the Borrower party to the Revolving Credit Agreement.
Revolving Credit Borrowers Pledge Agreement is defined in
the Revolving Credit Agreement.
Revolving Credit Borrowers Security Agreement is defined in
the Revolving Credit Agreement.
Revolving Credit Copyright Security Agreements means the
Copyright Security Agreements executed and delivered by each
Subsidiary (other than Foreign Subsidiaries, Inactive
Subsidiaries and Trocano) owning assets of the type included in
the Collateral described therein in favor of the Collateral
Agent, substantially in the form of Exhibit A to a Revolving
Credit Security Agreement, as the same may be amended,
supplemented, amended and restated or otherwise modified from
time to time.
Revolving Credit Documents means, collectively, the
Revolving Credit Agreement, the Revolving Credit Notes, each Rate
Protection Agreement under which the counterparty to such
agreement is (or at the time such Rate Protection Agreement was
entered into, was) a Revolving Credit Lender or an Affiliate of a
Revolving Credit Lender relating to Hedging Obligations of any
Revolving Credit Borrower or any of its Subsidiaries, the SFC New
Holdings Guaranty, the SFAC Agreement, the Subsidiary Guaranty,
the Asset Sale Proceeds Account Agreement, the Revolving Credit
Letters of Credit, each Borrowing Request, each Issuance Request,
each Revolving Credit Security Documents and each other
agreement, document or instrument delivered in connection with
this Agreement or any other Revolving Credit Document, whether or
not specifically mentioned herein or therein.
Revolving Credit Event of Default means an Event of Default
under and as defined in the Revolving Credit Agreement.
Revolving Credit Lenders means each of the financial
institutions from time to time party to the Revolving Credit
Agreement.
Revolving Credit Letters of Credit means each of the letters
of credit issued from time to time by the Issuer for the account
of the respective Revolving Credit Borrowers pursuant to the
Revolving Credit Agreement.
Revolving Credit Loan is defined in the Revolving Credit
Agreement.
Revolving Credit Mortgages is defined in the Revolving
Credit Agreement.
Revolving Credit Note is defined in the Revolving Credit
Agreement.
Revolving Credit Obligations means all obligations (monetary
or otherwise) of any Revolving Credit Borrower and each other
Obligor arising under on in connection with the Revolving Credit
Agreement, the Revolving Credit Notes, each Revolving Credit
Letter of Credit, each other Revolving Credit Documents or any
other document made, delivered or given in connection therewith.
Revolving Credit Patent Security Agreements means the Patent
Security Agreements executed and delivered by each Subsidiary
(other than the Foreign Subsidiaries, Inactive Subsidiaries and
Trocano) owning assets of the type included in the Collateral
described therein in favor of the Collateral Agent, substantially
in the form of Exhibit B to a Revolving Credit Security
Agreement, as the same may be amended, supplemented, amended and
restated, or otherwise modified form time to time.
Revolving Credit Pledge Agreement means, as the context may
require, the Revolving Credit Borrowers Pledge Agreement executed
and delivered by each Revolving Credit Borrower in favor of the
Collateral Agent or the Subsidiary Pledge Agreement, executed and
delivered by each Subsidiary Pledgor in favor of the Collateral
Agent, substantially in the form of Exhibits J-1 and J-2,
respectively, to the Revolving Credit Agreement, as the same may
be amended, supplemented, amended and restated, or otherwise
modified from time to time.
Revolving Credit Security Agreement means, as the context
may require, the Revolving Credit Borrowers Security Agreement
executed and delivered by each Revolving Credit Borrower in favor
of the Collateral Agent or the Subsidiary Security Agreement,
executed and delivered by each Subsidiary (other than the Foreign
Subsidiaries, Inactive Subsidiaries and Trocano) in favor of the
Collateral Agent, substantially in the form of Exhibits K-1 and
K-2, respectively, to the Revolving Credit Agreement, as the same
may be amended, supplemented, amended and restated, or otherwise
modified from time to time.
Revolving Credit Security Documents means, collectively, the
Revolving Credit Pledge Agreements, the Revolving Credit Security
Agreements, the Revolving Credit Copyright Security Agreements,
the Revolving Credit Patent Security Agreements, the Revolving
Credit Security Agreements, the Revolving Credit Pledge
Agreement, the Revolving Credit Trademark Security Agreements and
the Revolving Credit Mortgages, and, from and after the execution
and delivery thereof, all other security documents executed and
delivered to the Collateral Agent granting a Lien on any asset or
assets of any Person to secure the Revolving Credit Obligations
or to secure any guarantee of any such Revolving Credit
Obligations.
Revolving Credit Trademark Security Agreements means the
Trademark Security Agreements executed and delivered by each
Subsidiary (other than the Foreign Subsidiaries, Inactive
Subsidiaries and Trocano) owning assets of the type included in
the Collateral described therein in favor of the Collateral
Agent, substantially in the form of Exhibit C to the Revolving
Credit Security Agreement, as the same may be amended,
supplemented, amended and restated or otherwise modified from
time to time.
Revolving I Credit Loans is defined in the Revolving Credit
Agreement.
Revolving II Credit Loans is defined in the Revolving Credit
Agreement.
Revolving I Credit Commitment Amount is defined in the
Revolving Credit Agreement.
Revolving II Credit Commitment Amount is defined in the
Revolving Credit Agreement.
S&P means Standard & Poor's Rating Services.
?SEC? means the Securities and Exchange Commission.
Second-Tier Subsidiaries means each of the Subsidiaries of
the First-Tier Holding Companies listed on Item B of Schedule III
hereto and any other direct Subsidiary of any First-Tier Holding
Company from time to time acquired or created in accordance with
clause (c) of Section 7.1.7.
Securities means any limited, general or other partnership
interest, or any stock, shares, voting trust certificates, bonds,
debentures, notes or other equity interests or evidences of
indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or any certificates of interest, shares, or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include
any evidence of the Obligations.
Securities Purchase Agreement means the Purchase Agreement,
dated as of August 16, 1993, among SFC, SFAC and the respective
purchasers of the 1993 Senior Notes, the Subordinated Notes and
the SFAC Debenture Units, as the same may be amended,
supplemented, amended and restated, or otherwise modified from
time to time in accordance with Section 7.2.13.
Security Documents means, collectively, the Revolving Credit
Security Documents and the Term Loan Security Documents.
Senior Secured Leverage Ratio means, at the end of any
Fiscal Quarter, the ratio of
(a) Consolidated Total Senior Secured Debt of the
Borrower and its Subsidiaries outstanding at such time;
to
(b) Consolidated EBITDA of the Borrower and its
Subsidiaries for the period of four consecutive Fiscal
Quarters most recently ended on or prior to such date;
provided that if, during any such period, the Borrower or any of
its Subsidiaries shall have made one or more Acquisitions, the
Senior Secured Leverage Ratio for such period shall be calculated
on a Pro Forma Basis as if each such Acquisition had been made on
the first day of such period.
SFAC means Specialty Foods Acquisition Corporation, a
Delaware corporation, and, as of the date hereof, the owner of
all of the Capital Stock of SFC.
SFAC Common Stock means the common stock, par value $0.01
per share, of SFAC.
SFAC Debenture Units means, collectively, the debenture
units of SFAC sold pursuant to the Securities Purchase Agreement,
each of which originally consisted of one $1,000 principal amount
of SFAC Senior Debentures and 15 shares of SFAC Common Stock.
SFAC New Holdings means SFAC New Holdings, Inc., a Delaware
corporation and, as of the date hereof, the owner of all of the
Capital Stock of the Borrower.
SFAC New Holdings Pledge Agreement means the Pledge
Agreement, dated as of June 11, 1999, executed and delivered by
SFAC New Holdings in favor of the SFAC New Holdings Senior
Debenture Trustee, as the same may be amended, supplemented,
amended and restated, or otherwise modified from time to time in
accordance with Section 7.2.13.
SFAC New Holdings Preferred Stock means the four series of
preferred stock, no par value, of SFAC New Holdings, of which 100
shares of each series are issued and outstanding and owned by SFC
Sub.
SFAC New Holdings Senior Secured Debenture Documents means,
collectively, the SFAC New Holdings Pledge Agreement, the SFAC
New Holdings Senior Debentures and the SFAC New Holdings Senior
Secured Debenture Indenture.
SFAC New Holdings Senior Secured Debenture Indenture means
the Indenture, dated as of June 11, 1999, between the SFAC New
Holdings Senior Secured Debenture Trustee and SFAC New Holdings,
pursuant to which the SFAC New Holdings Senior Secured Debentures
were issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with
Section 7.2.13.
SFAC New Holdings Senior Secured Debenture Trustee means
United States Trust Company of New York in its capacity as
trustee for the holders of the SFAC New Holdings Senior Secured
Debentures under the SFAC New Holdings Senior Secured Debenture
Indenture, and any successor thereto as trustee under the SFAC
New Holdings Senior Secured Debenture Indenture.
SFAC New Holdings Senior Secured Debentures means the 13%
Senior Secured Discount Debentures due 2009 of SFAC New Holdings,
as the same may be amended, supplemented or otherwise modified
from time to time in accordance with Section 7.2.13.
SFAC Pledge Agreement means the Pledge Agreement, dated as
of August 16, 1993, executed and delivered by SFAC in favor of
the SFAC Senior Secured Debenture Trustee, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with Section 7.2.13.
SFAC Securities Purchase Agreement means the Purchase
Agreement, dated as of August 16, 1993, among SFAC and the
Investors, as the same has been or may be amended, supplemented
or otherwise modified from time to time in accordance with
Section 7.2.13.
SFAC Senior Debenture Documents means, collectively, the
SFAC Pledge Agreement, the SFAC Senior Debentures and the SFAC
Senior Debenture Indenture.
SFAC Senior Debenture Indenture means the Indenture, dated
as of August 16, 1993, between the SFAC Senior Debenture Trustee
and SFAC, as amended, pursuant to which the SFAC Senior
Debentures were issued, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with
Section 7.2.13.
SFAC Senior Debenture Trustee means United States Trust
Company of New York in its capacity as trustee for the holders of
the SFAC Senior Debentures under the SFAC Senior Debenture
Indenture, and any successor thereto as trustee under the SFAC
Senior Debenture Indenture.
SFAC Senior Debentures means the 13% Senior Secured
Discount Debentures due 2005 of SFAC, as the same may be amended,
supplemented or otherwise modified from time to time in
accordance with Section 7.2.13.
SFAC Stockholders Agreements means, collectively, (i) the
Stockholders Agreement, dated as of August 16, 1993, among the
Investors and SFAC and, (ii) the Stockholders Agreement, dated as
of August 16, 1993, between SFAC and the holders of the SFAC
Debenture Units, in each case as the same may be amended,
supplemented, amended and restated, or otherwise modified from
time to time.
SFAC Subordinated Debenture Documents means, collectively,
the reference to the SFAC Securities Purchase Agreement and the
SFAC Subordinated Debentures.
SFAC Subordinated Debentures means the 11% Senior
Subordinated Discount Debentures due 2006 of SFAC, as the same
may be amended, supplemented or otherwise modified from time to
time in accordance with Section 7.2.13.
SFC is defined in the second recital.
SFC New Holdings Guaranty is defined in the Revolving Credit
Agreement.
SFC Sub means SFC Sub, Inc., a Delaware corporation
(formerly known as ?MCC-DSD Holdings, Inc.), and a direct
Subsidiary of SFC.
SFC Sub Senior Subordinated Debenture Documents means,
collectively, the SFC Sub Senior Subordinated Debentures and the
SFC Sub Senior Subordinated Debenture Indenture.
SFC Sub Senior Subordinated Debenture Indenture means the
Indenture, dated as of June 11, 1999, between the SFC Sub Senior
Subordinated Debenture Trustee and SFC Sub, pursuant to which the
SFC Sub Senior Subordinated Debentures were issued, as the same
may be amended, supplemented or otherwise modified from time to
time in accordance with Section 7.2.13.
SFC Sub Senior Subordinated Debenture Trustee means United
States Trust Company of New York in its capacity as trustee for
the holders of the SFC Sub Senior Subordinated Debentures under
the SFC Sub Senior Subordinated Debenture Indenture, and any
successor thereto as trustee under the SFC Sub Senior
Subordinated Debenture Indenture.
SFC Sub Senior Subordinated Debentures means the 11% Senior
Subordinated Discount Debentures due 2009 of SFC Sub, as the same
may be amended, supplemented or otherwise modified from time to
time in accordance with Section 7.2.13.
Sold Receivables means, collectively, the Receivables and
the other Related Property of each Subsidiary from time to time
party to the Receivables Sale Agreement.
Solvent means, with respect to any Person and its
Subsidiaries on a particular date, that on such date (a) the fair
value of the property of such Person and its Subsidiaries on a
consolidated basis is greater than the total amount of
liabilities, including contingent liabilities, of such Person and
its Subsidiaries on a consolidated basis, (b) the present fair
salable value of the assets of such Person and its Subsidiaries
on a consolidated basis is not less than the amount that will be
required to pay the probable liability of such Person and its
Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (c) such Person does not intend to, and
does not believe that it or its Subsidiaries will, incur debts or
liabilities beyond the ability of such Person and its
Subsidiaries to pay as such debts and liabilities mature, and
(d) such Person and its Subsidiaries on a consolidated basis is
not engaged in business or a transaction, and such Person and its
Subsidiaries on a consolidated basis is not about to engage in
business or a transaction, for which the property of such Person
and its Subsidiaries on a consolidated basis would constitute an
unreasonably small capital. The amount of Guarantee Obligations
at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability. For
purposes of this definition, (i) fair value means the amount at
which the aggregate assets of any entity would change hands
between a willing buyer and a willing seller, within a
commercially reasonable period of time, each having reasonable
knowledge of the relevant facts, neither being under any
compulsion to act, with equity to both and (ii) present fair
saleable value means the aggregate amount that may be realized by
an independent willing seller from an independent willing buyer
if an entity's assets are sold as an entity with reasonable
promptness in an arms-length transaction under present conditions
for the sale of assets as an entity of the business comprising
such entity.
Special Purpose Subsidiary means the special purpose,
bankruptcy-remote Subsidiary of the Borrower that, from time to
time upon receipt thereof, deposits into the Asset Sale Proceeds
Account all Asset Sale Proceeds and other cash contributed by the
Parent or any of its Subsidiaries.
Stated Maturity Date means, in the case of all Term Loans,
January 31, 2001 (or if such day is not a Business Day, the first
Business Day following such day).
Subordinated Note Documents means, collectively, the
Securities Purchase Agreement, the Subordinated Notes and the
Subordinated Note Indenture.
Subordinated Note Indenture means the Indenture, dated as of
August 16, 1993, between the Subordinated Note Indenture Trustee
and SFC pursuant to which the Subordinated Notes were issued, as
the same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 7.2.13.
Subordinated Note Indenture Trustee means United States
Trust Company of New York in its capacity as trustee for the
holders of the Subordinated Notes under the Subordinated Note
Indenture, and any successor thereto as trustee under the
Subordinated Note Indenture.
Subordinated Notes means the 11-1/4% Series B Senior
Subordinated Notes due 2003 of SFC, as the same may be amended,
supplemented or otherwise modified from time to time in
accordance with Section 7.2.13.
Subsidiary means, with respect to any Person, any
corporation, partnership or other business entity of which more
than 50% of the outstanding capital stock (or other ownership
interest) having ordinary voting power to elect a majority of the
board of directors, managers or other voting members of the
governing body of such entity (irrespective of whether at the
time capital stock (or other ownership interest) of any other
class or classes of such entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly
or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. Unless the context otherwise
specifically requires, the term Subsidiary shall be a reference
to a Subsidiary of the Borrower.
Subsidiary Guarantor means any Subsidiary of the Borrower
(other than Inactive Subsidiaries and the Receivables Subsidiary)
which, at the time of determination, is a guarantor under the
Subsidiary Guaranty.
Subsidiary Guaranty is defined in the Revolving Credit
Agreement.
Subsidiary Pledge Agreement is defined in the Revolving
Credit Agreement.
Subsidiary Pledgor means each Subsidiary of the Borrower
which owns any Capital Stock of any other Subsidiary of the
Borrower (other than the Capital Stock of a Foreign Subsidiary or
Trocano) or other Person.
Subsidiary Security Agreement is defined in the Revolving
Credit Agreement.
Syndication Agent is defined in the preamble.
Tax Sharing Agreements means, collectively, (i) the Tax
Sharing Agreement, dated as of August 16, 1993, among SFAC and
SFC, as the same may be amended, supplemented, amended and
restated, or otherwise modified from time to time in accordance
with Section 7.2.13, and (ii) the Tax Sharing Agreement, dated as
of August 16, 1993, among SFAC, SFC and its Subsidiaries, as the
same may be amended, supplemented, amended and restated, or
otherwise modified from time to time in accordance with Section
7.2.13.
Taxes means any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by (i) the United
States or any taxing authority or political subdivision thereof
or (ii) any other jurisdiction as a result of a connection
between the Borrower and such taxing jurisdiction, and in each
case any interest, additions to tax, penalties or additional
amounts payable with respect thereto.
Term Loan Commitment Amount means $168,211,259.00.
Term Loan Commitment Termination Date means the earliest of
(a) March 16, 1998,
(b) the Closing Date (immediately after the making of
the Term Loans on such date), and
(c) the date on which any Term Loan Commitment
Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c),
the commitment of any Term Loan Lender to make a Term Loan shall
terminate automatically and without any further action.
Term Loan Commitment Termination Event means
(a) the occurrence of any Event of Default described
in clauses (a) through (d) of Section 8.1.9 with respect to
the Borrower; or
(b) the occurrence and continuance of any other
Event of Default and either
(i) the declaration of the Term Loans to be due
and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Term
Loan Lenders, to the Borrower that the commitments of
the Term Loan Lenders to make a Term Loan have been
terminated.
Term Loan Documents means this Agreement, the Term Notes,
each Rate Protection Agreement under which the counterparty to
such agreement is (or at the time such Rate Protection Agreement
was entered into, was) a Term Loan Lender or an Affiliate of a
Term Loan Lender relating to Hedging Obligations of the Borrower
or any of its Subsidiaries, the SFAC Agreement and the Term Loan
Security Documents and each other agreement, document or
instrument delivered in connection with this Agreement or any
other Term Loan Document, whether or not specifically mentioned
herein or therein.
Term Loan Lenders is defined in the preamble.
Term Loan Obligations means all obligations (monetary or
otherwise) of the Borrower and each other Obligor arising under
or in connection with this Agreement, the Term Notes, any Rate
Protection Agreement, each other Term Loan Document or any other
document made, delivered or given in connection therewith.
Term Loan Percentage means, relative to any Term Loan
Lender, the applicable percentage relating to the Term Loans, as
set forth in Schedule II hereto or set forth in the Lender
Assignment Agreement, as such percentage may be adjusted from
time to time pursuant to Lender Assignment Agreement(s) executed
by such Term Loan Lender and its Assignee Term Loan Lender(s) and
delivered pursuant to Section 10.11.
Term Loan Security Documents means, collectively, the
Borrower Pledge Agreement, the Borrower Security Agreement, each
Mortgage (if any), each Concentration Account Agreement, the
Collateral Account Agreement and, from and after the execution
and delivery thereof, all other security documents hereafter
delivered to the Agents and the Collateral Agent granting a Lien
on any asset or assets of any Person to secure the Term Loan
Obligations or to secure any guarantee of the Term Loan
Obligations.
Term Loans means, collectively, the Existing Term Loans
outstanding as Term Loans under this Agreement.
Term Note means a promissory note of the Borrower payable to
the order of any Term Loan Lender, in the form of Exhibit A
hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Term Loan Lender resulting
from the outstanding Term Loans, and also means all other
promissory notes accepted from time to time in substitution
therefor or renewal thereof.
Trocano means A. Trocano Construction, Inc., a California
corporation.
type means, relative to any Loan, the portion thereof, if
any, being maintained as a Base Rate Loan or a LIBO Rate Loan.
?U.C.C.? means the Uniform Commercial Code as from time to
time in effect in the State of New York.
United States or U.S. means the United States of America,
its fifty states and the District of Columbia.
U.S. Person means any Person that is a United States person
within the meaning of Section 7701(a)(30) of the Code (or any
applicable successor provision).
U.S. Subsidiary means any Subsidiary of the Borrower that
is incorporated or organized in order or under the laws of the
United States or any state thereof.
Voting Stock means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote
for the election of directors, managers or other voting members
of the governing body of such Person.
Welfare Plan means a welfare plan, as such term is defined
in section 3(1) of ERISA.
wholly-owned means, with respect to any direct or indirect
Subsidiary, any Subsidiary all of the outstanding common stock
(or similar equity interest) of which (other than any director's
qualifying shares or investments by foreign nationals mandated by
applicable laws) is owned directly or indirectly by the Borrower.
SECTION I.2 Use of Defined Terms. Unless otherwise defined
or the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meanings when used in
the Disclosure Schedule and in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other
communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION I.3 Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to
any Article or Section are references to such Article or Section
of this Agreement or such other Loan Document, as the case may
be, and, unless otherwise specified, references in any Article,
Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION I.4 Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or
in any other Loan Document shall be interpreted, and all
accounting determinations and computations hereunder or
thereunder (including under Sections 7.1.1 and 7.2.5) shall be
made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared, in accordance with,
those generally accepted accounting principles (?GAAP?) applied
in the preparation of the financial statements referred to in
Section 6.5, except that (i) the monthly financial statements
provided pursuant to clause (c) of Section 7.1.1 shall only be
consistent with GAAP in all material respects and shall not be
required to include footnotes and (ii) the quarterly financial
statements provided pursuant to clause (b) of Section 7.1.1 shall
only be required to include footnotes to the extent such
footnotes would be required to be included on a Form 10-Q filed
with the SEC. Unless otherwise expressly provided, all financial
covenants and defined financial terms shall be computed on a
consolidated basis for the Borrower and its Subsidiaries, in each
case without duplication. In the event that any Second-Tier
Subsidiary is merged or consolidated with or into, or all or
substantially all of the assets of any Second-Tier Subsidiary are
transferred to, any other Subsidiary, each reference to such
Second-Tier Subsidiary in this Section 7.1.1 will be replaced by
a reference to another Subsidiary or deleted, as mutually agreed
by the Borrower and the Syndication Agent. The Administrative
Agent shall promptly notify each Lender of any such replacement
or deletion. In the event that a Second-Tier Subsidiary of the
Borrower assumes managerial responsibility for one or more of the
other Second-Tier Subsidiaries of the Borrower, each reference to
a Second-Tier Subsidiary in Section 7.1.1 shall be deemed a
reference to all of such Second-Tier Subsidiaries under such
common managerial control, as mutually agreed to by the Borrower
and the Syndication Agent. The Borrower shall promptly notify
each Lender of any such consolidation of reporting for any
affected Second-Tier Subsidiaries. If any preparation in the
financial statements referred to in Section 7.1.1 hereafter
occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with
similar functions) result in a change in any results, amounts,
calculations, ratios, standards or terms found in this Agreement
or any Loan Document from those which would be derived or be
applicable absent such changes, SFAC New Holdings and the
Borrower may reflect such changes in the financial statements and
certificates required to be delivered pursuant to Section 7.1.1,
but calculations of financial covenants shall be made without
giving effect to any such changes. Upon the request of the
Borrower or any Lender the parties hereto agree to enter into
negotiations in order to amend the financial covenants and other
terms of this Agreement if there occur any changes in GAAP that
have a material effect on the financial statements of the
Borrower and its Subsidiaries, so as to equitably reflect such
changes with the desired result that the criteria for evaluating
the Borrower's and its Subsidiaries' financial condition and such
other terms shall be the same in all material respects after such
changes as if the changes had not been made.
ARTICLE II
CONTINUATION OF EXISTING
TERM LOANS; TERM NOTES
SECTION II.1 Existing Term Loans. In Borrowings occurring
on the Closing Date, each Existing Term Loan Lender made Existing
Term Loans to SFC in the aggregate original principal amount of
$173,750,000, which remain outstanding as of the Restatement
Effective Date in the aggregate principal amount of $168,211,259.
Each of the parties hereto acknowledges and agrees that the
Existing Term Loans shall continue to remain outstanding as Term
Loans for all purposes under this Agreement and the other Loan
Documents. No amounts paid or prepaid with respect to Term Loans
may be reborrowed.
SECTION II.2 [Intentionally Omitted].
SECTION II.3 [Intentionally Omitted].
SECTION II.4 Continuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Administrative
Agent on or before 10:00 a.m., New York City time, on a Business
Day, the Borrower may from time to time irrevocably elect, on not
less than one Business Day's notice in the case of a continuation
of, or a conversion of LIBO Rate Loans into, Base Rate Loans, or
three Business Day's notice in the case of a continuation of LIBO
Rate Loans or a conversion of Base Rate Loans into LIBO Rate
Loans, and in either case not more than five Business Day's
notice, that all, or any portion in an aggregate minimum amount
of $5,000,000 and an integral multiple of $1,000,000, in the case
of LIBO Rate Loans, or an aggregate minimum amount of $1,000,000
and an integral multiple of $500,000, in the case of Base Rate
Loans, be, in the case of Base Rate Loans, converted into LIBO
Rate Loans or be, in the case of LIBO Rate Loans, converted into
Base Rate Loans or continued as LIBO Rate Loans (in the absence
of delivery of a Continuation/Conversion Notice with respect to
any LIBO Rate Loan at least three Business Days (but not more
than five Business Days) before the last day of the then current
Interest Period with respect thereto, such LIBO Rate Loan shall,
on such last day, automatically convert to a Base Rate Loan);
provided, however, that (x) each such conversion or continuation
shall be pro rated among the outstanding Term Loans of all Term
Loan Lenders that have made such Term Loans, and (y) no portion
of the outstanding principal amount of any Term Loans may, upon
the expiration of the applicable Interest Period, be continued
as, or be converted into, LIBO Rate Loans when any Default has
occurred and is continuing.
SECTION II.5 Funding. Each Term Loan Lender may, if it so
elects, fulfill its obligation to make, continue or convert LIBO
Rate Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such
Term Loan Lender) to make or maintain such LIBO Rate Loan;
provided, however, that such LIBO Rate Loan shall nonetheless be
deemed to have been made and to be held by such Term Loan Lender,
and the obligation of the Borrower to repay such LIBO Rate Loan
shall nevertheless be to such Term Loan Lender, which such Term
Loan Lender may credit to the account of such foreign branch,
Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or
4.4, it shall be conclusively assumed that each Term Loan Lender
elected to fund all LIBO Rate Loans by purchasing Dollar deposits
in its LIBOR Office's interbank eurodollar market.
Notwithstanding anything herein to the contrary, each Term Loan
Lender, upon the occurrence of any event giving rise to the
operation of Section 4.1, 4.2, 4.3, 4.4, 4.5 or 4.6 with respect
to such Term Loan Lender, will use its best efforts to designate
another LIBOR Office for any Term Loans affected by such event,
provided, that such designation is made on such terms that such
Term Loan Lender and its LIBOR Office suffer no economic, legal
or regulatory disadvantage.
SECTION II.6 Register; Term Notes.
(a) Each Term Loan Lender may maintain in accordance
with its usual practice an account or accounts evidencing
the Indebtedness of the Borrower to such Term Loan Lender
resulting from each Term Loan made by such Term Loan Lender,
including the amounts of principal and interest payable and
paid to such Term Loan Lender from time to time hereunder.
In the case of a Term Loan Lender that does not request,
pursuant to clause (b)(ii) below, execution and delivery of
a Term Note evidencing the Term Loans made by such Term Loan
Lender to the Borrower, such account or accounts shall, to
the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and
binding on the Borrower absent manifest error; provided,
however, that the failure of any Term Loan Lender to
maintain such account or accounts shall not limit or
otherwise affect any Term Loan Obligations of the Borrower
or any other Obligor.
(b)(i) The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent,
solely for the purpose of this clause (b), to maintain a
register (the Register) on which the Administrative Agent
will record each Term Loan Lender's Term Loans made by each
Term Loan Lender and each repayment in respect of the
principal amount of the Term Loans of each Term Loan Lender
and annexed to which the Administrative Agent shall retain a
copy of each Lender Assignment Agreement delivered to the
Administrative Agent pursuant to Section 10.11.1. Failure
to make any recordation, or any error in such recordation,
shall not affect the Borrower's obligation in respect of
such Term Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Term Loan Lenders
shall treat each Person in whose name a Term Loan (and as
provided in clause (ii) the Term Note evidencing such Term
Loan, if any) is registered as the owner thereof for all
purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. A Term Loan Lender's Term
Loans may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer
in the Register. Any assignment or transfer of a Term Loan
Lender's Term Loans shall be registered in the Register only
upon delivery to the Administrative Agent of a Lender
Assignment Agreement duly executed by the Assignor thereof.
No assignment or transfer of a Term Loan Lender's Term Loans
shall be effective unless such assignment or transfer shall
have been recorded in the Register by the Administrative
Agent as provided in this Section.
(ii) The Borrower agrees that, upon the request to
the Administrative Agent by any Term Loan Lender, the
Borrower will execute and deliver to such Term Loan Lender,
as applicable, a Term Note evidencing the Term Loans made by
such Term Loan Lender. The Borrower hereby irrevocably
authorizes each Term Loan Lender to make (or cause to be
made) appropriate notations on the grid attached to such
Term Loan Lender's Term Notes (or on any continuation of
such grid), which notations, if made, shall evidence, inter
alia, the date of the outstanding principal amount of, and
the interest rate and Interest Period applicable to the Term
Loans evidenced thereby. Such notations shall, to the
extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and
binding on the Borrower absent manifest error; provided,
however, that the failure of any Term Loan Lender to make
any such notations shall not limit or otherwise affect any
Term Loan Obligations of the Borrower or any other Obligor.
The Term Loans evidenced by any such Term Note and interest
thereon shall at all times (including after assignment
pursuant to Section 10.11.1) be represented by one or more
Term Notes payable to the order of the payee named therein
and its registered assigns. Subject to the provisions of
Section 10.11.1, a Term Note and the obligation evidenced
thereby may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer
of such Term Note and the obligation evidenced thereby in
the Register (and each Term Note shall expressly so
provide). Any assignment or transfer of all or part of an
obligation evidenced by a Term Note shall be registered in
the Register only upon surrender for registration of
assignment or transfer of the Term Note evidencing such
obligation, accompanied by a Lender Assignment Agreement
duly executed by the assignor thereof, and thereupon, if
requested by the assignee, one or more new Term Notes shall
be issued to the designated assignee and the old Term Note
shall be returned by the Administrative Agent to the
Borrower marked exchanged. No assignment of a Term Note and
the obligation evidenced thereby shall be effective unless
it shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1 Repayments and Prepayments; Application.
SECTION III.1.1 Repayments and Prepayments. The Borrower
shall repay in full the unpaid principal amount of each Term Loan
upon the Stated Maturity Date therefor. Prior thereto, payments
and prepayments of Term Loans shall or may be made as set forth
below.
(a) From time to time on any Business Day, the
Borrower may make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of any Term Loans,
provided, however, that
(i)(x) any such voluntary prepayment of Term
Loans shall be made pro rata between Term Loans and
Revolving II Credit Loans of the same type and, if
applicable, having the same Interest Period of all
Term Loan Lenders and Revolving Credit Lenders that
have made such Term Loans and Revolving II Credit
Loans and (y) any such prepayment of Term Loans shall
be made pro rata among the Term Loans of the same
type and, if applicable, having the same Interest
Period of all Term Loan Lenders;
(ii) all such voluntary prepayments shall require
at least three Business Day's notice, but no more
than five Business Day's notice, in writing to the
Administrative Agent; and
(iii) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an
aggregate minimum amount of $5,000,000 and an
integral multiple of $1,000,000 and, in the case of
Base Rate Loans, in an aggregate minimum amount of
$1,000,000 and an integral multiple of $500,000, or
in the aggregate principal amount of all Term Loans
and Revolving II Credit Loans of the type then
outstanding.
(b) Not later than three Business Days following the
receipt by SFAC or any direct or indirect Subsidiary of SFAC
of Net Cash Proceeds from either (i) the issuance or sale of
any of its Capital Stock (or other equity interests) (other
than pursuant to an Excluded Equity Issuance, as defined
below) or (ii) the incurrence of any Indebtedness (other
than Excluded Indebtedness, as defined below, or
Indebtedness permitted to be incurred pursuant to Section
7.2.2), as the case may be, the Borrower shall make a
mandatory prepayment of the Term Loans and Revolving II
Credit Loans in an amount equal to 100% of such Net Cash
Proceeds of such issuance or sale of Capital Stock (or other
equity interests) or such incurrence of Indebtedness, as the
case may be, to be applied as set forth in Section 3.1.2.
For purposes of this clause (b), Excluded Equity
Issuance means (i) any issuance by SFAC of any of its
Capital Stock that does not constitute a Change in Control
to the extent that such issuance is made to the then current
shareholders of SFAC (and their respective Affiliates, other
than Persons becoming Affiliates because of such issuance of
Capital Stock of SFAC) and the Net Cash Proceeds of such
issuance are contributed by SFAC to the Borrower, (ii) any
issuance by SFAC New Holdings of any of its Capital Stock to
holders of the SFAC New Holdings Senior Secured Debentures
in connection with the Restructuring, (iii) any issuance by
SFAC New Holdings of shares of its SFAC New Holdings
Preferred Stock in accordance with the terms of the SFAC New
Holdings Senior Secured Debenture Indenture, (iv) any
issuance by the Borrower of shares of its New Holdings
Permitted Preferred Stock in connection with a rights
offering in accordance with the terms of the SFAC New
Holdings Senior Secured Debenture Indenture, (v) any
issuance by any of the Subsidiaries of the Borrower of
additional shares of its common stock to the Borrower or any
Subsidiary of the Borrower if such additional shares are
immediately pledged by such holder to the Collateral Agent
pursuant to the Borrower Pledge Agreement or Subsidiary
Pledge Agreement and (vi) any issuance by SFAC or SFAC New
Holdings to any Management of SFAC, SFAC New Holdings, the
Borrower and their Subsidiaries of common stock of SFAC or
SFAC New Holdings, or any option or other right to purchase
common stock of SFAC or SFAC New Holdings, pursuant to
management incentive programs approved by the Board of
Directors of SFAC or SFAC New Holdings from time to time,
provided that all such common stock so issued, when
aggregated with all such common stock issuable upon the
exercise of such options or other rights (whether or not
presently exercisable by the holders thereof), shall not
exceed 15% of the common stock of SFAC or SFAC New Holdings
(on a fully diluted basis); and Excluded Indebtedness means
(i) any Indebtedness incurred by SFC Sub the proceeds of
which are paid as a cash dividend on or after February 15,
2000 to SFC for the purpose of allowing SFC to pay cash
dividends to SFAC in an aggregate amount not to exceed
$12,000,000 so long as such dividends to SFC are only used
for the payment of obligations in respect of the SFAC Senior
Debentures which are outstanding on the Restatement
Effective Date or (ii) any loans advanced to SFAC by any
existing stockholder of SFAC or any member of the Management
of the Borrower or SFAC, or any Affiliate thereof.
(c) Not later than three Business Days following the
receipt by SFAC or any direct or indirect Subsidiary of SFAC
of any Net Cash Proceeds constituting Asset Sale Proceeds in
excess of $250,000, other than as set forth in the
penultimate paragraph of Section 7.2.12 in respect of any
Asset Sale Proceeds resulting from any sale or other
disposition of any of the assets or Capital Stock of Metz,
Mothers, Archway or any of their respective Subsidiaries,
the Borrower shall deliver to the Administrative Agent a
calculation of the amount of such Asset Sale Proceeds and
make a mandatory prepayment of the Term Loans and Revolving
II Credit Loans in an amount equal to 100% of the excess of
(i) all such Asset Sale Proceeds received, less (ii)
$15,000,000, such excess to be applied as set forth in
Section 3.1.2; provided, however, that no mandatory
prepayment on account of Asset Sale Proceeds shall be
required under this clause (c) if the Borrower informs the
Agents in writing within one Business Day following the
receipt of such Asset Sale Proceeds of SFAC's or such
Subsidiary's good faith intention to apply such Asset Sale
Proceeds (A) to the replacement of the sold, conveyed or
transferred assets or property, (B) to the making of
Investments or one or more Acquisitions which are permitted
pursuant to clause (h) of Section 7.2.6 or (C) to the making
of Capital Expenditures which are permitted pursuant to
Section 7.2.8 or other Investments in long term assets of
the Borrower or the Operating Subsidiaries and, in each
case, such Asset Sale Proceeds are applied as provided in
such clauses (A), (B) or (C) above within 360 days following
the receipt of such Asset Sale Proceeds, with the amount of
such Asset Sale Proceeds unused after such 360-day period
being applied to the Term Loans and Revolving II Credit
Loans pursuant to Section 3.1.2. The Borrower shall, and
shall cause SFAC or any direct or indirect any Subsidiary of
SFAC to, immediately contribute or cause to be contributed
all Net Cash Proceeds constituting Asset Sale Proceeds that
are or may be required to be used to prepay the Term Loans
and Revolving II Credit Loans pursuant to this clause (c) to
the Special Purpose Subsidiary for deposit into the Asset
Sale Proceeds Account.
(d) Not later than three Business Days following the
receipt by SFAC or any direct or indirect Subsidiary of SFAC
of any Asset Sale Proceeds resulting from any sale or other
disposition of any of the assets or Capital Stock of Metz,
Mothers, Archway or any of their respective Subsidiaries
pursuant to the penultimate paragraph of Section 7.2.12, the
Borrower shall make a mandatory prepayment of the Term Loans
and Revolving Credit Loans in an amount equal to the
applicable percentage of such Asset Sale Proceeds as
provided in Section 7.2.12, to be applied as provided in
clause (b) of Section 3.1.2 or as required by Section 3.1 of
the Revolving Credit Agreement.
(e) Within 60 days following the receipt by the
Borrower or any of its Subsidiaries of any Casualty Proceeds
in excess of $1,000,000, the Borrower shall make a mandatory
prepayment of the Term Loans and Revolving II Credit Loans
in an amount equal to 100% of such Casualty Proceeds, to be
applied as set forth in Section 3.1.2; provided, that no
mandatory prepayment on account of Casualty Proceeds shall
be required under this clause if the Borrower informs the
Agents no later than 60 days following the occurrence of the
Casualty Event resulting in such Casualty Proceeds of its or
its Subsidiary's good faith intention to apply such Casualty
Proceeds to the rebuilding or replacement of the damaged,
destroyed or condemned assets or property and in fact uses
such Casualty Proceeds to rebuild or replace the damaged,
destroyed or condemned assets or property within 360 days
following the receipt of such Casualty Proceeds, with the
amount of such Casualty Proceeds unused after such 360 day
period being applied to the Term Loans and Revolving II
Credit Loans as set forth in Section 3.1.2.
(f) On the Stated Maturity Date and on each
Quarterly Payment Date occurring during any period set forth
below, the Borrower shall make a scheduled repayment of the
aggregate outstanding principal amount, if any, of all
Term Loans in an amount equal to the amount set forth below
opposite the Stated Maturity Date or such Quarterly Payment
Date, as applicable:
||
Period Amount of Required
Quarterly Principal
Payment
July 31, 1999 through (and
including)
October 31, 2000 $434,375
Stated Maturity Date $165,605,009
(g) Immediately upon any acceleration of the Stated
Maturity Date of any Term Loans pursuant to Section 8.2 or
Section 8.3, the Borrower shall repay in full the aggregate
outstanding principal amount of all Term Loans.
Each prepayment of any Term Loans and Revolving II Credit Loans
made pursuant to this Section shall be without premium or
penalty, except as may be required by clause (a)(iv) of Section
3.1.1 or Section 4.4.
SECTION III.1.2 Application. Amounts prepaid shall be
applied as set forth in this Section 3.1.2.
(a) Subject to clause (b) below, each prepayment or
repayment of the principal of Term Loans and Revolving II
Credit Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount
thereof being maintained as Base Rate Loans, and second, to
the principal amount thereof being maintained as LIBO Rate
Loans; provided, that mandatory prepayments of LIBO Rate
Loans made pursuant to clauses (b), (c), (d), and (e) of
Section 3.1.1, if not made on the last day of the Interest
Period with respect thereto, shall, at the Borrower's
option, so long as no Default has occurred and is
continuing, be prepaid subject to the provisions of Section
4.4, or the amount required to be applied to the prepayment
of LIBO Rate Loans (after application to any Base Rate
Loans) shall be deposited with the Administrative Agent or
another Lender as cash collateral for such Term Loans and
Revolving II Credit Loans on terms reasonably satisfactory
to the Administrative Agent (or such Lender) and thereafter
shall be applied in the order of the Interest Periods next
ending most closely to the date of receipt of the proceeds
in respect of which such prepayment is required to be made
and on the last day of each such Interest Period (together
with a payment of all interest that is due on the last day
of each such Interest Period pursuant to clause (d) of
Section 3.2.3). After such application, unless an Event of
Default shall have occurred and be continuing, any remaining
interest earned on such cash collateral shall be paid to the
Borrower.
(b) Each voluntary prepayment of Term Loans and
Revolving II Credit Loans and each mandatory prepayment of
Term Loans and Revolving II Credit Loans made pursuant to
clauses (b), (c), (d), and (e) of Section 3.1.1 shall be
applied, to the extent of such prepayment, pro rata to a
prepayment of the outstanding principal amount of all Term
Loans and Revolving II Credit Loans until all such Term
Loans and Revolving II Credit Loans have been paid in full,
and, thereafter, to a reduction of the Revolving II Credit
Commitment Amount, and once all Term Loans and Revolving II
Credit Loans have been repaid in full and the Revolving II
Credit Commitment Amount reduced to zero, all prepayments of
Term Loans and Revolving II Credit Loans made pursuant to
clauses (b), (c), (d) and (e) of Section 3.1.1 shall be
applied to the repayment of any outstanding Revolving I
Credit Loans and to cash collateralize Reimbursement
Obligations in respect of Revolving Credit Letters of
Credit.
(c) With respect to any prepayment of Term Loans and
Revolving II Credit Loans made pursuant to clause (b) of
Section 3.1.1, the Administrative Agent will as soon as is
practicable (but in any event no later than the date on
which the Borrower has provided such prepayment to the
Administrative Agent) provide notice of such prepayment to
each Term Loan Lender and Revolving Credit Lender having
outstanding Revolving II Credit Loans prior to the
distribution of the funds from such prepayment, and each
Term Loan Lender and Revolving Credit Lender having
outstanding Revolving II Credit Loans will have the right to
refuse any such prepayment by giving written notice of such
refusal to the Administrative Agent within three Business
Days after such Term Loan Lender's and Revolving Credit
Lender's receipt of notice from the Administrative Agent of
such prepayment (but in any event no later than one day
prior to the date on which such prepayment is to be made),
and the Borrower's obligation to prepay such Term Loan
Lender's Term Loans and Revolving Credit Lender's Revolving
II Credit Loans shall be discharged with the Administrative
Agent's delivery of such notice to the Borrower and, to the
extent received, the Administrative Agent shall promptly
return to the Borrower any amounts received in respect of
such Term Loan Lender's Term Loans and Revolving Credit
Lender's Revolving II Credit Loans.
SECTION III.2 Interest Provisions. Interest on the
outstanding principal amount of Term Loans shall accrue and be
payable in accordance with this Section 3.2.
SECTION III.2.1 Rates. Pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice,
the Borrower may elect that Term Loans comprising a Borrowing
accrue interest at a rate per annum:
(a) on that portion maintained from time to time as
a Base Rate Loan, equal to the sum of the Alternate Base
Rate from time to time in effect plus the Applicable Term
Loan Margin; and
(b) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Term Loan Margin.
All LIBO Rate Loans shall bear interest from and including
the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest
rate determined as applicable to such LIBO Rate Loan.
SECTION III.2.2 Post-Maturity Rates. Upon the occurrence
and continuance of (i) any Event of Default described in Section
8.1.1 or clauses (a) through (d) of Section 8.1.9 or (ii) any
other Event of Default which shall remain uncured for thirty days
(without giving effect to any grace period therefor), all Term
Loans shall bear, and the Borrower shall pay, but only to the
extent permitted by law, interest (after as well as before
judgment) thereon in arrears at a rate per annum equal to the
rate that would otherwise be applicable to such Term Loans
maintained as Base Rate Loans pursuant to Section 3.2.1 plus 5.0%
on the last day of each calendar month or, if such day is not a
Business Day, the next succeeding Business Day.
SECTION III.2.3 Payment Dates. Interest accrued on each
Term Loan shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) subject to the provisions of clause (a) of
Section 3.1.2, on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Term Loan
on the principal amount so paid or prepaid;
(c) with respect to Base Rate Loans, on each
Quarterly Payment Date occurring after the Closing Date;
(d) with respect to LIBO Rate Loans, on the last day
of each applicable Interest Period (and, if such Interest
Period shall exceed three months, on the third-month
anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted
into LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to clause (c), on the
next Quarterly Payment Date; and
(f) on that portion of any Term Loans the Stated
Maturity Date of which is accelerated pursuant to Section
8.2 or Section 8.3, immediately upon such acceleration.
Interest accrued on Term Loans or other monetary Obligations
arising under this Agreement or any other Term Loan Document
after the date such amount is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise) shall be
payable upon demand.
SECTION III.3 Fees. The Borrower agrees to pay the fees
set forth in this Section 3.3. All such fees shall be non-
refundable.
SECTION III.3.1 Administration Fee. The Borrower agrees to
pay to the Administrative Agent, for its own account, the annual
administration fees referred to in the letter agreement, dated
March 13, 1998, among SFC, the Revolving Credit Borrowers and the
Administrative Agent with respect thereto.
SECTION III.3.2 Deferred Fees. Subject to the occurrence
of the Amendment No. 2 Effective Date, the Borrower agrees to pay
to the Administrative Agent, for the account of each Term Loan
Lender, deferred fees in the following amounts: (i) .25% of the
principal amount of such Term Loan Lender's Term Loans
outstanding on February 1, 2000, (ii) 1.00% of the principal
amount of such Term Loan Lender's Term Loans outstanding on
August 1, 2000 and (iii) 1.00% of the principal amount of such
Term Loan Lender's Term Loans outstanding on January 30, 2001.
SECTION III.3.3 Amendment Fee. The Borrower agrees to pay
to the Administrative Agent, for the account of each Term Loan
Lender, upon the later to occur of the Amendment No. 2 Effective
Date and the Restatement Effective Date, an amendment fee in the
amount of .50% of the principal amount of such Term Loan Lender's
Term Loans.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION IV.1 LIBO Rate Lending Unlawful. If any Term Loan
Lender shall determine (which determination shall, upon notice
thereof to the Borrower and the Term Loan Lenders, be conclusive
and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law, in each case after
the date upon which such Term Loan Lender shall have become a
Term Loan Lender hereunder, makes it unlawful, or any central
bank or other Regulatory Authority asserts, after such date, that
it is unlawful, for such Term Loan Lender to make, continue or
maintain any Term Loan as, or to convert any Term Loan into, a
LIBO Rate Loan, the obligations of such Term Loan Lender to make,
continue, maintain or convert any such LIBO Rate Loan shall, upon
such determination, forthwith be suspended until such Term Loan
Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and all
outstanding LIBO Rate Loans of such Term Loan Lender shall
automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if
required by such law or assertion. Each Term Loan Lender agrees
to promptly give notice to the Administrative Agent and the
Borrower when the circumstances causing such suspension cease to
exist.
SECTION IV.2 Deposits Unavailable. If the Administrative
Agent shall have determined that
(a) with respect to any proposed LIBO Rate Loan,
Dollar deposits in the relevant amount and for the relevant
Interest Period are not generally available in the relevant
market; or
(b) by reason of circumstances affecting the
relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO
Rate Loans for the relevant Interest Period;
then, upon notice from the Administrative Agent to the Borrower
and the Term Loan Lenders, the obligations of all Term Loan
Lenders under Section 2.3 and Section 2.4 to make or continue
after the relevant Interest Period any Term Loans as, or to
convert any Term Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify the
Borrower and the Term Loan Lenders that the circumstances causing
such suspension no longer exist.
SECTION IV.3 Increased LIBO Rate Loan Costs, etc. The
Borrower agrees to reimburse each Term Loan Lender for any
increase in the cost to such Term Loan Lender of, or any
reduction in the amount of any sum receivable by such Term Loan
Lender in respect of, making, continuing or maintaining (or of
its obligation to make, continue or maintain) any Term Loans as,
or of converting (or of its obligation to convert) any Term Loans
into, LIBO Rate Loans (except for any increase taken into account
in determining the LIBOR Reserve Percentage and except for
increased capital costs and Taxes which are governed by Sections
4.5 and 4.6, respectively) that arise in connection with any
change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in after the date
hereof of, any law or regulation, directive, guideline, decision
or request (whether or not having the force of law) of any court,
central bank, regulator or other Regulatory Authority. Such Term
Loan Lender shall use all commercially reasonable efforts to
promptly notify the Administrative Agent and the Borrower in
writing within 90 days of the occurrence of any such event (which
notice shall in any event be delivered no later than 120 days
after the audited annual financial statements are reported for
the fiscal year of such Term Loan Lender ended following the
payment and performance in full of all Obligations, the
termination of all Commitments and the expiration of all
Revolving Credit Letters of Credit), such notice to state, in
reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Term Loan Lender for such
increased cost or reduced amount. Such additional amounts shall
be payable by the Borrower directly to such Term Loan Lender
within five days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION IV.4 Funding Losses. In the event any Term Loan
Lender shall incur any loss or expense (including any loss or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Term Loan Lender to
make, continue or maintain any portion of the principal amount of
any Term Loan as, or to convert any portion of the principal
amount of any Term Loan into, a LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than
the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
(b) any Term Loans not being made as LIBO Rate Loans
in accordance with the Borrowing Request therefor; or
(c) any Term Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Term Loan Lender to the
Borrower (with a copy to the Administrative Agent) (which notice
such Term Loan Lender shall use all commercially reasonable
efforts to deliver to the Borrower within 90 days of the
occurrence of any such event and which notice shall in any event
be delivered no later than 120 days after the annual audited
financial statements are reported for the fiscal year of such
Term Loan Lender ended following the payment and performance in
full of all Obligations, the termination of all Commitments and
the expiration of all Revolving Credit Letters of Credit), the
Borrower shall, within five days of its receipt thereof, pay
directly to such Term Loan Lender such amount as will (in the
reasonable determination of such Term Loan Lender) reimburse such
Term Loan Lender for such loss or expense. Such written notice
(which shall include calculations in reasonable detail) shall, in
the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION IV.5 Increased Capital Costs. If any change in, or
the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having
the force of law) of any court, central bank, regulator or other
Regulatory Authority, in each case occurring after the applicable
Term Loan Lender becomes a Term Loan Lender hereunder, affects or
would affect the amount of capital required or expected to be
maintained by any Term Loan Lender or any Person controlling such
Term Loan Lender, and such Term Loan Lender determines (in good
faith but in its sole and absolute discretion) that the rate of
return on its or such controlling Person's capital as a
consequence of the Term Loans made by such Term Loan Lender is
reduced to a level below that which such Term Loan Lender or such
controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from
time to time by such Term Loan Lender to the Borrower (which
notice such Term Loan Lender shall use all commercially
reasonable efforts to deliver to the Borrower within 90 days of
the occurrence of any such event and which notice shall in any
event be delivered no later than 120 days after the annual
audited financial statements are reported for the fiscal year of
such Term Loan Lender ended following the payment and performance
in full of all Obligations, the termination of all Commitments
and the expiration of all Revolving Credit Letters of Credit),
the Borrower shall immediately pay directly to such Term Loan
Lender additional amounts sufficient to compensate such Term Loan
Lender or such controlling Person for such reduction in rate of
return. A statement of such Term Loan Lender as to any such
additional amount or amounts (including calculations thereof in
reasonable detail) shall be sent by such Term Loan Lender to the
Borrower and shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such
amount, such Term Loan Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION IV.6 Taxes. (a) All payments by the Borrower of
principal of, and interest on, or other amounts in respect of,
the Term Loans and all other amounts payable hereunder (including
fees) and the Term Notes shall be made free and clear of and
without deduction for any Taxes, except to the extent that any
such withholdings or deductions are required by applicable law,
rule or regulations. In that event, the Borrower will
(i) pay directly to the relevant authority the
full amount of Taxes required to be so withheld or
deducted;
(ii) promptly forward to the Administrative Agent
an official receipt or other documentation reasonably
satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(iii) if such Taxes are Covered Taxes, pay to the
Administrative Agent for the account of the Term Loan
Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually
received by each Term Loan Lender will equal the full
amount such Term Loan Lender would have received had
no such withholding or deduction been required.
In addition, if the Borrower, any Term Loan Lender, or the
Administrative Agent is required by law at any time to pay
any Covered Tax on, or calculated by reference to, any sum
received or receivable by or on behalf of any Term Loan
Lender or the Administrative Agent under this Agreement or
any Notes, then (i) with respect solely to any such
requirement with respect to a Term Loan Lender or the
Administrative Agent, any applicable Term Loan Lender or the
Administrative Agent shall, as promptly as practicable
following such Person having notice of such requirement,
give notice to the Borrower of such requirement and (ii)
the Borrower shall, promptly after having received such
notice, pay or procure the payment of such Covered Tax. If
the Borrower pays any such Covered Taxes as required by the
immediately preceding sentence, then the Borrower will
promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to
the Administrative Agent evidencing such payment of Covered
Taxes to the relevant taxing authority. Without prejudice
to the preceding provisions, if the Administrative Agent or
any Term Loan Lender is required by law to make any payment
on account of Covered Taxes on or in relation to any sum
received under this Agreement or any Note, or any liability
for Covered Taxes in respect of any such sum is imposed,
levied or assessed against any Term Loan Lender or the
Administrative Agent, the Borrower will indemnify each such
Term Loan Lender and the Administrative Agent for the full
amount of Covered Taxes paid by such Term Loan Lender or the
Administrative Agent (as the case may be), whether or not
such Covered Taxes were correctly or legally asserted. Such
indemnification shall be made within 30 days of the demand
of the Term Loan Lender or the Administrative Agent
therefor. In addition, if the Borrower fails to remit to
the Administrative Agent, for the account of the respective
Term Loan Lenders, the required receipts or other required
documentary evidence of its payment of any Taxes, the
Borrower shall indemnify the Administrative Agent and the
Term Loan Lenders for any incremental Taxes, interest or
penalties that may become payable by the Administrative
Agent and any Term Loan Lender as a result of any such
failure. For purposes of this Section 4.6, the transfer by
the Administrative Agent or any Term Loan Lender to or for
the account of any Term Loan Lender of any sum received from
the Borrower on account of amounts required to be paid by
the Borrower hereunder in respect of Covered Taxes imposed
with respect to the recipient shall be deemed a payment by
the Borrower of such amounts.
(b) Each Term Loan Lender that is an original
signatory to this Agreement and the Administrative Agent
hereby severally (but not jointly) represent that, under
applicable law and treaties in effect as of the date of the
Term Loans, no United States federal income taxes will be
required to be withheld by the Administrative Agent or the
Borrower with respect to any payments to be made to such
Person in respect of this Agreement. Each Term Loan Lender
that is an original signatory hereto (and each Person which
becomes a Term Loan Lender by assignment, transfer or
participation pursuant to Section 10.11 hereof) and the
Administrative Agent (and each Person that becomes the
Administrative Agent by appointment pursuant to Section 9.4
hereof), agrees severally (but not jointly) that, on or
prior to the date of the Term Loans (or on or prior to the
date of such assignment, transfer or appointment, as the
case may be) it will in each case deliver to the Borrower
and the Administrative Agent the following:
(i) in the case of a Person other than a Non-U.S.
Term Loan Lender, two copies of a statement
certifying that such Person is a U.S. Person, which
statement shall contain the address, if any, of such
Person's office or place of business in the United
States, and shall be signed by an authorized officer
of such Person, together with two duly completed
copies of United States Internal Revenue Service Form
W-9 (or applicable successor form) (unless it
establishes to the reasonable satisfaction of the
Administrative Agent and the Borrower that it is
otherwise eligible for an exemption from backup
withholding tax or other applicable withholding tax),
or
(ii) in the case of a Non-U.S. Term Loan Lender,
either (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or
applicable successor form) certifying in each case
that such Person is entitled to receive payments
under this Agreement and the Notes payable to it
without deduction or withholding of any United States
federal income taxes and two duly completed copies of
United States Internal Revenue Service Form W-8 or
Form W-9 (or applicable successor form) or (B) in the
case of an assignee Term Loan Lender that is not a
bank within the meaning of Section 881(c)(3)(A) of
the Code and that does not comply with the
requirements of clause (i) hereof, then a statement
in the form of statement in substantially the form of
Exhibit M hereto (an Exemption Certificate) to the
effect that such assignee Term Loan Lender is
eligible for a complete exemption from withholding of
United States withholding tax under Section 871(h) or
Section 881(c) of the Code and two duly completed and
signed original copies of Internal Revenue Service
Form W-8.
Each Person who delivers to the Borrower and the
Administrative Agent a Form W-8, W-9, 1001 or 4224, or
applicable successor form, pursuant to this clause, further
undertakes to deliver to the Borrower and the Administrative
Agent two further copies of said Form W-8, W-9, 1001, 4224,
or applicable successor form, or other 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, and
such extensions or renewals thereof as may reasonably be
requested by the Borrower, certifying that such Person is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, unless in any such case any change in law, rule,
regulation, treaty or directive, or in the interpretation or
application thereof (a Law Change), has occurred prior to
the date on which any such delivery would otherwise be
required, which Law Change renders any such form
inapplicable or which would prevent such Person from duly
completing and delivering any such form with respect to it.
The Borrower shall not be required to indemnify any
Non-U.S. Term Loan Lender, or pay any additional amounts to
any Non-U.S. Term Loan Lender, in respect of United States
Federal withholding tax pursuant to clause (a) above to the
extent that the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S.
Term Loan Lender to comply with this clause (b); provided,
however, that this clause (b) shall not limit the indemnity
obligations of the Borrower to the Administrative Agent.
Any Term Loan Lender claiming any indemnity payment
or additional amounts payable pursuant to this Section 4.6
shall file any certificate or document reasonably requested
in writing by the Borrower if the making of such a filing
would avoid the need for or reduce the amount of any such
indemnity payment or additional amount which may thereafter
accrue and would not, in the determination of such Term Loan
Lender, be otherwise disadvantageous to such Term Loan
Lender.
(c) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Term
Notes and all other amounts payable hereunder.
SECTION IV.7 Payments, Computations, etc. Unless otherwise
expressly provided, all payments by the Borrower pursuant to this
Agreement, the Term Notes, or any other Term Loan Document shall
be made by the Borrower to the Administrative Agent for the pro
rata account of the Term Loan Lenders entitled to receive such
payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, New York City time, on
the date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to
time by notice to the Borrower. Funds received after that time
shall be deemed to have been received by the Administrative Agent
on the next succeeding Business Day. The Administrative Agent
shall promptly remit on the day it has received (or is deemed to
have received under the preceding sentence) in same day funds to
each Term Loan Lender its share, if any, of such payments
received by the Administrative Agent for the account of such Term
Loan Lender. All interest (including interest on LIBO Rate
Loans) and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee
is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan (calculated at other than the
Federal Funds Rate), 365 days or, if appropriate, 366 days).
Whenever any payment to be made shall otherwise be due on a day
which is not a Business Day, such payment shall (except as
otherwise required by clause (c) of the definition of the term
Interest Period) be made on the next succeeding Business Day and
such extension of time shall be included in computing interest
and fees, if any, in connection with such payment.
SECTION IV.8 Sharing of Payments. If any Term Loan Lender
shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of
any Loan (other than pursuant to the terms of Section 4.3, 4.4,
4.5 or 4.6) in excess of its pro rata share of payments then or
therewith obtained by all Term Loan Lenders, such Term Loan
Lender shall purchase from the other Term Loan Lenders such
participations in Borrowings made by them as shall be necessary
to cause such purchasing Term Loan Lender to share the excess
payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Term
Loan Lender, the purchase shall be rescinded and each Term Loan
Lender which has sold a participation to the purchasing Term Loan
Lender shall repay to the purchasing Term Loan Lender the
purchase price to the ratable extent of such recovery together
with an amount equal to such selling Term Loan Lender's ratable
share (according to the proportion of
(a) the amount of such selling Term Loan Lender's
required repayment to the purchasing Term Loan Lender
to
(b) total amount so recovered from the purchasing
Term Loan Lender)
of any interest or other amount paid or payable by the purchasing
Term Loan Lender in respect of the total amount so recovered.
The Borrower agrees that any Term Loan Lender so purchasing a
participation from another Term Loan Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all
its rights of payment (including pursuant to Section 4.9) with
respect to such participation as fully as if such Term Loan
Lender were the direct creditor of the Borrower in the amount of
such participation. If under any applicable bankruptcy,
insolvency or other similar law, any Term Loan Lender receives a
secured claim in lieu of a setoff to which this Section applies,
such Term Loan Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Term Loan Lenders entitled
under this Section to share in the benefits of any recovery on
such secured claim.
SECTION IV.9 Setoff. Each Term Loan Lender shall, upon the
occurrence and during the continuance of any Event of Default
described in clauses (a) through (d) of Section 8.1.9 or, with
the consent of the Required Term Loan Lenders, upon the
occurrence and during the continuance of any other Event of
Default, have the right to appropriate and apply to the payment
of all Term Loan Obligations then due and payable to it (whether
as a result of stated maturity, acceleration or otherwise) and
after giving effect to the operation of Section 4.8, and (as
security for such Term Loan Obligations) the Borrower hereby
grants to each Term Loan Lender a continuing security interest
in, any and all balances, credits, deposits, accounts or moneys
of the Borrower then or thereafter maintained with such Term Loan
Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8.
Each Term Loan Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such setoff and application
made by such Term Loan Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Term Loan Lender
under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or
otherwise) which such Term Loan Lender may have.
SECTION IV.10 Replacement of Term Loan Lenders. Each Term
Loan Lender hereby severally agrees as set forth in this Section:
(a) If any Term Loan Lender (a Subject Lender) makes
demand upon the Borrower for (or if the Borrower is
otherwise required to pay) amounts pursuant to Section 4.3,
4.5 or 4.6, or gives notice pursuant to Section 4.1
requiring a conversion of such Subject Lender's LIBO Rate
Loans to Base Rate Loans, or if such Subject Lender defaults
in its obligation to fund Borrowings hereunder, the Borrower
may, within 90 days of receipt by the Borrower of such
demand or notice (or the occurrence of such other event
causing the Borrower to be required to pay such
compensation), or the occurrence of such default, as the
case may be, give notice (a Replacement Notice) in writing
to the Syndication Agent and such Subject Lender of its
intention to replace such Subject Lender with a financial
institution designated in such Replacement Notice. If the
Syndication Agent shall, in the exercise of its reasonable
discretion and within 30 days of its receipt of such
Replacement Notice, notify the Borrower and such Subject
Lender in writing that the designated financial institution
is reasonably satisfactory to the Syndication Agent (a
Replacement Term Loan Lender), then such Subject Lender
shall, subject to the payment of any amounts due pursuant to
Section 4.4, assign, in accordance with Section 10.11.1, all
of its Term Loans, Term Notes and other rights and
obligations under this Agreement and all other Loan
Documents to such Replacement Term Loan Lender; provided,
however, that (i) such assignment shall be without recourse,
representation or warranty (other than that such Term Loan
Lender owns the Term Loans and Term Notes being assigned,
free and clear of any Liens) and shall be on terms and
conditions reasonably satisfactory to such Subject Lender
and such Replacement Term Loan Lender and (ii) the purchase
price paid by such Replacement Term Loan Lender shall be in
the amount of such Subject Lender's Loans, together with all
accrued and unpaid interest and fees in respect thereof,
plus all other amounts (other than the amounts demanded and
unreimbursed under Sections 4.3, 4.5 and 4.6, which shall be
payable upon demand by the Borrower), owing to such Subject
Lender hereunder.
ARTICLE V
CONDITIONS TO RESTATEMENT EFFECTIVENESS
SECTION V.1 Effectiveness. This Agreement, and the
restatement of the Existing Term Loan Agreement by this
Agreement, shall become effective upon the satisfaction of each
of the conditions precedent set forth in this Section 5.1.
SECTION V.1.1 Execution of Counterparts. The Collateral
Agent shall have received counterparts of this Agreement, duly
executed and delivered on behalf of the Borrower, each Term Loan
Lender, the Agents and the Collateral Agent.
SECTION V.1.2 Resolutions, etc. The Collateral Agent shall
have received from the Borrower and each other Obligor, as
applicable, (i) a copy of a good standing certificate, dated a
date reasonably close to the Restatement Effective Date, for each
such Person and (ii) a certificate, dated the Restatement
Effective Date and with counterparts for each Term Loan Lender,
duly executed and delivered by such Persons Secretary or
Assistant Secretary as to
(a) resolutions of each such Persons Board of
Directors then in full force and effect authorizing, to the
extent relevant, the execution, delivery and performance of
this Agreement, the Term Notes, each other Loan Document to
be executed by such Person and the transactions contemplated
hereby and thereby;
(b) the incumbency and signatures of those of its
officers or managing members authorized to act with respect
to this Agreement, the Term Notes and each other Loan
Document to be executed by such Person; and
(c) the full force and validity of each Organic
Document of such Person and copies thereof,
upon which certificates each Agent, the Collateral Agent and Term
Loan Lender may conclusively rely until it shall have received a
further certificate of the Secretary, Assistant Secretary or
other duly authorized representative of any such Person canceling
or amending the prior certificate of such Person.
SECTION V.1.3 Loan Documents. The Collateral Agent shall
have received (i) the Revolving Credit Agreement, executed and
delivered by an Authorized Officer of each Revolving Credit
Borrower, and (ii) each other Loan Document required to be
delivered pursuant to this Section 5.1, each executed and
delivered by an Authorized Officer of each Obligor party thereto.
SECTION V.1.4 Affirmation and Consent. The Collateral Agent
shall have received an affirmation and consent in the form set
forth as Exhibit O hereto, executed and delivered by an
Authorized Officer of each of SFAC and SFAC New Holdings.
SECTION V.1.5 Payment of Fees and Expenses. The Borrower
hereby agree to pay and reimburse the Collateral Agent for all of
its reasonable fees and expenses incurred in connection with the
negotiation, preparation, execution and delivery of this
Agreement and related documents, including all reasonable fees
and disbursements of counsel to the Collateral Agent.
SECTION V.1.6 Restatement Effective Date Certificate. The
Collateral Agent shall have received, with counterparts for each
Agent and Term Loan Lender, the Restatement Effective Date
Certificate, dated as of the Restatement Effective Date,
appropriately completed and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificates the
Borrower shall agree and acknowledge that the statements made
therein shall be deemed to be true and correct representations
and warranties of the Borrower. All documents and agreements
required to be appended to the Restatement Effective Date
Certificate shall be in form and substance satisfactory to the
Syndication Agent.
SECTION V.1.7 Perfection Certificate. The Collateral Agent
shall have received a Perfection Certificate, dated as of the
Restatement Effective Date, duly executed and delivered by an
Authorized Officer of the Borrower.
SECTION V.1.8 Opinions of Counsel. The Collateral Agent
shall have received the following opinions, dated the Restatement
Effective Date and addressed to the Agents, the Collateral Agent
and all Term Loan Lenders:
(a) the executed legal opinion of Paul, Weiss,
Rifkind, Wharton and Garrison, special New York counsel to
the Parent and the Borrower, satisfactory in form and
substance to the Collateral Agent and its counsel;
(b) the executed legal opinion of David Schreibman,
Vice President and General Counsel of the Parent and
Borrower; and
(c) the executed legal opinions of local counsel
(acceptable to the Collateral Agent) to the Obligors in each
jurisdiction which the Collateral Agent may reasonably
request, satisfactory in form and substance to the
Collateral Agent and its counsel.
Each such legal opinion shall cover such other matters incident
to the transactions contemplated by this Agreement as the
Collateral Agent may reasonably require.
SECTION V.1.9 Conditions Precedent to Revolving Credit
Agreement. The Collateral Agent shall have received evidence
that each of the conditions precedent to the execution, delivery
and effectiveness of the Revolving Credit Agreement and each
other Revolving Credit Document required to be delivered pursuant
to Section 6.1 of the Revolving Credit Agreement has been
satisfied to the reasonable satisfaction of the Syndication
Agent.
SECTION V.1.10 Litigation. There shall exist no material
litigation, proceedings or investigations, pending or threatened
in writing, which (x) contests the consummation of the
Restructuring or (y) could reasonably be expected to have a
Material Adverse Effect.
SECTION V.1.11 Material Adverse Change. Except as set
forth in Item 6.6 (Material Adverse Change) of the Disclosure
Schedule, since December 31, 1998, there has not occurred or
arisen any event or condition which has had or is reasonably
likely to have a Material Adverse Effect on the Borrower or its
Subsidiaries or the consummation of the Restructuring.
SECTION V.1.12 Consents and Approvals, etc. All
governmental and third party approvals necessary or advisable in
connection with each aspect of the Restructuring and the
continuing operations of the Borrower and its Subsidiaries shall
have been obtained and be in full force and effect or waived, and
all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on
any aspect of the Restructuring.
SECTION V.1.13 Insurance. The Collateral Agent shall have
received satisfactory evidence of the existence of insurance in
compliance with Section 7.1.4 (including all endorsements
included therein), and the Collateral Agent shall be named
additional insured or loss payee, on behalf of the Lenders, in
respect of all proceeds payable in respect of such insurance,
pursuant to documentation reasonably satisfactory to the
Collateral Agent.
SECTION V.1.14 Satisfactory Legal Form. All documents
executed or submitted pursuant hereto by or on behalf of the
Borrower or any of its Subsidiaries or any other Obligors shall
be reasonably satisfactory in form and substance to the
Collateral Agent and its counsel; the Collateral Agent and its
counsel shall have received all information, approvals, opinions,
documents or instruments as the Collateral Agent or its counsel
may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Term Loan Lenders and the Agents and
the Collateral Agent to enter into this Agreement, the Borrower
represents and warrants unto the Agents and the Collateral Agent
and each Term Loan Lender as set forth in this Article VI.
SECTION VI.1 Organization, etc. The Borrower and each of
its Subsidiaries (other than Inactive Subsidiaries) is a
corporation or other entity validly organized and existing and in
good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business
and is in good standing as a foreign corporation or other entity
in each jurisdiction where the nature of its business requires
such qualification, and has full power and authority and holds
all requisite governmental licenses, permits and other approvals
to enter into and perform its Obligations under this Agreement
and each other Loan Document to which it is a party and to own
and hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION VI.2 Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by the Borrower of this
Agreement and each other Loan Document executed or to be executed
by it, the execution, delivery and performance by each other
Obligor of each Loan Document executed or to be executed by it
and the Borrower's and each such other Obligor's participation in
the consummation of all aspects of the Restructuring, and the
execution, delivery and performance by the Borrower and such
other Obligor of the agreements executed and delivered in
connection with the Restructuring are in each case within each
such Persons corporate, partnership or limited liability company
powers, have been duly authorized by all necessary corporate,
partnership or limited liability company action, as the case may
be, and do not
(a) contravene the Borrower's or any such Obligor's
Organic Documents;
(b) contravene any contractual restriction, law or
Governmental Approval or Governmental Rule or court decree
or order binding on or affecting the Borrower or any such
Obligor, where such contravention, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect; or
(c) result in, or require the creation or imposition
of, any Lien on any of the Borrower's or any other Obligor's
properties, except pursuant to the terms of a Loan Document.
SECTION VI.3 Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or
filing with, any Regulatory Authority or other Person (other than
those that have been, or on the Restatement Effective Date will
be, duly obtained or made and which are, or on the Restatement
Effective Date will be, in full force and effect) is required for
the due execution, delivery or performance by the Borrower of
this Agreement or the Term Notes or by the Borrower or any other
Obligor of any other Loan Document to which it is a party.
Neither the Borrower nor any other Obligor nor any of the
Borrower's Subsidiaries is an investment company within the
meaning of the Investment Company Act of 1940, as amended, or a
holding company, or a subsidiary company of a holding company, or
an affiliate of a holding company or of a subsidiary company of a
holding company, within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION VI.4 Validity, etc. This Agreement constitutes,
and the Term Notes and each other Loan Document executed by the
Borrower will, on the due execution and delivery thereof,
constitute, the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with
their respective terms; and each other Loan Document executed
pursuant hereto by each other Obligor will, on the due execution
and delivery thereof by such Obligor, constitute the legal, valid
and binding obligation of such Obligor enforceable against such
Obligor in accordance with its terms (except, in any case above,
as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization or similar laws
affecting creditors' rights generally and by principles of
equity).
SECTION VI.5 Financial Information. All balance sheets,
all statements of operations, shareholders' equity and cash flow
and all other financial information of SFAC New Holdings and the
Borrower and their respective Subsidiaries furnished pursuant to
Section 7.1.1 have been and will for periods following the
Restatement Effective Date be prepared in accordance with GAAP
consistently applied, and do or will present fairly the
consolidated financial condition of the corporations covered
thereby as at the dates thereof and the results of their
operations for the periods then ended, except that quarterly
financial statements need not include footnote disclosure and may
be subject to ordinary year-end adjustment. No Inactive
Subsidiary owns any material assets or any Capital Stock of any
Subsidiary of the Borrower (other than the Capital Stock of
another Inactive Subsidiary) or engages in any business or other
activities of any nature whatsoever. The fair market value of
all assets owned by Trocano does not exceed $500,000 in the
aggregate.
SECTION VI.6 No Material Adverse Change. Except as set
forth in Item 6.6 (Material Adverse Effect) of the Disclosure
Schedule, since December 31, 1998, there has been no material
adverse change in the financial condition, operations, assets,
business or properties of the Borrower and its Subsidiaries and
the Revolving Credit Borrowers and their respective Subsidiaries,
in each case taken as a whole.
SECTION VI.7 Litigation, Labor Controversies, etc. There
is no litigation, action, proceeding, or labor controversy
pending, or to the knowledge of the Borrower, threatened in
writing (a) affecting the Borrower or any of its Subsidiaries, or
any of their respective properties, businesses, assets or
revenues, which could reasonably be expected to have a Material
Adverse Effect, except as disclosed in Item 6.7 (Litigation) of
the Disclosure Schedule or (b) which would materially adversely
affect the legality, validity or enforceability of this
Agreement, any other Loan Document or the Restructuring.
SECTION VI.8 Subsidiaries. The Borrower has no
Subsidiaries, except those Subsidiaries
(a) which are identified in Item 6.8 (existing
Subsidiaries) of the Disclosure Schedule; or
(b) which are permitted to have been organized or
acquired in accordance with Section 7.2.6 or 7.2.11.
SECTION VI.9 Ownership of Properties. The Borrower and
each of its Subsidiaries owns (a) in the case of owned real
property, good and marketable fee title to, and (b) in the case
of owned personal property, good and valid title to, or, in the
case of leased real or personal property, valid and enforceable
leasehold interests (as the case may be) in, all of its
properties and assets, real and personal, tangible and
intangible, of any nature whatsoever, free and clear in each case
of all Liens or claims, except for Liens permitted pursuant to
Section 7.2.4.
SECTION VI.10 Taxes. The Borrower and each of its
Subsidiaries has filed all tax returns and reports required by
law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be due and owing, except
any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its
books.
SECTION VI.11 Pension and Welfare Plans. During the twelve-
consecutive-month period prior to the date of the execution and
delivery of this Agreement or the Revolving Credit Agreement and
prior to the date of the making of any Term Loan hereunder or any
Revolving Credit Loan under the Revolving Credit Agreement, no
steps have been taken to terminate any Pension Plan, and no
contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of
ERISA. No condition exists or event or transaction has occurred
with respect to any Pension Plan which might result in the
incurrence by the Borrower, any Subsidiary or any member of the
Controlled Group of any material liability, fine or penalty other
than such condition, event or transaction which would not
reasonably be expected to have a Material Adverse Effect. Except
as disclosed in Item 6.11 (Employee Benefit Plans) of the
Disclosure Schedule, the Borrower, nor any Subsidiary nor any
member of the Controlled Group has any contingent liability with
respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part
6 of Title I of ERISA.
SECTION VI.12 Environmental Warranties. Except as set
forth in Item 6.12 (environmental Matters) of the Disclosure
Schedule:
(a) since the 1993 Fiscal Year, all facilities and
property (including underlying groundwater) owned or leased
by the Borrower or any of its Subsidiaries have been, and
continue to be, and, at all times prior to the 1993 Fiscal
Year, all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its
Subsidiaries have been, and continue to be, to the best
knowledge of the Borrower, owned or leased by the Borrower
and its Subsidiaries in material compliance with all
Environmental Laws;
(b) since the 1993 Fiscal Year, there have been no
past, and there are no pending or threatened, and, at all
times prior to the 1993 Fiscal Year, there have been, to the
best knowledge of the Borrower, no past, and there are no
pending or threatened
(i) claims, complaints, notices or requests for
information received by the Borrower or any of its
Subsidiaries with respect to any alleged material
violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding
potential material liability under any Environmental
Law;
(c) there have been no Releases of Hazardous
Materials at, on or under any property now or previously
owned or leased by the Borrower or any of its Subsidiaries
that, singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect;
(d) the Borrower and its Subsidiaries have been
issued and are in material compliance with Governmental
Approvals and Governmental Rules relating to environmental
matters and necessary or desirable for their businesses;
(e) no property now or previously owned or leased by
the Borrower or any of its Subsidiaries is listed or, to the
knowledge of the Borrower, proposed for listing (with
respect to owned property only) on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar
state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active
or abandoned, including petroleum storage tanks, on or under
any property now or previously owned or leased by the
Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect;
(g) neither the Borrower nor any Subsidiary of the
Borrower has directly transported or directly arranged for
the transportation of any Hazardous Material to any location
(i) which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or (ii) which is the subject of federal,
state or local enforcement actions or other investigations
which may reasonably be expected to lead to material claims
against the Borrower or such Subsidiary thereof for any
remedial work, damage to natural resources or personal
injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or
friable asbestos present at any property now or previously
owned or leased by the Borrower or any Subsidiary of the
Borrower that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect;
and
(i) no conditions exist at, on or under any property
now or previously owned or leased by the Borrower or any
Subsidiary which, with the passage of time, or the giving of
notice or both, would give rise to material liability of the
Borrower or any Subsidiary under any Environmental Law that
could reasonably be expected to have a Material Adverse
Effect.
SECTION VI.13 Intellectual Property. The Borrower and its
Subsidiaries owns and possesses or licenses (as the case may be)
all such patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service mark
rights and copyrights necessary for the conduct of the businesses
of the Borrower and its Subsidiaries as now conducted without,
individually or in the aggregate, any infringement upon rights of
other Persons, in each case except as would not reasonably be
expected to result in a Material Adverse Effect and there is no
individual patent, patent right, trademark, trademark right,
trade name, trade name right, service mark, service mark right or
copyright the loss of which would result in a Material Adverse
Effect except as may be disclosed in Item 6.13 (Intellectual
Property) of the Disclosure Schedule.
SECTION VI.14 Regulations U and X. Neither the Borrower
nor any of its Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Term Loans or Revolving Credit
Loans will be used to purchase or carry margin stock or otherwise
for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation U or X. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION VI.15 Solvency. The incurrence of the Existing
Term Loans under the Existing Term Loan Agreement and the
Revolving Credit Loans under the Revolving Credit Agreement and
the application of the proceeds of the Existing Term Loans on the
Closing Date and Revolving Credit Loans will not involve or
result in any fraudulent transfer or fraudulent conveyance under
the provisions of Section 548 of the Bankruptcy Code (11 U.S.C.
? 101 et seq., as from time to time hereafter amended, and any
successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. On
the Restatement Effective Date, after giving effect to the
Restructuring, the Borrower and its Subsidiaries and the
Revolving Credit Borrowers and their Subsidiaries, in each case
taken as a whole, are Solvent.
SECTION VI.16 Accuracy of Information. None of the factual
information heretofore or contemporaneously furnished by or on
behalf of the Borrower or any of its Subsidiaries in writing to
the Agents, the Arranger or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated
hereby or thereby or with respect to the Restructuring, contains
any untrue statement of a material fact, and none of the other
factual information hereafter furnished in connection with this
Agreement or any other Loan Document by the Borrower or any other
Obligor to the Agents, the Arranger or any Lender will contain
any untrue statement of a material fact on the date as of which
such information is dated or certified and such factual
information delivered prior to the date of execution and delivery
of this Agreement (unless such information specifically relates
to a prior date) does not, and such factual information hereafter
furnished shall not on the date as of which such information is
dated or certified, omit to state any material fact, necessary to
make any information not misleading in light of the circumstances
under which such information is furnished.
SECTION VI.17 Seniority of the Obligations and Permitted
Indebtedness under the Subordinated Note Indenture. (a) Each
Subordinated Note Document (including the Subordinated Notes)
constitutes the legal, valid and binding obligation of SFC
enforceable against SFC in accordance with its terms. The
subordination provisions of such Subordinated Note Document will
be enforceable against the holders of the Subordinated Notes by
the holder of any Senior Debt (as defined in the Subordinated
Note Indenture). All Obligations, including those to pay
principal of and interest (including post-petition interest) on
the Loans and Reimbursement Obligations, and fees and expenses in
connection therewith, constitute Senior Debt (as defined in the
Subordinated Note Indenture) and all such Obligations are
entitled to the benefits of the subordination created by such
Subordinated Note Document. The Borrower acknowledges that the
Agents, the Documentation Agent, the Issuer and each Lender is
entering into this Agreement and/or the Revolving Credit
Agreement, as the case may be, and is extending its respective
Commitments, in reliance upon the subordination provisions of
such Subordinated Note Documents and this Section 6.17.
(b) The Obligations hereunder and the other Loan Documents
constitute Permitted Indebtedness as defined in the Subordinated
Note Indenture.
SECTION VI.18 Special Purpose Subsidiary.
(a) The capital of the Special Purpose Subsidiary is
adequate for the business and undertakings of the Special
Purpose Subsidiary.
(b) Other than with respect to the ownership by the
Borrower of the Capital Stock of the Special Purpose
Subsidiary and the transfers of funds provided for in the
Asset Sale Proceeds Account Agreement, the Special Purpose
Subsidiary is not engaged in any business transactions with
the Borrower or any of its Subsidiaries or Affiliates.
(c) At least one director of the Special Purpose
Subsidiary shall be an Independent Director.
(d) The Special Purpose Subsidiary's funds and
assets are not, and will not be, commingled with the funds
of any other Person.
(e) The bylaws of the Special Purpose Subsidiary
require it to maintain (i) correct and complete minute books
and records of account, and (ii) minutes of the meetings and
other proceedings of its shareholders and board of
directors.
(f) The shares of stock of the Special Purpose
Subsidiary which have been pledged pursuant to the Borrower
Pledge Agreement constitute all of the issued and
outstanding shares of the Special Purpose Subsidiary.
SECTION VI.19 Concentration and Deposit Accounts. Neither
the Borrower nor any of its Subsidiaries maintains any
Concentration Account with any financial institution other than a
Concentration Account Bank. Item 6.19 (Concentration and Deposit
Accounts) of the Disclosure Schedule sets forth a complete and
accurate list of all Concentration Accounts and Deposit Accounts
of the Borrower and its Subsidiaries.
SECTION VI.20 Year 2000. Any reprogramming required to
permit the proper functioning in and following the year 2000, of
(i) the Borrower's computer systems and equipment containing
embedded microchips (including systems and equipment supplied by
others or with which the Borrower's systems interface) and the
testing of all such systems and equipment, as so reprogrammed,
will be completed by September 30, 1999, except where the failure
to do so could not be reasonably expected to have a Material
Adverse Effect. 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 others' systems or
equipment) will not result in a Material Adverse Effect. Except
for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management
information systems of the Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for
the term of this Agreement to be, sufficient to permit the
Borrower to conduct its business without Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION VII.1 Affirmative Covenants. The Borrower agrees
with the Agents, the Collateral Agent and each Lender that, until
all Obligations have been paid and performed in full, the
Commitments have terminated and the Revolving Credit Letters of
Credit have (x) expired and been returned to the Issuer or (y)
been cash collateralized to the reasonable satisfaction of the
Collateral Agent and the Issuer, the Borrower will perform the
obligations set forth in this Section 7.1.
SECTION VII.1.1 Financial Information, Reports, Notices,
etc. The Borrower will furnish, or will cause to be furnished,
to each Agent, the Collateral Agent and each Lender copies of the
following financial statements, reports, notices and information
(except, in the case of non-public information, as any such
Lender shall have notified the Borrower and the Administrative
Agent in writing that such Lender shall not be furnished with
such financial statements, reports, notices and information):
(a) as soon as available and in any event within 45
days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, unaudited
consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries (including the Special Purpose
Subsidiary) as of the end of such Fiscal Quarter, together
with the related unaudited consolidated and consolidating
statements of operations, changes in stockholder's equity
and cash flow of the Borrower and its Subsidiaries
(including the Special Purpose Subsidiary) for such Fiscal
Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal
Quarter, setting forth the comparative amounts for the
corresponding Fiscal Quarter and portion of the previous
Fiscal Year to the extent required to be included on
financial statements to be filed on a Form 10-Q filed with
the SEC, certified by the chief financial or accounting
Authorized Officer of the Borrower as being fairly stated in
all material respects (subject to normal year-end audit
adjustments) and, in respect of the consolidating financial
statements, when considered in conjunction with the related
consolidated financial statements, taken as a whole;
(b) as soon as available and in any event within
90 days after the end of each Fiscal Year of the Borrower, a
copy of the annual audited consolidated and unaudited
consolidating financial statements for such Fiscal Year for
SFAC New Holdings and the Borrower and their respective
Subsidiaries (including the Special Purpose Subsidiary),
including therein a consolidated and consolidating balance
sheet of SFAC New Holdings and the Borrower and their
respective Subsidiaries (including the Special Purpose
Subsidiary) as of the end of such Fiscal Year, together with
the related consolidated and consolidating statements of
operations, changes in stockholder's equity and cash flow of
SFAC New Holdings and the Borrower and their respective
Subsidiaries (including the Special Purpose Subsidiary) for
such Fiscal Year, in each case (i) in respect of the annual
audited financial statements, as audited (without any
Impermissible Qualification) by KPMG Peat Marwick, or any
other internationally recognized firm of independent
certified public accountants constituting one of the "Big
Six" accounting firms or another internationally recognized
firm of independent certified public accountants acceptable
to the Required Term Loan Lenders and the Required Revolving
Credit Lenders, together with a certificate from such
accountants as to whether, in making the examination
necessary for the signing of such annual report by such
accountants, they have not become aware of any Default that
has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature
thereof and (ii) in respect of the annual unaudited
consolidating financial statements, certified by the chief
financial or accounting Authorized Officer of the Borrower
as being fairly stated in all materials respects (subject to
normal year-end adjustments) when considered in conjunction
with the related consolidated financial statements, taken as
a whole;
(c) as soon as available and in any event within 45
days after the end of each month in each Fiscal Year of the
Borrower the unaudited consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries
(including the Special Purpose Subsidiary) and each
Revolving Credit Borrower and its consolidated Subsidiaries
as at the end of such month and the related unaudited (i)
consolidated and consolidating statements of operations of
the Borrower and its Subsidiaries (including the Special
Purpose Subsidiary) and each Revolving Credit Borrower and
its consolidated Subsidiaries for such month and the portion
of the Fiscal Year through the end of such month, and (ii)
statements of changes in stockholder's equity and cash flows
of the Borrower and its Subsidiaries (including the Special
Purpose Subsidiary) and each Revolving Credit Borrower and
its consolidated Subsidiaries for the portion of the Fiscal
Year through the end of such month, certified by the chief
financial or accounting Authorized Officer of the Borrower
as being fairly stated in all material respects (subject to
normal year-end audit adjustments);
(d) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b), a certificate
executed by the chief financial or accounting Authorized
Officer of the Borrower stating that, to the best of such
Authorized Officer's knowledge, each Obligor during such
period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained
in the Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Authorized
Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(e)(i) not later than thirty days prior to the end
of each Fiscal Year of the Borrower, a copy of the
projections by the Borrower of the operating budget and cash
flow budget of the Borrower and its Subsidiaries (including
the Special Purpose Subsidiary) for the succeeding Fiscal
Year, and (ii) not later than fifteen days following the end
of each Fiscal Year of the Borrower, a copy of the
consolidating projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its
Subsidiaries (including the Special Purpose Subsidiary) for
the succeeding Fiscal Year, such projections and
consolidating projections to be accompanied by a certificate
of the chief financial or accounting Authorized Officer of
the Borrower to the effect that such projections and
consolidating projections have been prepared in good faith
on the basis of reasonable assumptions and that such
Authorized Officer has no reason to believe they are
incorrect or misleading in any material respect;
(f) promptly upon consummating any Acquisition the
total consideration for which exceeds $10,000,000, a
certificate of the chief financial or accounting Authorized
Officer of the Borrower (i) certifying that the
representations and warranties set forth in Section 6.7 and
Section 6.12 shall be true and correct in all material
respects after giving effect to any such Acquisition on and
as of the date of the Acquisition as if made on and as of
such date, (ii) certifying that no Default or Event of
Default has occurred and is continuing after giving effect
to any such transaction and (iii) demonstrating in
reasonable detail the computations and assumptions used to
determine whether the Borrower is in compliance with Section
7.2.5 and clause (h) of Section 7.2.6 as of the end of the
most recently ended Fiscal Quarter prior to such Acquisition
after giving pro forma effect to the consummation of such
Acquisition and any debt incurred or committed to be
incurred in connection with such purchase;
(g) together with the delivery of the financial
information required pursuant to clauses (a) and (b), a
Compliance Certificate, executed by the chief financial or
accounting Authorized Officer of the Borrower, showing (in
reasonable detail and with appropriate calculations and
computations in all respects reasonably satisfactory to the
Agents) compliance with the financial covenants set forth in
Section 7.2.5;
(h) as soon as possible and in any event within
three days after the Borrower or any of its Subsidiaries
obtains knowledge of the occurrence of a Default, a
statement of the chief executive, financial or accounting
Authorized Officer of the Borrower setting forth details of
such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
(i) as soon as possible and in any event within
three Business Days after the Borrower or any of its
Subsidiaries obtains knowledge of (x) the occurrence of any
material adverse development with respect to any litigation,
action, proceeding or labor controversy of the type and
materiality described in Item 6.7 (Litigation) of the
Disclosure Schedule, or (y) the commencement of any
litigation, action, proceeding or labor controversy of the
type and materiality described in Item 6.7 (Litigation) of
the Disclosure Schedule, notice thereof and, to the extent
the Administrative Agent reasonably requests, copies of all
documentation relating thereto;
(j) promptly after the sending or filing thereof,
copies of all reports and registration statements which SFAC
New Holdings or the Borrower or any of their respective
Subsidiaries files with the SEC or any national securities
exchange;
(k) immediately upon becoming aware of (i) the
institution of any steps by the Borrower, any Subsidiary of
the Borrower or any other Person to terminate any Pension
Plan, (ii) the failure to make a required contribution to
any Pension Plan if such failure is sufficient to give rise
to a Lien under Section 302(f) of ERISA, (iii) the taking of
any action with respect to a Pension Plan which could result
in the requirement that the Borrower furnish a bond or other
security to the PBGC or such Pension Plan, or (iv) the
occurrence of any event with respect to any Pension Plan
which could result in the incurrence by the Borrower or any
Subsidiary of the Borrower of any material liability, fine
or penalty, notice thereof and copies of all documentation
relating thereto;
(l) promptly upon receipt thereof, copies of all
detailed management letters submitted to SFAC New Holdings
or the Borrower by the independent public accountants
referred to in clause (b) in connection with each audit made
by such accountants of the books of SFAC New Holdings or the
Borrower or any Subsidiary (including the Special Purpose
Subsidiary);
(m) copies of all material notices delivered or
received by any Obligor pursuant to any Management
Agreement, SFAC Stockholders Agreement, Tax Sharing
Agreement, Financing Document or any Receivables Purchase
Document;
(n) any development or event which would be likely
to have a Material Adverse Effect; and
(o) such other information respecting the condition
or operations, financial or otherwise, of the Parent or the
Borrower or any of its Subsidiaries (including the Special
Purpose Subsidiary) as any Lender through the Administrative
Agent may from time to time reasonably request (including
information and reports from the chief financial or
accounting Authorized Officer of the Borrower, in such
detail as any Agent, the Collateral Agent or any Lender
through the Administrative Agent may reasonably request,
with respect to the terms of and information provided
pursuant to the Compliance Certificate).
SECTION VII.1.2 Compliance with Laws, etc. The Borrower
will, and will cause each of its Subsidiaries to, comply in all
material respects with all Governmental Approvals and
Governmental Rules of any Regulatory Authority except where the
failure to so comply could not reasonably be expected to have a
Material Adverse Effect, such compliance to include (without
limitation):
(a) the maintenance and preservation of the
Borrower's and its Subsidiaries corporate existence and
qualification as foreign corporations, except where the
failure to do so could not reasonably be expected to have a
Material Adverse Effect; and
(b) the payment, before the same become delinquent,
of all material taxes, assessments and governmental charges
imposed upon it or upon its property except to the extent
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION VII.1.3 Maintenance of Properties. Except where
the failure to do so could not reasonably be expected to have a
Material Adverse Effect, the Borrower will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition, and make
necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at all times unless the Borrower determines in good
faith that the continued maintenance of any such property is no
longer economically desirable.
SECTION VII.1.4 Insurance. The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be
maintained with responsible insurance companies insurance with
respect to its properties and business against such casualties
and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and with such
provisions and endorsements as the Agents and the Collateral
Agent may reasonably request, and will, upon request of the
Agents and the Collateral Agent, furnish to the Agents and the
Collateral Agent and each Lender a certificate of the chief
financial or accounting Authorized Officer of the Borrower
setting forth the nature and extent of all insurance maintained
by the Borrower and its Subsidiaries in accordance with this
Section.
SECTION VII.1.5 Books and Records. The Borrower will, and
will cause each of its Subsidiaries to, keep books and records
which accurately reflect all of its business affairs and
transactions and permit the Agents and the Collateral Agent and
each Lender or any of their respective representatives, at
reasonable times and intervals, and, so long as no Default has
occurred and is continuing, upon reasonable prior notice, to
visit all of its offices, to discuss its financial matters with
its officers and, upon reasonable prior notice to the Borrower
and in the presence of one or more Authorized Officers of the
Borrower (whose attendance at such discussion cannot be
unreasonably refused), its independent public accountant (and the
Borrower hereby authorizes such independent public accountant to
discuss under such conditions the Borrower's financial matters
with each Lender or its representatives and to examine (and, at
the expense of the Borrower, photocopy extracts from) any of its
books or other corporate records. No Agent nor the Collateral
Agent nor any Lender shall have any responsibility for the
payment of any fees of such independent public accountant
incurred in connection with any Agent's, the Collateral Agent's
or any Lender's exercise of its rights pursuant to this Section.
SECTION VII.1.6 Environmental Covenant. The Borrower will,
and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and
properties in material compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental
matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in material compliance with
all applicable Environmental Laws in each case except where
the failure to comply with the terms of this clause could
not reasonably be expected to have a Material Adverse
Effect;
(b) promptly notify the Agents and the Collateral
Agent and provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition
of its facilities and properties in respect of, or as to
compliance with, Environmental Laws which relate to
environmental matters which would have, or would reasonably
be expected to have, a Material Adverse Effect, and promptly
cure and have dismissed with prejudice any material actions
and proceedings relating to compliance with Environmental
Laws, except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP have been set aside on its
books;
(c) provide such information and certifications
which the Agents and the Collateral Agent may reasonably
request from time to time to evidence compliance with this
Section 7.1.6; and
(d) prior to acquiring any ownership or leasehold
interest in any bakery or production facility, processing or
packaging plant or facility or other parcel of real property
having a value as determined in good faith by the Collateral
Agent in excess of $15,000,000 in respect of which the
Borrower or the relevant Subsidiary has obtained a written
environmental assessment by an environmental consulting firm
of recognized standing (an Environmental Assessment), (i)
provide the Agents and the Collateral Agent with a complete
copy of such Environmental Assessment as soon as possible
after the Borrower's receipt thereof (but in no event less
than five days prior to such Acquisition) and (ii) if
requested by any Agent or the Collateral Agent, consult with
and make the environmental consulting firm available to
consult with any Agent or Collateral Agent concerning the
results of such Environmental Assessment.
SECTION VII.1.7 Additional Collateral.
(a) If after the Closing Date, the Borrower acquires
any property (other than Sold Receivables but including,
without limitation, the Capital Stock of any Person) in
which the Collateral Agent does not have a first-perfected
security interest pursuant to the Security Documents, the
Borrower shall promptly notify the Agents and the Collateral
Agent of such acquisition and, upon the reasonable request
of any Agent or the Collateral Agent, shall execute and
deliver to the Agents and the Collateral Agent not later
than 45 days following such request such documents and
instruments (including, without limitation, security
agreements and pledge agreements), and take such action
(including, without limitation, the filing of financing
statements under the U.C.C. in the relevant jurisdictions
and the delivery of stock certificates and instruments), as
any Agent or the Collateral Agent, may reasonably request in
order to grant to the Collateral Agent, as collateral
security for the Term Loan Obligations, a first perfected
security interest in such property of the Borrower, subject
to the Liens permitted by Section 7.2.4.
(b) If after the Closing Date, any Subsidiary of the
Borrower (other than a Controlled Foreign Subsidiary)
acquires any property (other than Sold Receivables but
including, without limitation, the Capital Stock of any
Person) in which the Collateral Agent does not have a first-
perfected security interest pursuant to the Security
Documents, the Borrower shall promptly notify the Agents and
the Collateral Agent of such acquisition and, upon the
reasonable request of any Agent or the Collateral Agent,
shall cause such Subsidiary to execute and deliver to the
Agents and the Collateral Agent not later than 45 days
following such request such documents and instruments
(including, without limitation, security agreements and
pledge agreements) and take such action (including, without
limitation, the filing of financing statements under the
U.C.C. in the relevant jurisdictions and the delivery of
stock certificates and instruments) as any Agent may
reasonably request in order to grant to the Collateral
Agent, as collateral security for the Revolving Credit
Obligations and such Subsidiary's obligations under the
Subsidiary Guaranty, a first perfected security interest in
such property of such Subsidiary, subject to the Liens
permitted by Section 7.2.4.
(c) If after the Closing Date, the Borrower or any
of its Subsidiaries acquires or creates any new Subsidiary,
the Borrower shall promptly notify the Agents and the
Collateral Agent of such acquisition or creation and, not
later than 45 days thereafter, shall, (i) if such Subsidiary
is not a Controlled Foreign Subsidiary, cause such new
Subsidiary to execute and deliver to the Agents and the
Collateral Agent, with counterparts for each Revolving
Credit Lender, a Subsidiary Guaranty and, if such new
Subsidiary owns any Capital Stock of any other Subsidiary or
Person, the Revolving Credit Pledge Agreement in order to
pledge such Capital Stock and to execute and deliver to the
Collateral Agent a Revolving Credit Security Agreement and,
if applicable, a Revolving Credit Copyright Security
Agreement, a Revolving Credit Patent Security Agreement
and/or a Revolving Credit Trademark Security Agreement, (ii)
if such Subsidiary is not a Controlled Foreign Subsidiary,
deliver to the Collateral Agent, the Capital Stock of such
new Subsidiary, or cause the Subsidiary of the Borrower that
owns such Capital Stock to deliver such Capital Stock to the
Collateral Agent, to be held by it pursuant to the
applicable Stock Agreement and (iii) if such Subsidiary is a
Controlled Foreign Subsidiary and is not itself owned by a
Controlled Foreign Subsidiary, deliver to the Collateral
Agent 65% of the Capital Stock of such new Subsidiary or
cause the Subsidiary of the Borrower that owns such Capital
Stock to deliver 65% of such Capital Stock to the Collateral
Agent to be held by it pursuant to the applicable Pledge
Agreement.
(d) As and when required from time to time pursuant
to clause (a) or (b) with respect to real properties
required to be mortgaged pursuant to clause (a) or (b) (the
Section 7.1.7 Properties), the Borrower shall, and shall
cause each of the Subsidiaries of the Borrower required to
mortgage a Section 7.1.7 Property to, execute and deliver to
the Agents and the Collateral Agent, for the benefit of the
Term Loan Lenders or the Revolving Credit Lenders, as the
case may be, a mortgage or leasehold mortgage (as
appropriate), in form and substance substantially identical
to the Mortgage or Revolving Credit Mortgage, as the case
may be (with such changes thereto as are advised by local
counsel to the Collateral Agent as appropriate for the laws
of the relevant state) encumbering, as collateral security
for the Term Loan Obligations and the Revolving Credit
Obligations (and such Subsidiary's obligations under the
Subsidiary Guaranty), as the case may be, the relevant
Section 7.1.7 Property and in connection therewith, upon the
reasonable request of any Agent or the Collateral Agent, the
Agents and the Collateral Agent shall have received each of
the following:
(i) Maps or plans of an as-built survey of the
sites of the property covered by each such mortgage
or leasehold mortgage certified to the Agents and the
Collateral Agent and the title insurance company (the
Title Insurance Company) referred to in clause (ii)
below in a manner reasonably satisfactory to them,
dated a date reasonably satisfactory to the
Collateral Agent and the Title Insurance Company by
an independent professional licensed land surveyor
reasonably satisfactory to the Collateral Agent and
the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in
accordance with the minimum Standard Detail
Requirements for Land Title Surveys jointly
established and adopted by the American Land Title
Association and the American Congress on Surveying
and mapping in 1992 (and shall constitute a Class A
survey thereunder), and, without limiting the
generality of the foregoing, there shall be surveyed
and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all
the buildings, structures and other improvements and
the established building setback lines; (B) the lines
of streets abutting the sites and width thereof; (C)
all access and other easements appurtenant to the
sites or necessary or desirable to use the sites; (D)
all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar
encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the
building structures and improvements on the sites;
and (F) if the site is described as being on a filed
map, a legend relating the survey to said map.
(ii) With respect to each parcel covered by each
such mortgage or leasehold mortgage a mortgagee's
title policy (or policies) or marked up unconditional
binder for such insurance dated the date such
mortgage or leasehold mortgage is recorded; each such
policy shall (A) be in an amount not less than 110%
and not greater than 125% of the fair market value
(as agreed upon by the Borrower and the Collateral
Agent) of the property covered by such policy; (B) be
issued at ordinary rates; (C) insure that such
mortgage or leasehold mortgage insured thereby
creates a valid first mortgage Lien on such parcel
free and clear of all defects and encumbrances,
except such as may be approved by the Collateral
Agent (such approval not to be unreasonably withheld)
and except for Liens permitted by Section 7.2.4; (D)
name the Collateral Agent for the benefit of the
Revolving Credit Lenders as the insured thereunder;
(E) be in the form of ALTA Loan Policy - 1990; (F)
contain such obtainable endorsements and affirmative
coverage as the Agents and the Collateral Agent may
reasonably request (provided that such endorsements
and affirmative coverage shall not include zoning or
usury endorsements); and (G) be issued by First
American Title Insurance Company, with coinsurers or
reinsurers at the option of and reasonably
satisfactory to the Collateral Agent. In addition,
the Collateral Agent shall have received evidence
reasonably satisfactory to it that all premiums in
respect of each such policy, and all charges for
mortgage recording taxes, if any, have been paid.
(iii) With respect to any parcel of improved real
property encumbered by any such mortgage or leasehold
mortgage that is within a federally designated flood
zone, if requested by any Agent or the Collateral
Agent, (A) a policy of flood insurance which (1)
covers such parcel, (2) is written in an amount not
less than the outstanding principal amount of the
indebtedness secured by such mortgage or leasehold
mortgage which is reasonably allocable to such real
property or the maximum limit of coverage made
available with respect to the particular type of
property, whichever is less, and (3) has a term
ending not later than the maturity of the
indebtedness secured by such mortgage or leasehold
mortgage and (B) confirmation that the Subsidiary of
the Borrower delivering such mortgage or leasehold
mortgage has received the notice required pursuant to
Section 208(e)(3) of Regulation H of the Board.
(iv) To the extent required by applicable law,
with respect to each parcel of real property covered
by any such mortgage or leasehold mortgage, a
valuation letter or appraisal complying with the
requirements of the Financial Institution Reform,
Recovery and Enforcement Act of 1989 and otherwise in
form and substance reasonably satisfactory to the
Collateral Agent.
(v) If requested by any Agent or the Collateral
Agent with respect to a leasehold mortgage, use best
efforts to obtain, as soon as reasonably practicable
after such request, a consent to such leasehold
mortgage from the owner(s) of the underlying real
property and leases, if any, in form and substance
satisfactory to the Collateral Agent; provided that
such best efforts shall not include the payment of
any consideration other than payment of legal fees
and expenses of such owner(s).
(vi) If requested by the Agents and the
Collateral Agent, cause to be delivered to the Agents
and the Collateral Agent an opinion of counsel with
respect to the matters referred to above and
satisfactory in all respects to the Collateral Agent.
SECTION VII.1.8 [Intentionally Omitted].
SECTION VII.1.9 [Intentionally Omitted].
SECTION VII.1.10 Independent Corporate Existence. The
Borrower agrees for itself and each of its Subsidiaries
(including the Special Purpose Subsidiary), as follows:
(a) The Articles of Incorporation of the Special
Purpose Subsidiary shall at all times include provisions
requiring that (i) the Board of Directors of the Special
Purpose Subsidiary must at all times include at least one
Independent Director and (ii) any decision by the Special
Purpose Subsidiary to commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to the Special Purpose Subsidiary or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property or
consenting to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it or the making
of a general assignment for the benefit of its creditors
shall require the approval of the Independent Director of
the Special Purpose Subsidiary, together with such other
members of the Board of Directors of the Special Purpose
Subsidiary as required by the Organic Documents of the
Special Purpose Subsidiary.
(b) The Board of Directors of the Special Purpose
Subsidiary shall at all times include at least one
Independent Director and the Special Purpose Subsidiary
shall consult (as to the satisfaction of the criteria set
forth in the definition of Independent Director) with the
Syndication Agent in selecting any such Independent
Director.
(c) The Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain, books, records and
accounts that are separate from the books, records and
accounts of the Parent or any of its Subsidiaries (other
than the Borrower and its Subsidiaries) such that: (i) the
revenues of the Borrower and its Subsidiaries will be
credited to the accounts of the Borrower and its
Subsidiaries only; (ii) all expenses incurred by the
Borrower and its Subsidiaries shall be paid only from the
accounts of the Borrower and its Subsidiaries (other than
those paid by the Parent and allocated to the Borrower in
the manner set forth in clause (g) of this Section); (iii)
only officers and employees of the Borrower and its
Subsidiaries in their capacity as such shall have the
authority to make disbursements with respect to the accounts
of the Borrower and its Subsidiaries; (iv) there shall occur
no sharing of accounts or funds (other than cash deposits
with insurers) between the Borrower and its Subsidiaries, on
the one hand, and the Parent or any of its Subsidiaries
(other than the Borrower and its Subsidiaries), on the other
hand; and (v) all cash and funds of the Borrower and its
Subsidiaries shall be managed separately from the cash and
funds (other than cash deposits with insurers) of the Parent
or any of its Subsidiaries (other than the Borrower and its
Subsidiaries), and there shall not occur any commingling,
including the investment purposes, of funds or assets of the
Borrower and its Subsidiaries with the funds or assets of
the Parent or any of its Subsidiaries (other than the
Borrower and its Subsidiaries).
(d) Each Form 10-Q and Form 10-K of SFAC New
Holdings and the Borrower and their respective Subsidiaries
that is filed with the Securities and Exchange Commission
(or any substitute or successor form) shall include a note
clearly stating that the Borrower and its Subsidiaries
(including the Special Purpose Subsidiary) are separate
corporate entities and that their respective assets and the
assets of their respective Subsidiaries are available first
and foremost to satisfy the claims of the creditors of the
Borrower and such Subsidiaries.
(e) All full-time employees of the Borrower and its
Subsidiaries in such capacity shall, as the need arises,
identify themselves as such and not as employees of the
Parent or any of its Subsidiaries (other than the Borrower
and its Subsidiaries).
(f) All full-time employees, consultants and agents
of the Borrower and its Subsidiaries shall be compensated
directly from the bank accounts of the Borrower and such
Subsidiaries for services provided by such employees,
consultants and agents and, to the extent any employee,
consultant or agent is also an employee, consultant or agent
of the Parent or any of its Subsidiaries (other than the
Borrower and its Subsidiaries), the compensation of such
employee, consultant or agent shall be allocated in
accordance with clause (g) of this Section 7.1.10 among the
Borrower and its Subsidiaries, on the one hand, and the
Parent and any of its Subsidiaries (other than the Borrower
and its Subsidiaries), on the other hand, on a basis which
reasonably reflects the services rendered to the Borrower
and its Subsidiaries.
(g) All overhead expenses (including telephone and
other utility charges) for items shared by the Borrower and
its Subsidiaries, on the one hand, and the Parent or any of
its Subsidiaries (other than the Borrower and its
Subsidiaries), on the other hand, shall be allocated on the
basis of actual use to the extent practicable and, to the
extent such allocation is not practicable, on a basis
reasonably related to actual use.
SECTION VII.1.11 Asset Sale Proceeds Contribution and
Deposit. Immediately upon receipt of Asset Sale Proceeds, the
Borrower shall contribute, and shall cause the Parent or the
relevant Subsidiary of the Borrower to contribute to the Borrower
and the Borrower shall in turn contribute, all such Asset Sale
Proceeds to the Special Purpose Subsidiary and, immediately upon
receipt thereof, cause the Special Purpose Subsidiary to deposit
the amount of such contribution into the Asset Sale Proceeds
Account.
SECTION VII.1.12 Establishment and Administration of
Accounts.
(a) The Borrower and its Subsidiaries shall
establish and maintain Concentration Accounts pursuant to
Concentration Account Agreements in the name of the
Collateral Agent for the benefit of the Term Loan Lenders
with the Concentration Account Banks. The Borrower and its
Subsidiaries shall have the right to collect and shall,
promptly upon receipt thereof, deposit in its respective
Concentration Accounts all monies that constitute cash,
checks, notes, drafts, bills of exchange, money orders or
funds received by the Borrower or any of its Subsidiaries in
the ordinary course of business on deposit in any Deposit
Account or otherwise and that constitute proceeds of
Collateral in precisely the form in which received (but with
any endorsements of the Borrower or any of its Subsidiaries
necessary for deposit or collection). Any amounts which are
required to be paid to the Collateral Agent hereunder which
are not proceeds of Collateral shall be paid directly to the
Collateral Agent and not deposited in a Deposit Account. At
the close of business on each Business Day, the Borrower
shall, and shall cause each of its Subsidiaries to,
transfer, or cause to be transferred, all funds on deposit
in all Deposit Accounts aggregating in excess of $1,500,000
to a Concentration Account of the Borrower or such
Subsidiary in accordance with the terms of the Concentration
Account Agreements.
(b) At the close of business on each Business Day,
the Borrower shall, and shall cause each of its Subsidiaries
to, transfer all funds on deposit in all Concentration
Accounts to the Collateral Account in accordance with the
terms of the Concentration Account Agreements. The
Collateral Account shall be subject to the terms of the
Collateral Account Agreement and shall be under the sole
dominion and control of the Collateral Agent, and the
Collateral Agent shall have the sole right of withdrawal
over the Collateral Account; provided, however, that so long
as no Default of the type described in clauses (a) through
(d) of Section 8.1.9 or any Event of Default shall have
occurred and be continuing, the Borrower may at any time
withdraw funds on deposit in the Collateral Account for use
in any lawful manner not inconsistent with this Agreement or
any other Loan Document. Upon the occurrence of any Default
of the type described in clauses (a) through (d) of Section
8.1.9 or any Event of Default, the Borrower shall
immediately give notice thereof to the Administrative Agent
and the Collateral Agent. Any term or provision of this
clause (b) to the contrary notwithstanding, upon delivery of
a certificate, certified by the chief financial or
accounting Authorized Officer of the Borrower, to the Agents
and the Collateral Agent in accordance with Section 3 of the
Collateral Account Agreement, the Borrower shall be
permitted to make withdrawals from the Collateral Account
during the continuance of any such Default or Event of
Default solely for (i) working capital purposes of the
Borrower and its Subsidiaries, (ii) maintenance Capital
Expenditures in an aggregate amount during the continuance
of any such Default or Event of Default not to exceed
$2,500,000 or (iii) other purposes as may be approved by the
Collateral Agent.
(c) The Borrower shall cause the Special Purpose
Subsidiary to establish and maintain the Asset Sale Proceeds
Account pursuant to the Asset Sale Proceeds Account
Agreement in the name of the Collateral Agent for the
benefit of the Revolving Credit Lenders with the Collateral
Agent. Promptly upon receipt thereof, the Borrower shall
contribute, and shall cause the Parent or the relevant
Subsidiary of the Borrower to contribute to the Borrower and
the Borrower shall in turn contribute to the Special Purpose
Subsidiary, and shall cause the Special Purpose Subsidiary
to deposit in such Asset Sale Proceeds Account, all Asset
Sale Proceeds received by the Parent, the Borrower and its
Subsidiaries. In addition, at any time that the amount on
deposit in the Collateral Account exceeds $14,000,000, the
Borrower shall transfer, or cause to be transferred, any
such excess amount to the Asset Sale Proceeds Account.
(d) The Asset Sale Proceeds Account shall be subject
to the terms of the Asset Sale Proceeds Account Agreement
and shall be under the sole dominion and control of the
Collateral Agent and the Collateral Agent shall have the
sole right of withdrawal over the Asset Sale Proceeds
Account; provided, however, that so long as no Default of
the type described in clauses (a) through (d) of Section
8.1.9 or any Event of Default shall have occurred and be
continuing, the Borrower may direct the Special Purpose
Subsidiary to withdraw and deliver to the Borrower amounts
on deposit in the Asset Sale Proceeds Account to fund
Acquisitions or Capital Expenditures by the Borrower or for
working capital purposes of the Borrower upon delivery of a
certificate to the Agents and the Collateral Agent in
accordance with Section 3 of the Asset Sale Proceeds Account
Agreement detailing the application of such amounts. Upon
the occurrence of any Default of the type described in
clauses (a) through (d) of Section 8.1.9 or any Event of
Default, the Borrower shall immediately give notice thereof
to the Administrative Agent and the Collateral Agent. Any
term or provision of this clause (d) to the contrary
notwithstanding, upon delivery of a certificate, certified
by the chief financial or accounting Authorized Officer of
the Borrower, to the Agents and the Collateral Agent in
accordance with Section 3 of the Asset Sale Proceeds Account
Agreement, the Borrower shall be permitted to make
withdrawals from the Asset Sale Proceeds Account during the
continuance of any such Default or Event of Default solely
for (i) working capital purposes of the Borrower and its
Subsidiaries, (ii) maintenance Capital Expenditures in an
aggregate amount during the continuance of any such Default
or Event of Default not to exceed $2,500,000 or (iii) other
purposes may be approved by the Collateral Agent.
(e) The Borrower shall instruct the Administrative
Agent or other Concentration Account Bank to invest funds on
deposit in any Concentration Account, the Collateral Account
and the Asset Sale Proceeds Account at all times in Cash
Equivalent Investments. Pursuant to the Borrower Pledge
Agreement, the Borrower shall pledge and assign to the
Collateral Agent and grant to the Collateral Agent a
security interest, for the benefit of the Agents, the
Collateral Agent and the Term Loan Lenders, in each
Concentration Account and the Collateral Account and all
funds from time to time deposited therein, including,
without limitation, all Cash Equivalent Investments.
Pursuant to a Subsidiary Pledge Agreement, the Borrower
shall cause the Special Purpose Subsidiary to pledge and
assign to the Collateral Agent and grant to the Collateral
Agent a security interest, for the benefit of the Agents,
the Collateral Agent and the Revolving Credit Lenders, in
the Asset Sale Proceeds Account and all funds from time to
time deposited therein, including, without limitation, all
Cash Equivalent Investments.
(f) The Borrower agrees to pay any and all
reasonable fees, costs and expenses which any Agent incurs
in connection with establishing and maintaining the
Collateral Account and the Asset Sale Proceeds Account or
any similar payment collection mechanism for the Borrower,
the Special Purpose Subsidiary and its other Subsidiaries
and depositing for collection any check or item of payment
received by and/or delivered to the Administrative Agent on
account of the Obligations.
SECTION VII.1.13 Special Purpose Subsidiary. The Borrower
agrees with the Agents, the Collateral Agent and each Lender
that, until all Obligations have been paid and performed in full,
the Commitments have terminated and the Revolving Credit Letters
of Credit have (x) expired or been returned to the Issuer or (y)
been cash collateralized to the reasonable satisfaction of the
Collateral Agent and the Issuer, the Borrower will, and will
cause the Special Purpose Subsidiary to, perform the obligations
set forth in this Section 7.1.13.
(a) The Special Purpose Subsidiary shall conduct its
business solely in its own name through its duly Authorized
Officers or agents so as not to mislead others as to the
identity of the entity with which those Authorized Officers
or agents are connected, and particularly will avoid the
appearance of conducting business on behalf of the Parent,
the Borrower or any Affiliate thereof or that the assets of
the Special Purpose Subsidiary, other than funds on deposit
in the Asset Sale Proceeds Account, are available to pay the
creditors of the Parent, the Borrower or any Affiliate
thereof. Without limiting the generality of the foregoing,
all oral and written communications, including, without
limitation, letters, invoices, purchase orders, contracts,
statements and loan applications, will be made solely in the
name of the Special Purpose Subsidiary.
(b) The Special Purpose Subsidiary shall maintain
corporate records and books of account separate from those
of the Parent, the Borrower and the Affiliates thereof at
the address designated herein for receipt of notices, unless
the Special Purpose Subsidiary shall otherwise advise the
parties hereto in writing.
(c) The Special Purpose Subsidiary shall obtain
proper authorization from its board of directors of all
corporate actions requiring such authorization. Meetings of
the board of directors will be held at least three times per
annum and copies of the minutes of each such board meeting
shall be delivered to the Agents within two weeks of such
meeting.
(d) The Special Purpose Subsidiary shall obtain
proper authorization from its shareholders of all corporate
action requiring shareholder approval. Meetings of the
shareholders of the Special Purpose Subsidiary shall be held
not less frequently than one time per annum and copies of
each such authorization and the minutes of each such
shareholder meeting shall be delivered to Agents within two
weeks of such authorization or meeting, as the case may be.
(e) Although the organizational expenses of the
Special Purpose Subsidiary have been paid by SFC, operating
expenses and liabilities of the Special Purpose Subsidiary
shall be paid from its own funds.
(f) The annual financial statements of the Special
Purpose Subsidiary shall be prepared separately from those
of the Parent, the Borrower and any Affiliate thereof and
shall disclose the effects of the Special Purpose
Subsidiary's transactions in accordance with GAAP and that
the assets of the Special Purpose Subsidiary are available
first and foremost for the benefit of the Agents and the
Lenders and will not be available to pay creditors of the
Parent, the Borrower or any Affiliate thereof.
(g) The resolutions, agreements and other
instruments of the Special Purpose Subsidiary underlying the
transactions described in the Loan Documents shall be
continuously maintained by the Special Purpose Subsidiary as
official records of the Special Purpose Subsidiary
separately identified and held apart from the records of the
Parent, the Borrower and each Affiliate thereof.
(h) The Special Purpose Subsidiary shall maintain an
arm?s-length relationship with the Parent, the Borrower and
the Affiliates thereof and will not hold itself out as being
liable for the debts of the Parent, the Borrower or any
Affiliate thereof.
(i) The Special Purpose Subsidiary shall keep its
assets and its liabilities wholly separate from those of all
other entities, including, but not limited to the Parent,
the Borrower and the Affiliates thereof, except as
contemplated by the Asset Sale Proceeds Account Agreement or
as permitted under the Loan Documents.
SECTION VII.1.14 Year 2000. The Borrower shall take all
action necessary to assure that its computer based systems are
able to effectively process data including dates on and after
January 1, 2000, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect. At the
request of the Collateral Agent or any Lender, the Borrower shall
provide the Collateral Agent or such Lender, as the case may be,
with evidence reasonably acceptable to the Collateral Agents or
such Lender, as the case may be, of the Borrower's year 2000
capability.
SECTION VII.2 Negative Covenants. The Borrower agrees with
the Agents, the Collateral Agent and each Lender that, until all
Obligations have been paid and performed in full, the Commitments
have terminated and the Revolving Credit Letters of Credit have
(x) expired or been returned to the Issuer or (y) been cash
collateralized to the reasonable satisfaction of the Collateral
Agent and the Issuer, the Borrower will perform the obligations
set forth in this Section 7.2.
SECTION VII.2.1 Business Activities. The Borrower will
not, and will not permit any Subsidiary to, engage in any
business activity, except the business of production and
distribution of breads, buns, rolls, sweet goods, cookies and
other baked goods and pre-cooked meat and other food products and
operation of retail cafes and such activities as may be
incidental, similar or related thereto.
SECTION VII.2.2 Indebtedness. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume
or suffer to exist or otherwise become or be liable in respect of
any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Term Loans and
other Obligations;
(b) [Intentionally Omitted];
(c) (i) Indebtedness of the Revolving Credit
Borrowers under the Revolving Credit Agreement and the other
Loan Documents and (ii) Indebtedness of the Obligors (other
than the Borrower and the Revolving Credit Borrowers) under
the Loan Documents;
(d) Indebtedness incurred by the Borrower or any of
its Subsidiaries that is represented by Capitalized Lease
Liabilities, mortgage financings or purchase money
obligations (but only to the extent otherwise permitted by
Section 7.2.8 and the New 11-?% Senior Note Indenture);
provided, that the maximum aggregate amount of all
Indebtedness permitted under this clause (d) shall not
exceed $5,000,000 in aggregate principal amount at any time
outstanding;
(e) Hedging Obligations of the Borrower or any of
its Subsidiaries under any Rate Protection Agreement in
respect of the Term Loans or Revolving II Credit Loans;
(f) (i) intercompany Indebtedness between or among
the Borrower and any of its wholly-owned U.S. Subsidiaries,
which Indebtedness (x) shall be evidenced by one or more
promissory notes in form and substance satisfactory to the
Agents which (except in the case of any such notes held by a
Non-U.S. Subsidiary) have been duly executed and delivered
to (and indorsed to the order of) the Collateral Agent in
pledge pursuant to a Pledge Agreement, and (y) shall not be
forgiven or otherwise discharged for any consideration other
than payment (Dollar for Dollar) in cash unless the
Collateral Agent otherwise consents and (ii) additional
Indebtedness of the Foreign Subsidiaries and Trocano in an
aggregate principal amount at any time outstanding not to
exceed $1,000,000;
(g) (i) Indebtedness (including the New 11-?% Senior
Notes, the New 12-?% Senior Notes and the New Subordinated
Notes) outstanding on the date hereof (or in the case of the
New 11-?% Senior Notes, the New 12-?% Senior Notes and the
New Subordinated Notes, issued in connection with an
exchange offer for such notes pursuant to the registration
rights agreements relating to such notes) and listed on Item
7.2.2(g) (Existing Indebtedness) of the Disclosure Schedule
and any (ii) refinancings, refundings, renewals or
extensions of such Indebtedness; provided that (A) the
principal amount of such new Indebtedness does not exceed
the principal amount of, plus accrued and unpaid interest
and premiums (if any) on, and, in the case of the New
Subordinated Notes, pay-in-kind and accreted interest with
respect to, the Indebtedness refinanced, refunded, renewed
or extended (the Refinanced Indebtedness), (B) any such
Indebtedness incurred by any Subsidiary (other than the
Receivables Subsidiary) shall only extend, refinance, renew,
replace, defease or refund Refinanced Indebtedness of one or
more Subsidiaries (and, in the case of any such Indebtedness
which extends, refinances, increases, renews, replaces,
defeases or refunds Refinanced Indebtedness of the
Receivables Subsidiary, such Indebtedness is incurred by the
Receivables Subsidiary), (C) the weighted average life to
maturity of such new Indebtedness is the same as or longer
than that of the Refinanced Indebtedness and (D) if the
Refinanced Indebtedness is subordinated in right of payment
to the Term Loans or the Revolving Credit Obligations, as
the case may be, the new Indebtedness shall be subordinated
in right of payment to the Term Loans and the Revolving
Credit Obligations on terms at least as favorable to the
Lenders as those contained in the documentation governing
the Refinanced Indebtedness;
(h) Indebtedness of a Person which becomes a
Subsidiary after the date hereof or is merged with or into a
Subsidiary after the date hereof, in an aggregate principal
amount for all Subsidiaries not to exceed $20,000,000 at any
time outstanding (exclusive of Indebtedness incurred under
this Agreement or under the Revolving Credit Agreement to
refinance any such Indebtedness of such Person); provided
that (i) such Indebtedness existed at the time such Person
became or was merged with or into a Subsidiary and was not
created in anticipation thereof, (ii) immediately after
giving effect to the acquisition of such Person by the
Borrower or one of its Subsidiaries, no Default shall have
occurred and be continuing, (iii) such Indebtedness is not
revolving Indebtedness, (iv) the aggregate collateral value
of the assets, if any, securing such Indebtedness,
reasonably determined by the Borrower, is not in excess of
the principal amount of such Indebtedness and (v) the
covenants and events of default in the documentation
governing such Indebtedness are not more restrictive in any
material respect than the covenants and Events of Default
hereunder;
(i) Indebtedness of the Borrower or any of its
Subsidiaries to the extent permitted as Guarantee
Obligations pursuant to Section 7.2.3;
(j) to the extent that the Receivables Subsidiary's
obligation to purchase or acquire Receivables under the
Receivables Sale Agreement is deemed to be an obligation to
lend money to Receivables Selling Subsidiaries, any
Indebtedness of the Receivables Selling Subsidiaries, under
the Receivables Purchase Documents;
(k) other unsecured Indebtedness of the Borrower
permitted to be incurred by paragraph (i) of Section 4.09 of
the New 11-?% Senior Note Indenture (the content of which is
listed on Item 7.2.2(k) (permitted Additional Indebtedness)
of the Disclosure Schedule), as in effect on the Restatement
Effective Date and without giving effect to any modification
or supplement thereto, or to related definitions and
ancillary provisions, or termination thereof, after the
Restatement Effective Date in an aggregate amount at any
time outstanding not to exceed $8,000,000; and
(l) unsecured Indebtedness of the Borrower or any of
its Subsidiaries incurred in the ordinary course of business
(including open accounts extended by suppliers on normal
trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the
borrowing of money or Guarantee Obligations).
Notwithstanding the foregoing, no Indebtedness otherwise
permitted by clauses (d), (h), or (k) shall be permitted to be
incurred if, both before and after giving effect to the
incurrence thereof, any Default shall have occurred and be
continuing.
SECTION VII.2.3 Guarantee Obligations. The Borrower will
not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist or otherwise become or be liable
in respect of any Guarantee Obligation other than, without
duplication, the following:
(a) Guarantee Obligations in existence on the date
hereof listed on Item 7.2.3(a) (Existing Guarantee
Obligations) of the Disclosure Schedule and any
refinancings, refundings, renewals or extensions thereof;
provided that (i) the principal amount of such new Guarantee
Obligations does not exceed the outstanding principal amount
of the Guarantee Obligations refinanced, refunded, renewed
or extended (the Refinanced Guarantee Obligations), (ii) any
such new Guarantee Obligations incurred by any Subsidiary of
the Borrower shall only extend, refinance, renew, replace,
defease or refund Refinanced Guarantee Obligations of such
Subsidiary, (iii) the weighted average life to maturity of
such new Guarantee Obligations is the same as or longer than
that of the Refinanced Guarantee Obligations and (iv) if the
Refinanced Guarantee Obligation is subordinated in right of
payment to the Term Loans or the Revolving Credit
Obligations, as the case may be, the new Guarantee
Obligation shall be subordinated in right of payment to the
Term Loans and the Revolving Credit Obligations, as
applicable, on terms at least as favorable to the Lenders as
those contained in the documentation governing the
Refinanced Guarantee Obligation;
(b) Guarantee Obligations in favor of the Collateral
Agent and the Lenders created by the Loan Documents;
(c) Guarantee Obligations in respect of Revolving
Credit Letters of Credit issued under the Revolving Credit
Agreement;
(d) Guarantee Obligations of a corporation which
becomes a Subsidiary or is merged with or into a Subsidiary
after the date hereof provided that (i) such Guarantee
Obligations existed at the time such corporation became or
was merged with or into a Subsidiary and were not created in
anticipation thereof and (ii) immediately after giving
effect to the acquisition of such corporation by the
Borrower or one of its Subsidiaries no Default shall have
occurred and be continuing;
(e) Guarantee Obligations of the Borrower and the
Receivables Selling Subsidiaries created pursuant to the
Receivables Purchase Documents;
(f) Guarantee Obligations of the Borrower or the
Subsidiaries of the Borrower incurred after the Closing Date
in an aggregate amount not to exceed $5,000,000 at any one
time outstanding (other than as permitted by clause (g)
below) ;
(g) Guarantee Obligations of the Borrower or of any
Subsidiary Guarantor in respect of any obligation of any
other Subsidiary Guarantor; and
(h) Guarantee Obligations of the Borrower in respect
of any obligations of any Subsidiary;
provided that, in the case of any Guarantee Obligation incurred
under clauses (d), (f) or (h), such Guarantee Obligation, when
added to the other Guarantee Obligations incurred under clauses
(d), (f) or (h), does not exceed $10,000,000 and (ii) such
Guarantee Obligation shall be permitted to be incurred only if,
both before and after giving effect to the incurrence thereof, no
Default shall have occurred and be continuing.
SECTION VII.2.4 Liens. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any of its property, revenues or
assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations,
granted pursuant to any Loan Document;
(b) Liens granted to secure payment of Indebtedness
of the type permitted and described in clause (d) of Section
7.2.2 (and securing only those assets that are the subject
of such Capitalized Lease Liabilities);
(c) Liens for taxes, assessments or other
governmental charges or levies not at the time delinquent or
thereafter payable without penalty or being diligently
contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(d) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of
business for sums not overdue for a period of not more than
60 days or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(e) Liens incurred in the ordinary course of
business in connection with workmen's compensation,
unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(f) Liens in existence on the date hereof listed on
Item 7.2.4(f) (Existing Liens) of the Disclosure Schedule,
and replacement Liens securing any Refinanced Indebtedness
permitted by clause (g) of Section 7.2.2 or any Refinanced
Guarantee Obligation permitted by clause (a) of Section
7.2.3, provided that no such Lien (or replacement Lien) is
spread to cover any additional property or assets after the
Closing Date and that the amount of Indebtedness or
Guarantee Obligations (or Refinanced Indebtedness or
Refinanced Guarantee Obligations) secured thereby is not
increased;
(g) Liens securing Indebtedness of Subsidiaries of
the Borrower permitted by clause (d) of Section 7.2.2
incurred to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such
fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by
such Indebtedness, (iii) the amount of Indebtedness secured
thereby is not increased and (iv) the principal amount of
Indebtedness secured by any such Lien shall at no time
exceed 100% of the original purchase price of such property
at the time it was acquired;
(h) Liens on the property or assets of a Person
which becomes or is merged with or into a Subsidiary of the
Borrower after the date hereof securing Indebtedness
permitted by clause (h) of Section 7.2.2, provided that (A)
such Liens existed at the time such Person became or was
merged with or into a Subsidiary and were not created in
anticipation thereof, (B) any such Lien is not spread to
cover any property or assets of such Person after the time
such Person becomes or is merged with or into a Subsidiary,
and (C) the amount of Indebtedness secured thereby is not
increased;
(i) Liens (not otherwise permitted hereunder) on
assets of the Subsidiary Guarantors which secure obligations
not exceeding $5,000,000 in aggregate amount at any time
outstanding and Liens (not otherwise permitted hereunder) on
assets of the Foreign Subsidiaries and Trocano securing
Indebtedness permitted by clause (f)(ii) of Section 7.2.2;
(j) Liens on Sold Receivables created pursuant to
the Receivables Purchase Documents;
(k) easements, rights of way, restrictions and other
similar charges or encumbrances which do not secure any
obligations or interfere in any material respect with the
ordinary conduct of business of the Borrower and its
Subsidiaries or the Revolving Credit Borrowers and their
respective Subsidiaries, in each case taken as a whole;
(l) any Lien arising pursuant to any order of
attachment, distraint or other legal process arising in
connection with court or arbitration proceedings so long as
the execution or other enforcement thereof is effectively
stayed, the claims secured thereby are being contested in
good faith by appropriate proceedings, adequate reserves
have been established with respect to such claims in
accordance with GAAP and no Default would occur as a result
thereof; and
(m) Liens arising under licensing agreements entered
into by any Subsidiary of the Borrower in the ordinary
course of business for the use of Intellectual Property or
other intangible assets of such Subsidiary, and settlements,
permissions, consents to use, and other similar agreements
concerning Intellectual Property or judgements adjudicating
rights in Intellectual Property;
provided, however, that none of the Liens permitted by clauses
(i) or (j) of this Section 7.2.4 shall encumber any Collateral or
subject any Collateral to the terms thereof.
SECTION VII.2.5 Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit
the Leverage Ratio as of the end of any Fiscal Quarter
ending after the Closing Date and occurring during any
period set forth below to be greater than the ratio set
forth opposite such period:
||
Period Leverage Ratio
1/1/99 to 3/31/99 9.25:1
4/1/99 to 6/30/99 9.00:1
7/1/99 and 8.75:1
thereafter
||
(b) Senior Secured Leverage Ratio. The Borrower
will not permit the Senior Secured Leverage Ratio as of the
end of any Fiscal Quarter ending after the Closing Date and
occurring during any period set forth below to be greater
than 2.75:1.
(c) Operating Company Leverage Ratio. The Borrower
will not permit the Operating Company Leverage Ratio as of
the end of any Fiscal Quarter ending after the Closing Date
to be greater than 1.25:1.
(d) Interest Coverage Ratio. The Borrower will not
permit the Interest Coverage Ratio as of the end of any
Fiscal Quarter ending after the Closing Date and occurring
during any period set forth below to be less than the ratio
set forth opposite such period:
Period Interest Coverage
Ratio
1/1/99 to 3/31/99 0.90:1
4/1/99 to 6/30/99 0.95:1
7/1/99 and 1.00:1
thereafter
(e) Consolidated EBITDA. The Borrower will not
permit Consolidated EBITDA of the Borrower and its
Subsidiaries for the four consecutive Fiscal Quarters of the
1998 Fiscal Year to be less than $60,000,000 and for the
four consecutive Fiscal Quarters of the 1999 Fiscal Year to
be less than $68,000,000.
SECTION VII.2.6 Investments. The Borrower will not, and
will not permit any of its Subsidiaries to, make, incur, assume
or suffer to exist any Investment in any other Person, except:
(a) Investments existing on the Closing Date and
identified in Item 7.2.6(a) (Ongoing Investments) of the
Disclosure Schedule and extensions, renewals, modifications
or restatements thereof, provided, however, that no such
extension, renewal, modification or restatement shall (i)
increase the amount of the original loan, advance or
investment, or (ii) adversely affect the interests of the
Lenders with respect to such original loan, advance or
investment or the interests of the Lenders under this
Agreement or any other Loan Document in any respect;
(b) Cash Equivalent Investments;
(c) without duplication, Investments by the Borrower
to the extent permitted as Indebtedness pursuant to Section
7.2.2;
(d) without duplication, Investments permitted as
Capital Expenditures pursuant to Section 7.2.8;
(e) Investments in the form of loans and advances to
officers, directors and other employees of the Borrower or
its Subsidiaries for (i) commissions and travel and
entertainment expenses in the ordinary course of business
and (ii) relocation expenses and other similar expenses in
an aggregate amount for the Borrower and its Subsidiaries
not to exceed $5,000,000 in the aggregate at any one time
outstanding;
(f) as long as no Event of Default has occurred and
is continuing or would result therefrom, loans by the
Borrower or its Subsidiaries to any member of Management of
SFAC, SFC, Parent, the Borrower or any of their respective
Subsidiaries in connection with management incentive plans
or equity investments in SFAC or SFAC New Holdings or
purchases of SFAC Subordinated Debentures or SFC Sub Senior
Subordinated Debentures approved by the Board of Directors
of SFAC New Holdings or SFAC in an aggregate amount not to
exceed $5,000,000 in the aggregate at any one time
outstanding;
(g) if in the reasonable judgment of the Borrower or
any of its Subsidiaries, any customer is deemed to be in a
reorganization or unable to make a timely cash payment on
Indebtedness or other obligations of such customer owing to
it, the Borrower and each of its Subsidiaries may invest in
securities issued by such customer or any affiliate thereof
in lieu of cash payment; provided that the Borrower or such
Subsidiary, as the case may be, has paid no new
consideration (other than forgiveness of Indebtedness or
other obligations) therefor;
(h) consummation of Acquisitions in any Fiscal Year
of the Borrower so long as (A) after giving effect to any
such Acquisition, (i) the Senior Secured Leverage Ratio is
less than or equal to 2.75:1, (ii) the Leverage Ratio
calculated after giving effect to such Acquisition is less
than the Leverage Ratio calculated prior to giving effect to
such Acquisition on a pro forma basis, (iii) the Borrower or
the relevant Subsidiary shall acquire (subject to Section
7.2.1) a majority controlling interest in the Person in
which such Investment was made or increase any such
controlling interest maintained by it in any such Person and
(iv) the chief financial or accounting Authorized Officer of
the Borrower shall have executed and delivered a certificate
to the Administrative Agent substantially in the form of
Exhibit E hereto (including a calculation of the financial
covenant ratios contained in Section 7.2.5 in reasonable
detail) certifying pro forma compliance with the covenants
set forth in Section 7.2.5 for the most recent full Fiscal
Quarter immediately preceding the date of such Acquisition
and certifying that no Default shall have occurred and be
continuing on the date such Investment is made, nor would a
Default result from the making of such Investment, and (B)
the Person in which the Investment is made (i) conducts the
same, similar or related lines of business to those
conducted by Metz and (ii) issues a promissory note (which
shall not be subordinated) to the Borrower or the relevant
Subsidiary (which, in turn, shall issue a promissory note to
the Borrower, which also shall not be subordinated) in an
amount equal to the value of such Investment at such time
(allowing for amounts which must under the circumstances be
invested as capital contributions); provided, however, that
(i) such note is fully secured by all assets of the Person
in which the Investment is being made to the extent
permitted by applicable law, (ii) such note is pledged to
the Collateral Agent on behalf of the Term Loan Lenders
pursuant to the Term Loan Security Documents and (iii) such
security interests securing such note, if any, are
collaterally assigned to the Collateral Agent on behalf of
the Term Loan Lenders;
(i) in respect of Other Bakeries acquired by the
Borrower or any of its Subsidiaries pursuant to an
Investment constituting an Exchanged Bakery Transaction, the
portion of such Investment equal to the fair market value of
the Exchanged Bakery used as consideration by the Borrower
or such Subsidiary, as the case may be, in respect of such
Exchanged Bakery Transaction; and
(j) Investments among SFAC and its direct and
indirect Subsidiaries to consummate the Restructuring;
provided that, no Investment shall be made under clauses (f),
(g), (h) or (i) of this Section 7.2.6 unless, after giving effect
thereto, (i) the representations and warranties set forth in
Section 6.7 and Section 6.12 shall be true and correct in all
material respects and (ii) no Default shall have occurred and be
continuing or would result therefrom.
SECTION VII.2.7 Restricted Payments, etc. On and at all
times after the date hereof:
(a) the Borrower will not, and will not permit any
of its Subsidiaries to, declare, pay or make any dividend or
make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or
any Subsidiary (now or hereafter outstanding), or make any
other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary or on any warrants, options
or other rights with respect to any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower
or any Subsidiary (other than (i) dividends or distributions
payable in its Capital Stock or warrants to purchase its
Capital Stock or (ii) splits or reclassifications of its
Capital Stock into additional or other shares of its Capital
Stock) or apply, or permit any of its Subsidiaries to apply,
any of its funds, property or assets to the purchase,
redemption, exchange, sinking fund or other retirement of,
or agree or permit any of its Subsidiaries to purchase,
redeem or exchange, any shares of any class of Capital Stock
(now or hereafter outstanding) of the Borrower or any
Subsidiary, or warrants, options or other rights with
respect to any shares of Capital Stock (now or hereafter
outstanding) of the Borrower or any Subsidiary; and
(b) the Borrower will not, and will not permit any
of its Subsidiaries to, (i) make any payment or prepayment
of principal of, or make any payment of interest on, any
1993 Senior Note, 10-?% Senior Note, 1995 Senior Note, 11-?%
Senior Note, Subordinated Note or New Subordinated Note to
any holder thereof or trustee therefor (x) prior to the
stated, scheduled date for such payment or prepayment set
forth in the documents and instruments memorializing such
1993 Senior Note, 10-?% Senior Note, 1995 Senior Note, 11-?%
Senior Note, Subordinated Note or New Subordinated Note, (y)
with respect to a payment or prepayment of principal, in an
amount which would exceed the amount of any such payment or
prepayment that would otherwise be permitted hereunder
without giving effect to the Restructuring (plus, in the
case of any New Subordinated Note, the aggregate amount of
additional New Subordinated Notes issued in lieu of paying
cash interest in accordance with the terms thereof), or (z)
which would violate the subordination provisions of such
Subordinated Note or New Subordinated Note, or (ii) redeem,
purchase or defease any 1993 Senior Note, 1995 Senior Note
or Subordinated Note (the foregoing prohibited acts referred
to in clauses (a) and (b) above are herein collectively
referred to as Restricted Payments);
except that, so long as (A) both immediately prior to and after
giving effect to such Restricted Payment, no Default shall have
occurred and be continuing or would result therefrom, (B) after
giving effect to the making of such Restricted Payment, the
Borrower shall be in pro forma compliance with the covenants set
forth in Section 7.2.5 for the most recent full Fiscal Quarter
immediately preceding the date of the payment of such Restricted
Payment for which the relevant financial information has been
delivered pursuant to clauses (a) or (b) of Section 7.1.1, and
(C) the chief financial or accounting Authorized Officer of the
Borrower shall have delivered a certificate to the Agents in form
and substance satisfactory to the Syndication Agent (including a
calculation of the Borrower's compliance with the covenants set
forth in Section 7.2.5) certifying as to the accuracy of clauses
(A) and (B) above:
(i) the Borrower and its Subsidiaries may pay
dividends or distributions in additional shares of its
Capital Stock, provided that such Capital Stock does not by
its terms require the Borrower or such Subsidiary to make
any Restricted Payments in respect thereof other than in the
form of the issuance of additional shares of such Capital
Stock;
(ii) (A) the Borrower may pay cash dividends or
distributions to (X) SFAC, SFC, SFAC New Holdings and SFC
Sub (I) in amounts required for SFAC, SFC, SFAC New Holdings
and SFC Sub to pay when due franchise taxes and other fees
required to maintain their corporate existence and (II) in
an aggregate amount not to exceed $1,000,000 for each Fiscal
Year for the payment of out-of-pocket costs, expenses and
other amounts required to be paid by SFAC, SFC, SFAC New
Holdings and SFC Sub during such Fiscal Year and (Y) SFC
and/or SFAC New Holdings in amounts required for SFC to make
any payment of principal of or interest on any 1993 Senior
Note, 1995 Senior Note or Subordinated Note, as the case may
be, which was not exchanged for a New 11-?% Senior Note, New
12-?% Senior Note or New Subordinated Note on the stated,
scheduled date for such payment and (B) the Special Purpose
Subsidiary may transfer amounts from the Asset Sale Proceeds
Account by way of cash dividends or loans to the Borrower;
(iii) the Borrower may pay cash dividends to SFAC
and/or SFAC New Holdings in an aggregate amount not to
exceed $3,000,000 (the SFAC Dividend Limit), provided that
the proceeds of such dividends shall be used within 30 days
of receipt of such dividends by SFAC or SFAC New Holdings to
repurchase Capital Stock of SFAC or SFAC New Holdings or
SFAC Subordinated Debentures from any member of Management
of SFAC, the Borrower or any of their respective
Subsidiaries or from the estate of a member of Management of
SFAC, the Borrower or any of their respective Subsidiaries
and provided, further, that the SFAC Dividend Limit shall be
increased by the aggregate amount of cash proceeds of any
additional Capital Stock of SFAC or additional SFAC
Subordinated Debentures which are issued to any member of
the Management of SFAC, the Borrower or any of their
respective Subsidiaries so long as such proceeds are
simultaneously contributed by SFAC or SFAC New Holdings to
the capital of the Borrower;
(iv) the Borrower may pay amounts due and payable to
SFAC and/or SFAC New Holdings under the Tax Sharing
Agreements provided that such amounts are paid out by SFAC
and/or SFAC New Holdings to the appropriate taxing authority
within five Business Days of receipt of such amounts from
the Borrower; and
(v) the Borrower and its Subsidiaries may make
Restricted Payments pursuant to the Restructuring.
SECTION VII.2.8 Capital Expenditures, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, make or
commit to make Capital Expenditures in any Fiscal Year, except
Capital Expenditures which do not aggregate in any Fiscal Year in
excess of $45,000,000 plus an amount equal to the lesser of (x)
$5,000,000 and (y) 4% of revenues acquired from Investments made
pursuant to clause (h) of Section 7.2.6 (net of revenues
divested); provided, however, that (i) the amount of Capital
Expenditures permitted to be made in the 1998 Fiscal Year shall
not include Capital Expenditures made in respect of repurchase
obligations under lease and sale-leaseback arrangements in an
amount not to exceed $40,000,000, (ii) to the extent the amount
of Capital Expenditures permitted to be made in any Fiscal Year
pursuant to this Section (other than clause (i) above) exceeds
the aggregate amount of Capital Expenditures actually made during
such Fiscal Year, up to 100% of such excess amount may be carried
forward to (but only to) the next succeeding Fiscal Year (any
such amount to be certified by the Borrower to the Agents in the
Compliance Certificate delivered for the last Fiscal Quarter of
such Fiscal Year, and any such amount carried forward to a
succeeding Fiscal Year shall be deemed to be used after the
Borrower and its Subsidiaries use the amount of Capital
Expenditures permitted by this Section without giving effect to
such carry-forward) and (iii) the amount of Capital Expenditures
permitted to be made from Net Cash Proceeds of Asset Sales
pursuant to clause (A)(ii) of Section 7.2.12 (without duplication
of Investments permitted as Capital Expenditures pursuant to
clause (h) of Section 7.2.6) or Section 7.2.15 shall not be
included for purposes of calculating compliance with this Section
7.2.8.
SECTION VII.2.9 Receivables Subsidiary. The Borrower will
not, and will not permit any of its Subsidiaries to, permit the
Receivables Subsidiary to engage in any business (including,
without limitation, the incurrence of any Indebtedness or the
creation of any Lien on any of its assets) other than the
performance of its obligations under the Receivables Purchase
Documents and all actions reasonably incidental thereto.
SECTION VII.2.10 Take or Pay Contracts. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into
or be a party to any arrangement for the purchase of materials,
supplies, other property or services if such arrangement by its
express terms requires that payment be made by the Borrower or
such Subsidiary regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
SECTION VII.2.11 Consolidation, Merger, etc. The Borrower
will not, and will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division
thereof) except
(a) any Holding Company or Inactive Subsidiary may
be liquidated or dissolved;
(b) any Holding Company may be merged or
consolidated with or into the Borrower or one of its wholly-
owned Subsidiaries which is a Subsidiary Guarantor or a
Revolving Credit Borrower;
(c) any Subsidiary Guarantor may be merged or
consolidated with or into one or more other Subsidiary
Guarantors or a Revolving Credit Borrower;
(d) the Borrower and its Subsidiaries may consummate
transactions permitted by clause (h) of Section 7.2.6; and
(e) the Borrower and its Subsidiaries may consummate
mergers, consolidations and acquisitions pursuant to the
Restructuring.
SECTION VII.2.12 Asset Dispositions, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, sell,
transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, all or any
substantial part of its assets (including accounts receivable and
Capital Stock of Subsidiaries) to any Person, except
(a) such sale, transfer, lease, contribution or
conveyance of such assets is (i) in the ordinary course of
its business (and does not constitute a sale, transfer,
lease, contribution or other conveyance of all or a
substantial part of the assets of the Borrower and its
Subsidiaries or any Revolving Credit Borrower and its
Subsidiaries, in each case, taken as a whole) or is of
obsolete or worn out property or is no longer used or useful
in the Borrower's or the relevant Subsidiary's business or
operations or (ii) permitted by Section 7.2.11 or (iii) by
any Subsidiary of the Borrower to the Borrower, any
Subsidiary Guarantor or a Revolving Credit Borrower or by
the Borrower to any Subsidiary Guarantor or a Revolving
Credit Borrower;
(b) the sale, transfer or discount of Receivables
and Related Property arising pursuant to the Receivables
Purchase Documents;
(c) so long as no Default has occurred and is
continuing, (i) any sale of any portion of the assets or
Capital Stock of (A) Metz, Mothers, Archway or any of their
respective Subsidiaries in excess of the amount set forth in
clause (c)(iv) in the aggregate for all such sales and all
other sales of assets permitted pursuant to clause (c)(iv),
or (B) Boudin, (ii) any sale of duplicative assets,
divisions, operating units or lines of business either owned
by the Borrower or its Subsidiaries or acquired in any
Acquisition to the extent required by any Regulatory
Authority in connection with such Acquisition, (iii) any
sale by the Borrower or any of its Subsidiaries consisting
of the transfer of one or more bakeries to a Person other
than the Borrower or any of its Subsidiaries (such bakery or
bakeries being, an Exchanged Bakery) pursuant to a
transaction (an Exchanged Bakery Transaction) in which the
Borrower or such Subsidiary transferring such Exchanged
Bakery receives consideration therefor constituting, in
whole or in substantial part, one or more other bakeries
(collectively, Other Bakeries); provided, that (A) to the
extent the Borrower or any such Subsidiary receives cash or
assets in addition to the Other Bakeries in connection with
any such Exchanged Bakery Transaction, such cash or other
assets shall, to the extent their aggregate value exceeds
$250,000, constitute Asset Sale Proceeds and shall be
subject to the terms of this Section 7.2.12, (B) to the
extent the Borrower or any such Subsidiary is required to
pay, as consideration for any Other Bakeries being acquired
in such Exchanged Bakery Transaction, additional
consideration (whether in the form of cash or otherwise)
which additional consideration shall be in addition to the
Exchanged Bakery, such additional consideration shall only
be paid if and to the extent permitted pursuant to Section
7.2.8 or clause (h) of Section 7.2.6 and (C) the Borrower's
Board of Directors shall, prior to the consummation of any
Exchanged Bakery Transaction, adopted a resolution
confirming that the total consideration to be received in
connection with such Exchanged Bakery Transaction is at
least equal to the fair market value of such Exchanged
Bakery, and (iv) any sale of any other assets (or any
division or operating unit or line of business) of the
Borrower or any Subsidiary of the Borrower or the Capital
Stock of any Subsidiary of the Borrower from time to time in
an aggregate amount not to exceed $10,000,000; provided,
however, that no term or provision of clause (c)(i) shall
permit the Borrower or any of its Subsidiaries to sell any
portion of the assets or Capital Stock of Metz or any of its
Subsidiaries in excess of the amount set forth in clause
(c)(iv) in the aggregate for all such sales and all other
sales of assets permitted pursuant to clause (c)(iv) of this
Section 7.2.12 (including sales of any portion of the assets
or Capital Stock of Mothers or Archway or any of their
respective Subsidiaries) unless the Asset Sale Proceeds
received from such Asset Sale are either (x) sufficient to
repay in full the outstanding principal amount of all Term
Loans and Revolving II Credit Loans and any outstanding
Revolving I Credit Loans and cash collateralize
Reimbursement Obligations in respect of Revolving Credit
Letters of Credit or (y) greater than or equal to (I) the
Consolidated EBITDA measured at the time of sale for the
latest twelve months immediately prior to such sale
attributable to the line of business contemplated to be sold
multiplied by 6 (such amounts to be certified by the chief
financial or accounting Authorized Officer of the Borrower
in a certificate delivered to the Agents before giving
effect to the contemplated sale); or
(d) the contribution or conveyance of assets
pursuant to the Restructuring so long as the assets of the
Operating Subsidiaries remain as assets of wholly owned,
direct or indirect, Subsidiaries of the Borrower.
Any term or provision hereof to the contrary notwithstanding, and
except as set forth in the penultimate paragraph of this Section
7.2.12 in respect of any sale of any portion of the assets or
Capital Stock of Metz, Mothers, Archway or any of their
respective Subsidiaries in excess of the amount set forth in
clause (c)(iv) of this Section 7.2.12 in the aggregate for all
such sales and all other sales of assets permitted pursuant to
clause (c)(iv) of this Section 7.2.12, with respect to all Asset
Sales of the type described in clause (c) of this Section 7.2.12,
(A) the aggregate Net Cash Proceeds from all such Asset Sales in
excess of $250,000 (collectively, the Asset Sale Proceeds) shall
be deposited in the Asset Sale Proceeds Account and shall be
(i) used to replace the sold, conveyed or transferred assets or
property, (ii) used to consummate one or more Acquisitions or
Investments permitted under clause (h) of Section 7.2.6, (iii)
invested in Capital Expenditures or other long term assets of the
Borrower or Operating Subsidiaries or (iv) applied to prepay the
Term Loans and Revolving II Credit Loans as provided in clause
(c) of Section 3.1.1 or, to the extent required by Section 3.1 of
the Revolving Credit Agreement, to prepay the Revolving I Credit
Loans or cash collateralize Reimbursement Obligations in respect
of Revolving Credit Letters of Credit, in each case within 360
days of the consummation of any such Asset Sale; (B) the
consideration received in connection with each such Asset Sale
shall be at least equal to the fair market value of such assets
or Capital Stock (as determined by the Board of Directors of the
Borrower in good faith, or by a resolution of the Board of
Directors of the Borrower if the fair market value of such assets
or Capital Stock exceeds $5,000,000), and (C) at least 80% of the
consideration (including the assumption of existing indebtedness)
received in connection with each such sale or disposition shall
be received in cash or Cash Equivalent Investments at the time of
such sale or disposition; provided, however, that the amount of
(1) any liabilities (as shown on the Borrower's or such
Subsidiary's most recent balance sheet or in the notes thereto)
of the Borrower or such Subsidiary that are assumed by the
transferee of any such business or assets and (2) any notes or
other obligations of such transferee or Marketable Securities
received by the Borrower or any such Subsidiary from such
transferee that within 30 days of the consummation of the Asset
Sale are converted by the Borrower or such Subsidiary into cash
(to the extent of the cash received), shall be deemed to be cash
for purposes of this provision.
Any sale by the Borrower or any of its Subsidiaries of any
portion of the assets or Capital Stock of Metz, Mothers, Archway
or any of their respective Subsidiaries in excess of the amount
set forth in clause (c)(iv) of this Section 7.2.12 in the
aggregate for all such sales and all other sales of assets
permitted pursuant to clause (c)(iv) of this Section 7.2.12 shall
be subject to the provisions of clauses (B) and (C) of the
preceding paragraph and, concurrently with the receipt of any
Asset Sale Proceeds, the Borrower shall make a mandatory
prepayment of Term Loans and Revolving Credit Loans in an amount
equal to, in the case of an Asset Sale of Metz or any of its
Subsidiaries, 100% of such Asset Sale Proceeds and, in the case
of an Asset Sale of Mothers or Archway or any of their respective
Subsidiaries, 75% of such Asset Sale Proceeds, in each case to be
applied as provided in clause (b) of Section 3.1.2 or as required
by Section 3.1 of the Revolving Credit Agreement; provided, that
the remaining 25% of the Asset Sale Proceeds from an Asset Sale
of Mothers or Archway or any of their respective Subsidiaries may
be used within 360 days of the consummation of such Asset Sale to
(i) replace the sold, conveyed or transferred assets or property,
(ii) consummate one or more Acquisitions or Investments permitted
under clause (h) of Section 7.2.6, (iii) invest in Capital
Expenditures or other long term assets of the Borrower or
Operating Subsidiaries or (iv) for working capital purposes of
the Borrower or any of its Subsidiaries, with the amount of such
Asset Sale Proceeds unused after such 360-day period being
applied as provided in clause (b) of Section 3.1.2 or as required
by Section 3.1 of the Revolving Credit Agreement.
The Borrower agrees to promptly notify the Agents, the Collateral
Agent and the Lenders of each sale or other disposition by any
such Subsidiary of any assets or Capital Stock permitted pursuant
to clause (c) of this Section 7.2.12, the Asset Sale Proceeds
received in respect of such sale or disposition and each
reinvestment of such Asset Sale Proceeds (together with a
description of the business, Capital Expenditures or other long-
term asset in which such Asset Sale Proceeds were so reinvested).
SECTION VII.2.13 Optional Prepayments, Purchases and
Modification of Certain Agreements. Other than as contemplated
by the Restructuring, the Borrower will not, and will not permit
any of its Subsidiaries to, (a) make any optional payment or
prepayment of or redemption, defeasance or purchase of any
indebtedness (other than (i) the Loans, (ii) Indebtedness
permitted by clause (f) of Section 7.2.2, (iii) Indebtedness
permitted by clause (d) of Section 7.2.2 at such time as the
asset acquired with the proceeds of such Indebtedness is sold or
otherwise disposed of or (iv) Indebtedness permitted by clause
(g)(ii) of Section 7.2.2 consisting of any refinancings or
refundings thereof permitted by the terms of clause (g)(ii) of
Section 7.2.2 but only so long as the principal amount of the
Refinanced Indebtedness is not greater than the principal amount
of the refinancing or refunding Indebtedness) or (b) amend,
modify or change, or consent or agree to any amendment,
modification or change to, any of the terms of (1) any Financing
Document (other than any such amendment, modification or change
which would extend the maturity or reduce the amount of any
payment of principal thereunder by the Borrower or any of its
Subsidiaries or which would reduce the rate or extend the date
for payment of interest thereunder payable by the Borrower or any
of its Subsidiaries) or (2) any Management Agreement or the Tax
Sharing Agreement or any schedules, exhibits or agreements
related thereto, in each case which would either increase the
obligations of the Borrower or any of its Subsidiaries or would
adversely affect the rights or remedies of the Agents and the
Lenders hereunder or under any Loan Document, (c) take any action
in violation of any applicable subordination provisions of any
Indebtedness or Guarantee Obligation or (d) (1) deliver any
notice to the trustee under the New 11-1/4% Senior Note Indenture
or the holders of the New 11-1/4% Senior Notes of its offer to
purchase the New 11-?% Senior Notes in accordance with Section
3.9, 4.10 or 4.15 of the New 11-1/4% Senior Note Indenture or (2)
deliver any notice to the trustee under the New 12-1/8% Senior Note
Indenture or the holders of the 11-1/4?% Senior Notes of its offer
to purchase the 11-1/4% Senior Notes in accordance with Section
3.9, 4.10 or 4.15 of the 11-1/4% Senior Note Indenture, (e) deliver
any notice to the trustee under the New Subordinated Note
Indenture or the holders of the New Subordinated Notes of its
offer to purchase the New Subordinated Notes in accordance with
Section 3.09, 4.10 or 4.15 of the New Subordinated Note Indenture
or (f) incur any obligation (contractual or otherwise) to pay, or
otherwise become liable for the payment of, any fees, costs,
expenses or other amounts described in or due under or in
connection with SFAC Pledge Agreement (including, without
limitation, any obligations described in Section 12 thereof).
SECTION VII.2.14 Transactions with Affiliates. The
Borrower will not, and will not permit any of its Subsidiaries
to, enter into, or cause, suffer or permit to exist any
arrangement or contract with any of its other Affiliates unless
such transaction is (a) not otherwise prohibited under the Loan
Documents and (b) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be,
than it would obtain in a comparable arm?s length transaction
with a Person which is not an Affiliate; provided, however, that
this Section 7.2.14 shall not prohibit or restrict (i) any
reasonable employment or consulting agreement or arrangement
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business, (ii) transactions permitted by
Section 7.2.7 and clauses (e) and (f) of Section 7.2.6, (iii) as
long as no Default or Event of Default has occurred and is
continuing or would result therefrom, management fees payable
pursuant to the Management Agreements in an aggregate amount not
to exceed $1,000,000 in any Fiscal Year, (iv) the entering into
or the performance by the Borrower and its Subsidiaries of their
obligations under the Tax Sharing Agreements, (v) transactions
among or between the Borrower and Subsidiaries of the Borrower
that are wholly owned, directly or indirectly, by the Borrower,
(vi) transactions contemplated by the Receivables Purchase
Documents and (vii) transactions contemplated by the
Restructuring.
SECTION VII.2.15 Sale and Leaseback. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into
any agreement or arrangement with any other Person providing for
the leasing by the Borrower or any of its Subsidiaries of real or
personal property which has been or is to be sold or transferred
by the Borrower or any of its Subsidiaries to such other Person
or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or
rental obligations of the Borrower or any of its Subsidiaries;
provided that, there shall be excluded from the operation of this
clause any sale-leaseback arrangements so long as (i) the
aggregate consideration received by the Borrower and its
Subsidiaries for all such sale-leaseback arrangements (including
such sale-leaseback arrangement) since the Closing Date pursuant
to this Section 7.2.15 does not exceed in the aggregate
$1,000,000 and (ii) the Net Cash Proceeds of such sale-leaseback
arrangement (but only if such Net Cash Proceeds, together with
the Net Cash Proceeds of any other sale leaseback arrangements
which are part of a series of related transactions with such sale-
leaseback arrangement, are in excess of $100,000) are deposited
in the Asset Sale Proceeds Account and are (x) invested in
Capital Expenditures or other long-term assets of the Operating
Subsidiaries reasonably related to the conduct of the same,
similar or related lines of business to those conducted by the
Operating Subsidiaries within 360 days of the effective date of
such sale-leaseback arrangement and/or (y) used to prepay the
Term Loans as provided in Section 3.1.1 or, to the extent
required by Section 3.1.1 of the Revolving Credit Agreement, to
prepay the Revolving Credit Loans or cash collateralize
Reimbursement Obligations in respect of Revolving Credit Letters
of Credit.
SECTION VII.2.16 Stock of Subsidiaries. The Borrower will
not permit any Subsidiary to issue any Capital Stock (whether for
value or otherwise) to any Person other than the Borrower or
another wholly-owned Subsidiary.
SECTION VII.2.17 Accounting Changes. The Borrower will
not, and will not permit any of its Subsidiaries to, change their
respective Fiscal Years from the period of twelve consecutive
calendar months ending on December 31.
SECTION VII.2.18 Negative Pledges, Restrictive Agreements,
etc. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into with any Person any agreement, other
than (a) this Agreement and the other Loan Documents, (b) the
Financing Documents (other than the Receivables Purchase
Documents), (c) any Management Agreement, (d), any SFAC
Shareholders Agreement, (e) any Tax Sharing Agreement, (f) the
Receivables Purchase Documents (provided that, except to the
extent provided in subsection 6.10 of the Receivable Sale
Agreement as in effect on the Closing Date and the comparable
provision, if any, of any subsequent Receivable Sale Agreement,
such prohibition or limitation shall only be effective against
the Sold Receivables), (g) any industrial revenue bonds, purchase
money mortgages or Capitalized Lease Liabilities permitted by
this Agreement and the other Loan Documents (in which cases under
this clause (g), any prohibition or limitation shall only be
effective against the assets financed thereby) or (h) any license
or other arrangement permitted by this Agreement and the other
Loan Documents concerning Intellectual Property or other
intangible assets (provided that any such prohibition or
limitation shall only be effective against such Intellectual
Property or assets), which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired.
SECTION VII.2.19 Holding Company Status. The Borrower will
not, and will not permit any of the Inactive Subsidiaries or the
Holding Companies to conduct, transact or otherwise engage in any
business or operations, or own, lease, manage or otherwise
operate any properties or assets, other than, in the case of the
Borrower, (a) the consummation of the Restructuring and
transactions incidental thereto, (b) the entering into and
performance of its obligations under the Financing Documents, any
Management Agreement, any SFAC Shareholders Agreement, any Tax
Sharing Agreement, the Receivables Purchase Documents and the
Loan Documents to which it is a party, the agreements and
instruments creating, evidencing or governing any Refinanced
Indebtedness permitted to be incurred by the Borrower by clause
(g) of Section 7.2.2 and any other document, agreement or
instrument directly related to any of the foregoing, (c)
ownership of its Subsidiaries and the Receivables Subsidiary, (d)
Indebtedness expressly permitted to be incurred by the Borrower
by Section 7.2.2 and Guarantee Obligations expressly permitted to
be incurred by the Borrower by Section 7.2.3, (e) Liens expressly
permitted to be created by the Borrower pursuant to Section
7.2.4, (f) the payment of dividends on its Capital Stock to the
extent permitted by Section 7.2.7 and by law and the Contractual
Obligations to which it is subject, (g) the sale or issuance of
its Capital Stock (including its preferred stock) so long as no
Default or Event of Default would occur as a result thereof and
to the extent permitted by this Agreement, (h) business,
operations or activities incidental to or connected with the
foregoing and (i) any other activities otherwise permitted by
this Agreement.
SECTION VII.3 Negative Covenants of Special Purpose
Subsidiary. The Borrower agrees with the Agents, the Collateral
Agent and each Lender that, until all Obligations have been paid
and performed in full, the Commitments have terminated and the
Revolving Credit Letters of Credit have (x) expired or been
returned to the Issuer or (y) been cash collateralized to the
reasonable satisfaction of the Collateral Agent and the Issuer,
the Borrower will, and will cause the Special Purpose Subsidiary
to, perform the obligations set forth in this Section 7.3.
SECTION VII.3.1 Business Activities. Except as otherwise
provided in this Agreement, the Special Purpose Subsidiary shall
not engage in any business activity other than entering into the
Asset Sale Proceeds Account Agreement and performing all of its
obligations thereunder.
SECTION VII.3.2 Creation of Indebtedness; Guarantees. The
Special Purpose Subsidiary shall not create, incur, assume or
suffer to exist any Indebtedness other than Indebtedness approved
in writing by all Lenders. Without the prior written consent of
the Lenders, the Special Purpose Subsidiary shall not assume,
guarantee, endorse or otherwise be or become directly or
contingently liable for the obligations of any Person by, among
other things, agreeing to purchase any obligation of another
Person, agreeing to advance funds to such Person or causing or
assisting such Person to maintain any amount of capital, in each
case, except as otherwise provided in this Agreement or any other
Loan Document.
SECTION VII.3.3 Subsidiaries. The Special Purpose
Subsidiary shall not form, or cause to be formed, any
Subsidiaries.
SECTION VII.3.4 Issuance of Stock. The Special Purpose
Subsidiary shall not issue or allow the issuance of any shares of
its Capital Stock or rights, warrants or options in respect of
its Capital Stock, other than the shares of common stock which
have been pledged to the Lenders under the Borrower Pledge
Agreement.
SECTION VII.3.5 Mergers. The Special Purpose Subsidiary
shall not consolidate with or merge into any Person or transfer
all or any material portion of its assets to any Person or
liquidate or dissolve.
SECTION VII.3.6 Other Activities. The Special Purpose
Subsidiary shall not:
(a) sell, transfer, exchange or otherwise dispose of
any of its assets except as permitted under the Loan
Documents and under its Certificate of Incorporation; or
(b) engage in any business or activity other than as
contemplated by this Agreement and as permitted under its
Certificate of Incorporation.
SECTION VII.3.7 Insolvency. Neither SFAC, SFC, the Parent,
the Borrower, the Special Purpose Subsidiary nor any other
Subsidiary of the Borrower shall commence with respect to the
Special Purpose Subsidiary any case, proceeding or other action
(A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to the bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
corporation or other relief with respect to it or (B) seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets,
or make a general assignment for the benefit of its creditors.
Neither SFAC, SFC, the Parent, the Borrower, the Special Purpose
Subsidiary nor any other Subsidiary of the Borrower shall take
any action in furtherance of, or indicating the consent to,
approval of, or acquiescence in any of the acts set forth above.
The Special Purpose Subsidiary shall not admit in writing its
inability to pay its debts.
SECTION VII.3.8 ERISA. The Special Purpose Subsidiary
shall not contribute or incur any obligation to contribute to, or
incur any liability in respect of, any Plan.
SECTION VII.3.9 Dividends. Except as expressly provided in
this Agreement or in any other Loan Document, the Special Purpose
Subsidiary shall not declare or make payment of (i) any dividend
or other distribution on or in respect of any shares of its
Capital Stock, or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of any option, warrant or
other right to acquire shares of its Capital Stock unless (in
each case) at the time of such declaration or payment (and after
giving effect thereto) no amount payable by SFAC, SFC, the
Parent, the Borrower or any Revolving Credit Borrower under any
Loan Document is then due and owing but unpaid.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1 Listing of Events of Default. Each of the
following events or occurrences described in this Section 8.1
shall constitute an Event of Default.
SECTION VIII.1.1 Non-Payment of Obligations. The Borrower
shall default in the payment or prepayment when due of (a) any
principal of any Term Loan; or (b) any Obligor (including the
Borrower) shall default in the payment when due of any interest
or commitment fee with respect to the Term Loans or of any other
monetary Obligation and such default shall continue unremedied
for a period of three Business Days.
SECTION VIII.1.2 Breach of Warranty. Any representation or
warranty of the Borrower or any other Obligor made or deemed to
be made hereunder or in any other Term Loan Document executed by
it or any other writing or certificate (including the Closing
Date Certificate) furnished by or on behalf of the Borrower or
any other Obligor to the Agents, the Collateral Agent, the
Arranger or any Term Loan Lender for the purposes of or in
connection with this Agreement or any such other Term Loan
Document (including any certificates delivered pursuant to
Article V), is or shall be incorrect in any material respect when
made or deemed to have been made.
SECTION VIII.1.3 Non-Performance of Certain Covenants and
Obligations. The Borrower shall default in the due performance
and observance of any of its obligations under Section 7.1.7,
7.1.8, 7.1.9 or 7.2; or SFAC shall default in the due performance
and observance of any of its obligations under Section 2 of the
SFAC Agreement.
SECTION VIII.1.4 Non-Performance of Other Covenants and
Obligations. The Borrower or any other Obligor shall default in
the due performance and observance of any other agreement
contained herein or in any other Term Loan Document executed by
it, and such default shall continue unremedied for a period of
30 days after notice thereof shall have been given to the
Borrower by the any Agent, the Collateral Agent or any Term Loan
Lender.
SECTION VIII.1.5 Default on Other Indebtedness. A default
shall occur (i) in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise,
of any Indebtedness (other than Indebtedness described in
Section 8.1.1) of the Borrower or any of the Subsidiaries of the
Borrower having a principal amount, individually or in the
aggregate, in excess of $5,000,000, or (ii) a default shall occur
in the performance or observance of any obligation or condition
with respect to such Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of
time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause
or declare such Indebtedness to become due and payable prior to
its expressed maturity.
SECTION VIII.1.6 Judgments. Any judgment or order for the
payment of money in excess of $5,000,000 (not covered by
insurance from a responsible insurance company that is not
denying its liability with respect thereto) shall be rendered
against the Borrower or any of the Subsidiaries of the Borrower
and remain unpaid and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order,
or (ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
SECTION VIII.1.7 Pension Plans. Any of the following
events shall occur with respect to any Pension Plan: (i) the
termination of any Pension Plan if, as a result of such
termination, the Borrower or any Subsidiary of the Borrower would
be required to make a contribution to such Pension Plan, or would
reasonably expect to incur a liability or obligation to such
Pension Plan, in excess of $1,000,000, or (ii) a contribution
failure occurs with respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of ERISA in an amount in
excess of $1,000,000.
SECTION VIII.1.8 Change in Control. Any Change in Control
shall occur.
SECTION VIII.1.9 Bankruptcy, Insolvency, etc. The Borrower
or any of its Subsidiaries or any other Obligor shall
(a) apply for, approve, consent to, or acquiesce in,
the appointment of a trustee, receiver, sequestrator or
other custodian for the Borrower, any such Subsidiary or any
other Obligor or any property of any thereof, or make a
general assignment for the benefit of creditors;
(b) in the absence of such application, approval,
consent, acquiescence or assignment, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator
or other custodian for the Borrower, any such Subsidiary or
any other Obligor or for a substantial part of the property
of any thereof, and (x) such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days or
(y) the Borrower, any such Subsidiary or any other Obligor
takes any action in furtherance of such appointment,
provided that the Borrower, each such Subsidiary and each
other Obligor hereby expressly authorizes the Collateral
Agent and each Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;
(c) permit or suffer to exist the commencement of
any bankruptcy, reorganization, debt arrangement or other
case or proceeding under any bankruptcy or insolvency law,
or any dissolution, winding up or liquidation proceeding, in
respect of the Borrower or any of its Subsidiaries or any
other Obligor, and, if any such case or proceeding is not
commenced by the Borrower or such Subsidiary or such other
Obligor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Subsidiary or such
other Obligor (or the Borrower, any such Subsidiary or any
other Obligor shall take any action in furtherance of any of
the foregoing) or shall result in the entry of an order for
relief or shall remain for 60 days undismissed; provided
that the Borrower, each such Subsidiary and each other
Obligor hereby expressly authorizes the Collateral Agent and
each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents;
(d) take any action (corporate or otherwise)
authorizing any of the foregoing; or
(e) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, its
debts as they become due.
SECTION VIII.1.10 Impairment of Security, etc. Except as
provided in Section 10.17, any Term Loan Security Document shall
(except in accordance with its terms), in whole or in part, cease
to be effective or cease to be the legally valid, binding and
enforceable obligation of SFAC, SFC, the Parent, the Borrower or
any other Obligor, as the case may be; SFAC, SFC, the Parent, the
Borrower or any other Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding
nature or enforceability; or, except as permitted under any Term
Loan Security Document, any Lien securing any Term Loan
Obligation shall, in whole or in part, cease to be a perfected
first priority Lien.
SECTION VIII.1.11 Revolving Credit Event of Default.
(i) Any Revolving Credit Event of Default shall have occurred and
be continuing; or (ii) any "termination event" under and as
defined in the Receivables Sale Agreement as in effect on the
Closing Date, or any event entitling the Persons financing the
Receivables to stop funding the purchase of Receivables from all
sellers of Receivables under any subsequent Receivables Sale
Agreement, shall have occurred and be continuing.
SECTION VIII.2 Action if Bankruptcy, etc. If any Event of
Default described in clauses (a) through (d) of Section 8.1.9
shall occur with respect to any Obligor, the outstanding
principal amount of all outstanding Term Loans and all other Term
Loan Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION VIII.3 Action if Other Event of Default. If any
Event of Default (other than an Event of Default described in
clauses (a) through (d) of Section 8.1.9 with respect to any
Obligor) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon
the direction of the Required Term Loan Lenders, shall by notice
to the Borrower declare all or any portion of the outstanding
principal amount of the Term Loans and other Obligations to be
due and payable, whereupon the full unpaid amount of such Term
Loans and other Term Loan Obligations which shall be so declared
due and payable shall be and become immediately due and payable,
without further notice, demand or presentment.
ARTICLE IX
THE AGENTS
SECTION IX.1 Actions. Each Term Loan Lender hereby
appoints DLJ as its Syndication Agent and Collateral Agent and
ABN as its Administrative Agent under and for purposes of this
Agreement, the Term Notes and each other Loan Document. Each
Term Loan Lender authorizes the Agents and the Collateral Agent
to act on behalf of such Term Loan Lender under this Agreement,
the Term Notes and each other Loan Document and, in the absence
of other written instructions from the Required Term Loan Lenders
received from time to time by the Agents and the Collateral Agent
(with respect to which each of the Agents and the Collateral
Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise
such powers hereunder and thereunder as are specifically
delegated to or required of the Agents and the Collateral Agent
by the terms hereof and thereof, together with such powers as may
be reasonably incidental thereto. Each Term Loan Lender
acknowledges and consents to DLJ's acting as Syndication Agent
and Collateral Agent and ABN's acting as Administrative Agent for
the Revolving Credit Lenders under the Revolving Credit Agreement
and the other Revolving Credit Documents. Each Term Loan Lender
hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Agents and the Collateral Agent, ratably
in accordance with the principal amount of Term Loans held by
such Term Loan Lender, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, either of the Agents or the
Collateral Agent in any way relating to or arising out of this
Agreement, the Term Notes and any other Loan Document, including
reasonable attorneys' fees, and as to which any Agent is not
reimbursed by the Borrower or any other Obligor (and without
limiting the obligation of the Borrower or any other Obligor to
do so); provided, however, that no Term Loan Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from such Agent's or the
Collateral Agent's gross negligence or willful misconduct. The
Agents and the Collateral Agent shall not be required to take any
action hereunder, under the Term Notes or under any other Loan
Document, or to prosecute or defend any suit in respect of this
Agreement, the Term Notes or any other Loan Document, unless it
is indemnified hereunder to its satisfaction; provided, however,
that, notwithstanding the foregoing, (i) no Agent or the
Collateral Agent shall be obligated to take any action which is
inconsistent with the terms of this Agreement or any Loan
Document, (ii) no Agent or the Collateral Agent shall be
obligated to take any action which exposes it to personal
liability or which, in its judgment is contrary to applicable
law, and (iii) no Agent or Collateral Agent shall have any right
or be obligated or entitled to enforce any right or remedy
contained herein, in any Loan Document or available at law or
equity (other than the rights of set off) except through the
Collateral Agent who is hereby granted sole and exclusive
authority on behalf of the Agents with respect thereto. If any
indemnity in favor of either of the Agents or the Collateral
Agent shall be or become, in such Agent's or the Collateral
Agent's determination, inadequate, the Agents or the Collateral
Agent may call for additional indemnification from the Term Loan
Lenders and cease to do the acts indemnified against hereunder
until such additional indemnity is given.
SECTION IX.2 Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Term Loan Lender by 5:00 p.m., New
York City time, on the day prior to a Borrowing that such Term
Loan Lender will not make available the amount which would
constitute its Term Loan Percentage of such Borrowing on the date
specified therefor, the Administrative Agent may assume that such
Term Loan Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If and to the
extent that such Term Loan Lender shall not have made such amount
available to the Administrative Agent, such Term Loan Lender and
the Borrower severally agree to repay the Administrative Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Administrative
Agent made such amount available to the Borrower to the date such
amount is repaid to the Administrative Agent, at the interest
rate applicable at the time to Term Loans comprising such
Borrowing.
SECTION IX.3 Exculpation. None of the Agents, the
Collateral Agent or the Arranger nor any of their
respective directors, officers, employees or Agents shall be
liable to any Term Loan Lender for any action taken or omitted to
be taken by it under this Agreement or any other Term Loan
Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence, nor responsible for
any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, sufficiency, validity or due
execution of this Agreement or any other Term Loan Document, nor
for the creation, perfection or priority of any Liens purported
to be created by any of the Term Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the
performance by the Borrower of its obligations hereunder or under
any other Term Loan Document. Any such inquiry which may be made
by any Agent or Collateral Agent shall not obligate it to make
any further inquiry or to take any action. No Agent or the
Collateral Agent shall have any duties or responsibilities except
those specifically set forth in this Agreement and the other Loan
Documents and shall not by reason of the relationship established
herein be a trustee or fiduciary of any other Agent, the
Collateral Agent or any Lender. Unless it specifically agrees to
do so in writing, no Agent or the Collateral Agent shall be
obligated to initiate, conduct or supervise any litigation or
collection proceedings, whether in bankruptcy or otherwise, any
work-out or post-default negotiations or take any other similar
actions; provided, that, at the written request of the Required
Term Loan Lenders, the Administrative Agent shall be obligated to
foreclose upon or set off against the cash collateral deposited
with it under clause (b) of Section 3.1.2 in accordance with
Section 4.9. Each Agent and the Collateral Agent shall be
entitled to rely: (a) upon any certification, notice or other
communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person
or Persons; and (b) upon advice and statements of legal counsel,
independent accountants and other experts selected by it in good
faith. As to the matters not expressly provided for by this
Agreement or any Term Loan Document, each Agent and Collateral
Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions
signed by the Required Term Loan Lenders; and such instructions
of the Required Term Loan Lenders and any action taken or failure
to act pursuant thereto shall be binding on all of the Term Loan
Lenders.
SECTION IX.4 Successor. The Administrative Agent, the
Syndication Agent and the Collateral Agent may resign as such at
any time upon at least 30 days prior notice to the Borrower, the
Syndication Agent and all Term Loan Lenders and, in the case of
the Administrative Agent, the Collateral Agent, and in the case
of the Collateral Agent, the Administrative Agent. If the
Administrative Agent, the Syndication Agent or the Collateral
Agent at any time shall resign, the Required Term Loan Lenders
may, with the prior consent of the Borrower and the Syndication
Agent (which consents shall not be unreasonably withheld or
delayed), appoint another Lender as a successor Administrative
Agent or Collateral Agent which shall thereupon become the
Administrative Agent, Syndication Agent or the Collateral Agent
hereunder. If no successor Administrative Agent, Syndication
Agent or Collateral Agent shall have been so appointed by the
Required Term Loan Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's, Syndication Agent's or Collateral Agent's giving notice
of resignation, then the retiring Administrative Agent,
Syndication Agent or Collateral Agent may, on behalf of the Term
Loan Lenders, appoint a successor Administrative Agent or
Collateral Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of
at least $500,000,000. Notwithstanding the foregoing, for so
long as ABN shall act as Administrative Agent, if no successor
Administrative Agent has been named and accepted its appointment
as Administrative Agent, then ABN shall be permitted to resign
and the Syndication Agent or the Collateral Agent shall succeed
to the responsibilities of ABN as Administrative Agent; provided,
that at no time during the period commencing with the
Administrative Agent tendering its notice of resignation and
ending at the time that a successor Administrative Agent is
named, may DLJ resign as either the Syndication Agent or
Collateral Agent. Upon the acceptance of any appointment as
Administrative Agent, Syndication Agent or Collateral Agent
hereunder by a successor Administrative Agent, Syndication Agent
or Collateral Agent, such successor Administrative Agent,
Syndication Agent or Collateral Agent shall be entitled to
receive from the retiring Administrative Agent, Syndication Agent
or Collateral Agent such documents of transfer and assignment as
such successor Administrative Agent, Syndication Agent or
Collateral Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, Syndication
Agent or Collateral Agent, and the retiring Administrative Agent,
Syndication Agent or Collateral Agent shall be discharged from
its duties and obligations under this Agreement. After any
retiring Administrative Agent's, retiring Syndication Agent's or
Collateral Agent's resignation hereunder as the Administrative
Agent, Syndication Agent or Collateral Agent, the provisions of
(a) this Article IX shall inure to its benefit as to
any actions taken or omitted to be taken by the retiring
Administrative Agent, retiring Syndication Agent or retiring
Collateral Agent while it was the Administrative Agent, the
Syndication Agent or the Collateral Agent under this
Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to
inure to its benefit.
SECTION IX.5 Term Loans by each Agent and the Collateral
Agent. Each Agent and the Collateral Agent shall have the same
rights and powers with respect to (x) the Term Loans made by it
or any of its Affiliates, and (y) the Term Notes held by it or
any of its Affiliates as any other Term Loan Lender and may
exercise the same as if it were not an Agent or the Collateral
Agent. Each Agent and the Collateral Agent and each of their
respective Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or
any Subsidiary or Affiliate of the Borrower as if such Agent or
Collateral Agent were not an Agent or Collateral Agent hereunder.
SECTION IX.6 Credit Decisions. Each Term Loan Lender
acknowledges that it has, independently of each Agent, the
Collateral Agent, the Documentation Agent, the Arranger and each
other Term Loan Lender, and based on such Term Loan Lender's
review of the financial information of the Borrower, this
Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Term Loan Lender) and such other
documents, information and investigations as such Term Loan
Lender has deemed appropriate, made its own credit decision to
extend its commitment to make a Term Loan. Each Term Loan Lender
also acknowledges that it will, independently of each Agent, the
Collateral Agent, the Arranger, the Documentation Agent and each
other Term Loan Lender, and based on such other documents,
information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan
Document.
SECTION IX.7 Copies, etc. Either Agent or the Collateral
Agent shall give prompt notice to each Term Loan Lender of each
notice or request required or permitted to be given to such Agent
or the Collateral Agent by the Borrower pursuant to the terms of
this Agreement (unless concurrently delivered to the Term Loan
Lenders by the Borrower). To the extent that either Agent or the
Collateral Agent receives any document or instrument or other
communication for distribution to the Term Loan Lenders, such
Agent or the Collateral Agent will distribute to each Term Loan
Lender each document or instrument received for its account and
copies of all other communications received by such Agent or the
Collateral Agent from the Borrower for distribution to the Term
Loan Lenders by such Agent or the Collateral Agent in accordance
with the terms of this Agreement (except, in the case of non-
public information, as any such Term Loan Lender shall have
notified the Borrower and such Agent or the Collateral Agent in
writing that such Term Loan Lender shall not be furnished with
such document or instrument). Except for notices, reports and
other documents and information expressly required to be
furnished to the Lenders by an Agent or the Collateral Agent
hereunder or under a Loan Document, no Agent or the Collateral
Agent shall have any duty or responsibility to provide any Agent
or the Collateral Agent or Lender with any credit or other
information concerning the affairs, financial condition or
business of the Borrower (or any of their Affiliates) which may
come into the possession of such Agent or the Collateral Agent or
any of their Affiliates.
SECTION IX.8 The Syndication Agent, the Documentation
Agent, the Administrative Agent and the Collateral Agent.
Notwithstanding anything else to the contrary contained in this
Agreement or any other Loan Document, the Agents, the Collateral
Agent and the Documentation Agent, in their respective capacities
as such, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document
nor any fiduciary relationship with any Term Loan Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against either Agent, the Collateral Agent or the
Documentation Agent as applicable, in such capacity except as are
explicitly set forth herein or in the other Loan Documents.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1 Waivers, Amendments, etc. The provisions of
this Agreement and of each other Term Loan Document may from time
to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Borrower and each Obligor party thereto and by the Required Term
Loan Lenders; provided, however, that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Term Loan Lenders or
by the Required Term Loan Lenders shall be effective unless
consented to by each Term Loan Lender;
(b) modify this Section 10.1, or clause (i) of
Section 10.10, change the definition of Required Term Loan
Lenders, increase any Term Loan Commitment Amount or the
Term Loan Percentage of any Term Loan Lender, release all or
substantially all of the Term Loan Collateral (except in
each case as otherwise specifically provided in this
Agreement or applicable Term Loan Security Document) or
extend the Term Loan Commitment Termination Date, shall be
made without the consent of each Term Loan Lender affected
thereby;
(c) extend the due date for, or reduce the amount or
application of, any scheduled repayment or prepayment of
principal of or interest on any Term Loan or reduce the
principal amount of or rate of interest on any Term Loan,
shall be made without the consent of the holder of the Term
Note evidencing such Term Loan;
(d) affect adversely the interests, rights or
obligations of any Agent, the Collateral Agent or the
Arranger (in its capacity as Agent, the Collateral Agent or
the Arranger), unless consented to by such Agent, the
Collateral Agent or the Arranger, as the case may be;
(e) amend, modify or waive the provisions of clause
(d) of Section 3.1.1 or the penultimate paragraph of Section
7.2.12 without the consent of each Term Loan Lender or
Assignee Term Loan Lender;
(f) amend, modify or waive the provisions of clauses
(a)(i), (a)(iii), (b), (d) or (e) of Section 3.1.1 or clause
(b) of Section 3.1.2 or effect any amendment, modification
or waiver that by its terms adversely affects the rights of
Revolving Credit Lenders differently from those of Term Loan
Lenders, without the consent of the holders of more than 50%
of the aggregate outstanding principal amount of Revolving
II Credit Loans, or, if no Revolving II Credit Loans are
outstanding, Revolving Credit Lenders holding more than 50%
of the Revolving II Credit Commitments; or
(g) amend, modify or waive the provisions of Section
7.1, 7.2, or 7.3 without the consent of the Required
Revolving Credit Lenders.
No failure or delay on the part of any Agent, the Collateral
Agent, any Term Loan Lender or the holder of any Term Note in
exercising any power or right under this Agreement or any other
Term Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of
any other power or right. No notice to or demand on the Borrower
in any case shall entitle it to any notice or demand in similar
or other circumstances. No waiver or approval by any Agent, the
Collateral Agent any Term Loan Lender or the holder of any Term
Note under this Agreement or any other Term Loan Document shall,
except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION X.2 Notices. All notices and other communications
provided to any party hereto under this Agreement or any other
Term Loan Document shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address
or facsimile number set forth on Schedule II hereto or, in the
case of a Term Loan Lender that becomes a party hereto after the
date hereof, as set forth in the Lender Assignment Agreement
pursuant to which such Term Loan Lender becomes a Term Loan
Lender hereunder or at such other address or facsimile number as
may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid
or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted (and
telephonic confirmation of receipt thereof has been received).
SECTION X.3 Payment of Costs and Expenses. The Borrower
agrees to pay on demand all reasonable expenses of each of the
Agents and the Collateral Agent (including the reasonable fees
and out-of-pocket expenses of counsel to the Agents and the
Collateral Agent and of local or foreign counsel, if any, who may
be retained by counsel to the Agents and the Collateral Agent) in
connection with
(a) the syndication by the Syndication Agent and the
Arranger of the Term Loans, the negotiation, preparation,
execution and delivery of this Agreement and of each other
Term Loan Document, including schedules and exhibits, and
any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Term Loan
Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are
consummated;
(b) the filing, recording, refiling or rerecording
of each Mortgage, each Pledge Agreement and each Security
Agreement and/or any Uniform Commercial Code financing
statements relating thereto and all amendments, supplements
and modifications to any thereof and any and all other
documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms
hereof or of such Mortgage, Pledge Agreement or Security
Agreement; and
(c) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Term Loan Document.
The Borrower further agrees to pay, and to save the Agents, the
Collateral Agent and the Term Loan Lenders harmless from all
liability for, any stamp or other similar taxes which may be
payable in connection with the execution or delivery of this
Agreement, the Term Loans made hereunder or the issuance of the
Term Notes or any other Term Loan Documents. The Borrower also
agrees to reimburse each Agent, the Collateral Agent and each
Term Loan Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and legal
expenses) incurred by such Agent, the Collateral Agent or such
Term Loan Lender in connection with (x) the negotiation of any
restructuring or work-out, whether or not consummated, of any
Term Loan Obligations and (y) the enforcement of any Term Loan
Obligations.
SECTION X.4 Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
making of the Term Loans to the Borrower hereby, to the fullest
extent permitted under applicable law, indemnifies, exonerates
and holds each Agent, the Collateral Agent, the Documentation
Agent, the Arranger and each Term Loan Lender and each of their
respective Affiliates, and each of their respective partners,
officers, directors, trustees, employees and agents, and each
other Person controlling any of the foregoing within the meaning
of either Section 15 of the Securities Act of 1933, as amended,
or Section 20 of the Securities Exchange Act of 1934, as amended
(collectively, the Indemnified Parties), free and harmless from
and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses actually incurred in
connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the Indemnified
Liabilities), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Term Loan;
(b) the entering into and performance of this
Agreement and any other Term Loan Document (other than
expenses incurred in the ordinary course of business) by any
of the Indemnified Parties (including any action brought by
or on behalf of the Borrower as the result of any
determination by the Required Term Loan Lenders pursuant to
Article V not to make any Term Loan hereunder);
(c) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by the
Borrower or any of its Subsidiaries of all or any portion of
the stock or assets of any Person, whether or not such
Agent, the Collateral Agent, the Documentation Agent, the
Arranger or such Term Loan Lender is party thereto;
(d) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or
other matter relating to the Borrower's or any of its
Subsidiaries' compliance with or liability under any
Environmental Law or the Release by the Borrower or any of
its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission or release
from, any real property owned or operated by the Borrower or
any Subsidiary thereof of any Hazardous Material present on
or under such property in a manner giving rise to liability
at or prior to the time the Borrower or such Subsidiary
owned or operated such property (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Borrower
or such Subsidiary,
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party's gross negligence or willful
misconduct or any Hazardous Materials that are first
manufactured, emitted, generated, treated, released, stored or
disposed of on any real property of the Borrower or any of its
Subsidiaries or any violation of Environmental Law that first
occurs on or with respect to any real property of the Borrower or
any of its Subsidiaries after such real property is transferred
to any Indemnified Person or its successor by foreclosure sale,
deed in lieu of foreclosure, or similar transfer, except to the
extent such manufacture, emission, release, generation,
treatment, storage or disposal or violation is actually caused by
the Parent, the Borrower or any of the Borrower's Subsidiaries.
The Borrower and its permitted successors and assigns hereby
waive, release and agree not to make any claim, or bring any cost
recovery action against, any Agent, the Collateral Agent, the
Documentation Agent, the Arranger or any Term Loan Lender under
CERCLA or any state equivalent, or any similar law now existing
or hereafter enacted, except to the extent arising out of the
gross negligence or willful misconduct of any Indemnified Party.
It is expressly understood and agreed that to the extent that any
of such Persons is strictly liable under any Environmental Laws,
the Borrower's obligation to such Person under this indemnity
shall likewise be without regard to fault on the part of the
Borrower, to the extent permitted under applicable law, with
respect to the violation or condition which results in liability
of such Person. Notwithstanding anything to the contrary herein,
each Agent, the Collateral Agent, the Documentation Agent, the
Arranger and each Term Loan Lender shall be responsible for any
act or occurrence resulting from their own gross negligence or
willful misconduct with respect to any Hazardous Materials that
are first manufactured, emitted, generated, treated, released,
stored or disposed of on any real property of the Borrower or any
of its Subsidiaries or any violation of Environmental Law that
first occurs on or with respect to any such real property after
such real property is transferred to any Agent, Collateral Agent,
Documentation Agent, Arranger or Term Loan Lender to its
successor by foreclosure sale, deed in lieu of foreclosure, or
similar transfer, except to the extent such manufacture,
emission, release, generation, treatment, storage or disposal or
violation is actually caused by the Parent, the Borrower or any
of the Borrower's Subsidiaries. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law.
SECTION X.5 Survival. The obligations of the Borrower
under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the
obligations of the Term Loan Lenders under Sections 4.8 and 9.1,
shall in each case survive any termination of this Agreement and
the payment in full of all Term Loan Obligations. The
representations and warranties made by the Borrower and each
other Obligor in this Agreement and in each other Term Loan
Document shall survive the execution and delivery of this
Agreement and each such other Term Loan Document.
SECTION X.6 Severability. Any provision of this Agreement
or any other Term Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Term Loan Document
or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION X.7 Headings. The various headings of this
Agreement and of each other Term Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Term Loan Document
or any provisions hereof or thereof.
SECTION X.8 Execution in Counterparts, Effectiveness, etc.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and
all of which shall constitute together but one and the same
agreement.
SECTION X.9 Governing Law; Entire Agreement. THIS
AGREEMENT, THE TERM NOTES AND, EXCEPT TO THE EXTENT OTHERWISE
EXPRESSLY PROVIDED THEREIN, EACH OTHER TERM LOAN DOCUMENT SHALL
EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the Term
Notes and the other Term Loan Documents constitute the entire
understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION X.10 Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided,
however, that (i) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent
of each of the Agents, the Collateral Agent and all Term Loan
Lenders, and (ii) the rights of sale, assignment and transfer of
the Term Loan Lenders are subject to Section 10.11.
SECTION X.11 Sale and Transfer of Term Loans;
Participations in Term Loans. Each Term Loan Lender may assign,
or sell participations in, its Term Loans, so long as each such
assignment or sale is made, on a pro rata basis with the
assignment, or sale of participations in, its Revolving II Credit
Commitments and Revolving II Credit Loans, to one or more other
Persons in accordance with this Section 10.11 and Section 11.11
of the Revolving Credit Agreement; provided, that (a) in the
event any Term Loan Lender (for purposes of this proviso, a
Selling Lender) desires to sell a participation to any
prospective purchaser of any such participation which cannot
purchase a participation in unfunded Revolving II Credit
Commitments (a Restricted Participant), such Selling Lender shall
not be obligated pursuant this Section 10.11 to sell such
Restricted Participant a pro rata share of such Selling Lender's
unfunded Revolving II Credit Commitment so long as such
Restricted Participant is obligated to purchase a pro rata share
of each Revolving II Credit Loan as and when made by such Selling
Lender pursuant to its Revolving II Credit Commitment; provided,
further, that such Restricted Participant shall be obligated to
purchase its pro rata share of such unfunded Revolving II Credit
Commitment whenever it would otherwise be permitted to do so
(including, if applicable, upon the occurrence of an Event of
Default) and (b) in the event any Selling Lender desires to
assign all or any fraction of such Selling Lender's Term Loans to
a Related Fund, such Selling Lender shall not be obligated
pursuant to this Section 10.11 to assign to such Related Fund a
pro rata share of such Selling Lender's unfunded Revolving II
Credit Commitment and Revolving II Credit Loans.
SECTION X.11.1 Assignments. Any Term Loan Lender (the
Assignor Term Loan Lender),
(a) with the written consents of the Borrower and
the Syndication Agent (which consents shall not be
unreasonably delayed or withheld and which consent of the
Syndication Agent shall not be required in the case of
assignments made by or to DLJ or any of its Affiliates and
which consent of the Borrower shall not be required if a
Default of the type described in clauses (a) through (d) of
Section 8.1.9 or an Event of Default shall have occurred and
be continuing), may at any time assign and delegate to one
or more commercial banks or other financial institutions or
funds which are regularly engaged in making, purchasing or
investing in loans or securities, and
(b) with notice to the Borrower and the Agents, but
without the consent of the Borrower or the Agents, may
assign and delegate to any of its Affiliates or Related
Funds or to any other Term Loan Lender or any other
financial institution so long as such assignment and
delegation to such financial institution is made within ten
Business Days of the Closing Date
(each Person described in either of the foregoing clauses as
being the Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an Assignee Term Loan
Lender), all or any fraction of such Term Loan Lender's total
Term Loans and Revolving II Credit Commitments in a minimum
aggregate amount of (i) $1,000,000 or (ii) the then remaining
amount of such Term Loan Lender's Term Loans and Revolving II
Credit Commitments; provided, however, that any such Assignee
Term Loan Lender will comply, if applicable, with the provisions
contained in Section 4.6 and the Borrower, each other Obligor and
the Agents shall be entitled to continue to deal solely and
directly with such Term Loan Lender in connection with the
interests so assigned and delegated to an Assignee Term Loan
Lender until
(c) written notice of such assignment and
delegation, together with payment instructions, addresses
and related information with respect to such Assignee Term
Loan Lender, shall have been given to the Borrower and the
Agents by such Term Loan Lender and such Assignee Term Loan
Lender;
(d) such Assignee Term Loan Lender shall have
executed and delivered to the Borrower and the Agents a
Lender Assignment Agreement, accepted by the Agents;
(e) the processing fees described below shall have
been paid; and
(f) the Administrative Agent shall have registered
such assignment and delegation in the Register pursuant to
clause (b) of Section 2.6.
From and after the date that the Administrative Agent accepts
such Lender Assignment Agreement and such assignment and
delegation is registered in the Register pursuant to clause (b)
of Section 2.6, (x) the Assignee Term Loan Lender thereunder
shall be deemed automatically to have become a party hereto and
to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Term Loan Lender in
connection with such Lender Assignment Agreement, shall have the
rights and obligations of a Term Loan Lender hereunder and under
the other Term Loan Documents, and (y) the Assignor Term Loan
Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender
Assignment Agreement, shall be released from its obligations
hereunder and under the other Term Loan Documents. Within ten
Business Days after its receipt of notice that the Administrative
Agent has received an executed Lender Assignment Agreement, and
upon request pursuant to Section 2.6, the Borrower shall execute
and deliver to the Administrative Agent (for delivery to the
relevant Assignee Term Loan Lender) new Term Notes evidencing
such Assignee Term Loan Lender's assigned Term Loans and, if the
Assignor Term Loan Lender has retained Term Loans hereunder,
replacement Term Notes in the principal amount of the Term Loans
retained by the Assignor Term Loan Lender hereunder (such Term
Notes to be in exchange for, but not in payment of, those Term
Notes then held by such Assignor Term Loan Lender). Each such
Term Note shall be dated the date of the predecessor Term Notes.
The Assignor Term Loan Lender shall mark the predecessor Term
Notes exchanged and deliver them to the Borrower. Accrued
interest on that part of the predecessor Term Notes evidenced by
the new Term Notes, and accrued fees, shall be paid as provided
in the Lender Assignment Agreement. Accrued interest on that
part of the predecessor Term Notes evidenced by the replacement
Term Notes shall be paid to the Assignor Term Loan Lender.
Accrued interest and accrued fees shall be paid at the same time
or times provided in the predecessor Term Notes and in this
Agreement. Such Assignor Term Loan Lender or such Assignee Term
Loan Lender must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in
connection with the concurrent assignment of Term Loans and
Revolving II Credit Commitments in the amount of $1,500, unless
such assignment and delegation is by a Term Loan Lender to its
Affiliate or Related Fund or if such assignment and delegation
consists of a pledge by a Term Loan Lender to a Federal Reserve
Bank (or, in the case of a Term Loan Lender that is an investment
fund, to the trustee under the indenture to which such fund is a
party), as provided below or is otherwise consented to by the
Syndication Agent. Any attempted assignment and delegation not
made in accordance with this Section 10.11.1 shall be null and
void. Nothing contained in this Section 10.11.1 shall prevent or
prohibit any Term Loan Lender from pledging its rights (but not
its obligations to make Term Loans) under this Agreement and/or
its Term Loans and/or its Term Notes hereunder (i) to a Federal
Reserve Bank in support of borrowings made by such Term Loan
Lender from such Federal Reserve Bank, or (ii) in the case of a
Term Loan Lender that is an investment fund, to the trustee under
the indenture to which such fund is a party in support of its
obligations to such trustee, in either case without notice to or
consent of the Borrower or the Agents; provided, however, that
(A) such Term Loan Lender shall remain a Term Loan Lender under
this Agreement and shall continue to be bound by all the terms
and conditions set forth in this Agreement and the other Term
Loan Documents, and (B) any assignment by such trustee shall be
subject to the provisions of clause (a) of this Section 10.11.1.
SECTION X.11.2 Participations. Any Term Loan Lender may at
any time sell to one or more commercial banks or other financial
institutions or funds which are regularly engaged in making,
purchasing or investing in loans or securities (each such
commercial bank and other financial institution or fund being
herein called a "Participant") participating interests in any of
its Term Loans, or other interests of such Term Loan Lender
hereunder; provided, however, that
(a) no participation contemplated in this
Section shall relieve such Term Loan Lender from its
obligations hereunder or under any other Term Loan Document;
(b) such Term Loan Lender shall remain solely
responsible for the performance of its obligations;
(c) the Borrower and each other Obligor and the
Agents shall continue to deal solely and directly with such
Term Loan Lender in connection with such Term Loan Lender's
rights and obligations under this Agreement and each of the
other Term Loan Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Term Loan Lender, or is itself a Term Loan
Lender, shall be entitled to require such Term Loan Lender
to take or refrain from taking any action hereunder or under
any other Term Loan Document, except that such Term Loan
Lender may agree with any Participant that such Term Loan
Lender will not, without such Participant's consent, agree
to (i) any reduction in the interest rate or amount of fees
that such Participant is otherwise entitled to, (ii) a
decrease in the principal amount, or an extension of the
final Stated Maturity Date, of any Term Loan in which such
Participant has purchased a participating interest or
(iii) a release of all or substantially all of the Term Loan
Collateral under the Term Loan Documents, except as
otherwise specifically provided in a Term Loan Document; and
(e) the Borrower shall not be required to pay any
amount under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that
is greater than the amount which it would have been required
to pay had no participating interest been sold.
The Borrower acknowledges and agrees, subject to clause (e)
above, that, to the fullest extent permitted under applicable
law, each Participant, for purposes of Sections 4.3, 4.4, 4.5,
4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a Term Loan
Lender.
SECTION X.12 Other Transactions. Nothing contained herein
shall preclude any Agent, the Collateral Agent or any other Term
Loan Lender from engaging in any transaction, in addition to
those contemplated by this Agreement or any other Term Loan
Document, with the Borrower or any of its Affiliates in which the
Borrower or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION X.13 Forum Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE COLLATERAL
AGENT, THE TERM LOAN LENDERS OR THE BORROWER RELATING THERETO
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY (TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW
YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY TERM LOAN COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT?S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH TERM LOAN COLLATERAL
OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
NEW YORK. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT
MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY IN
RESPECT OF ITS TERM LOAN OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER TERM LOAN DOCUMENTS.
SECTION X.14 Waiver of Jury Trial. THE AGENTS, THE
COLLATERAL AGENT, THE TERM LOAN LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE AGENTS, THE COLLATERAL AGENT, THE TERM LOAN
LENDERS OR THE BORROWER RELATING THERETO. THE BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER TERM LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE
COLLATERAL AGENT AND THE TERM LOAN LENDERS ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER TERM LOAN DOCUMENT.
SECTION X.15 Confidentiality. The Agents, the Collateral
Agent, the Arranger and the Term Loan Lenders shall hold all
non-public information obtained pursuant to or in connection with
this Agreement or obtained by them based on a review of the books
and records of the Borrower or any of its Subsidiaries in
accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure
to any of their examiners, regulators (including, without
limitation, the National Association of Insurance Commissioners),
Affiliates, outside auditors, counsel and other professional
advisors in connection with this Agreement or as reasonably
required by any potential bona fide transferee, participant or
assignee, or in connection with the exercise of remedies under a
Term Loan Document, or as requested by any governmental agency or
representative thereof or pursuant to legal process; provided,
however, that
(a) unless specifically prohibited by applicable law
or court order, each Agent, the Collateral Agent, the
Arranger and each Term Loan Lender shall promptly notify the
Borrower of any request by any governmental agency or
representative thereof (other than any such request in
connection with an examination of the financial condition of
such Agent, Collateral Agent, Arranger and Term Loan Lender
by such governmental agency) for disclosure of any such non-
public information and, where practicable, prior to
disclosure of such information;
(b) prior to any such disclosure pursuant to this
Section 10.15, each Agent, the Collateral Agent, the
Arranger and each Term Loan Lender shall require any such
bona fide transferee, participant and assignee receiving a
disclosure of non-public information to agree in writing
(i) to be bound by this Section 10.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section
10.15;
(c) disclosure may, with the consent of the Agents
and the Borrower, be made by any Term Loan Lender to any
direct or indirect contractual counter parties of such Term
Loan Lender in swap agreements or such contractual
counterparties' professional advisors; provided that such
contractual counterparty or professional advisor agrees in
writing to keep such information confidential to the same
extent required of the Term Loan Lenders hereunder;
(d) except as may be required by an order of a court
of competent jurisdiction and to the extent set forth
therein, no Term Loan Lender shall be obligated or required
to return any materials furnished by the Borrower or any
Subsidiary; and
(e) such non-public information shall not be used
for any purpose other than the transactions contemplated by
this Agreement and the other Loan Documents.
SECTION X.16 Liens on Sold Assets. The Collateral Agent
will execute and deliver to the Borrower, at the Borrower's sole
cost and expense, any releases, termination statements or other
documents reasonably necessary for (a) the release of the Liens
granted by the Security Documents on any property or other assets
sold, transferred or otherwise disposed of in a transaction
permitted by this Agreement and (b) if the property or other
assets sold, transferred or otherwise disposed of in a
transaction permitted by this Agreement consist of all the
Capital Stock of a Subsidiary, the release of such Subsidiary
from the Subsidiary Guaranty, Subsidiary Pledge Agreement,
Subsidiary Security Agreement and Revolving Credit Documents if
such Subsidiary is a party thereto.
SECTION X.17 Termination of SFC's Obligations. Upon the
Restatement Effective Date, SFC shall cease to be a party to the
Existing Term Loan Agreement and all obligations (other than
those expressly stated to survive such termination) of SFC
thereunder and under all other Loan Documents to which SFC is a
party shall terminate and such Loan Documents, with regard to
SFC, shall be of no further force and effect. Upon such
termination, the Collateral Agent shall deliver to SFC (at its
sole expense) the certificates evidencing all of the issued and
outstanding shares of Capital Stock of SFC Sub pledged to the
Collateral Agent pursuant to the Borrower Pledge Agreement
executed by SFC on the Closing Date pledged to the Collateral
Agent pursuant to the Borrower Pledge Agreement as well as any
releases, termination statements or other documents reasonably
necessary to evidence such termination and for the release of
Liens granted to the Collateral Agent pursuant to the Borrower
Security Agreement and the Borrower Pledge Agreement executed by
SFC on the Closing Date on any property or other assets of SFC.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
SFC NEW HOLDINGS, INC.,
a Delaware corporation
By:
Title:
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent,
Collateral Agent and as
Term Loan Lender
By:
Title:
ABN AMRO BANK N.V.,
as the Administrative Agent
By:
Title:
By:
Title:
BANQUE PARIBAS,
as the Documentation Agent
By:
Title:
EQUITABLE LIFE INSURANCE NON PAR HIGH YIELD,
as Term Loan Lender
By:
Name:
Title:
EQUITABLE LIFE INSURANCE ASST. CORP. HIGH YIELD,
as Term Loan Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE HIGH INCOME,
as Term Loan Lender
By:
Name:
Title:
EQUITABLE LIFE ASSURANCE NUTMEG,
as Term Loan Lender
By:
Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND,
as Term Loan Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.,
as Term Loan Lender
By:
Name:
Title:
BAVARIA TRR CORP.,
as Term Loan Lender
By:
Name:
Title:
DEAN WITTER PRIME INCOME TRUST,
as Term Loan Lender
By:
Name:
Title:
SENIOR DEBT PORTFOLIO,
as Term Loan Lender
By: Eaton Vance Management,
as Investment Advisor
By:
Name:
Title:
KZH CNC LLC,
as Term Loan Lender
By:
Name:
Title:
PPM AMERICA,
as Term Loan Lender
By:
Name:
Title:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
as Term Loan Lender
By:
Name:
Title:
GOLDMAN SACHS ASSET MANAGEMENT,
as Term Loan Lender
By:
Name:
Title:
MAGTEN,
as Term Loan Lender
By:
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.,
as Term Loan Lender
By: Angelo, Gordon & Co., L.P.,
as Investment Advisor
By:
Name:
Title:
NORTHWOODS CAPITAL, LIMITED,
as Term Loan Lender
By: Angelo, Gordon & Co., L.P.,
as Collateral Manager
By:
Name:
Title:
FOOTHILL CAPITAL,
as Term Loan Lender
By:
Name:
Title:
OXFORD STRATEGIC INCOME,
as Term Loan Lender
By: Eaton Vance Management,
as Investment Advisor
By:
Name:
Title:
DEBT STRATEGIES FUND II, INC.,
as Term Loan Lender
By:
Name:
Title:
SCHEDULE I
to
Term Loan Agreement
DISCLOSURE SCHEDULE
ITEM 6.6 Material Adverse Effect.
None.
ITEM 6.7 Litigation.
None.
ITEM 6.8 Existing Subsidiaries.
The Clear Lake Bakery, Inc.
Archway Cookies, LLC
Pane Corporation
Metz Baking Company (Iowa)
Metz Baking Company (Delaware)
GWI Holdings, Inc.
GWI, Inc.
MCC-DSD Holdings, Inc.
Mothers Cake & Cookie Co.
Pacific Coast Baking Co., Inc.
Belsea Holdings, Inc.
GSFBC Holdings, Inc.
LANG Holdings, Inc.
GBC Holdings, Inc.
OFBC Holdings, Inc.
SEM Holdings, Inc.
Former VB Holdings, Ltd.
SFFB Holdings, Inc.
SanFran FB, Inc.
Andre-Boudin Bakeries, Inc.
Fisherman's Wharf Sourdough French Bread Bakeries,
Inc.
Boudin International, Inc.
Laura Todd of America
Steve's Drayage
A. Trocano Construction, Inc.
Gelsi, Inc.
San Francisco Bay Area Equipment and Supply
SanFran SB Holdings, Inc.
PBI Holdings, Inc.
San Francisco Baking Cultures
SFSC, Inc.
Larraburu Bakery
ITEM 6.11 Welfare Plans.
None.
ITEM 6.12 Environmental Matters.
None.
ITEM 6.13 Material Intellectual Property.
None.
ITEM 6.19 Concentration and Deposit Accounts.
Metz Baking Company
||
PLANT NAME OF BANK/ADDRESS TYPE OF ACCOUNT ACCOUNT
NUMBER
GENERAL NORWEST BANK IOWA DEPOSIT 134-0020749
OFFICE 600 FOURTH STREET DEPOSIT 134-0022111
P.O. BOX 808 DEPOSIT 134-0031245
SIOUX CITY, IA 51102 DEPOSIT 134-0000535
CHASE MANHATTAN BANK CONCENTRATION 323-061028
55 WATER STREET, 7TH
FLOOR
NEW YORK, NY 10041-0199
CHASE MANHATTAN DELAWARE CONCENTRATION/DIS 6301-447250-
1201 MARKET STREET B 509
WILMINGTON, DE 19801 CONCENTRATION/DIS 6301-447268-
B 509
CONCENTRATION/DIS 6301-447276-
B 509
SIOUX NORWEST BANK IOWA DEPOSIT 134-0020765
CITY 600 FOURTH STREET DEPOSIT 134-0020802
SIOUX CITY, IA 51102 DEPOSIT 134-0000762
NEBRASKA STATE BANK DEPOSIT 972-544-5
2021 DAKOTA AVENUE
P.O. BOX 37
SOUTH SIOUX CITY, NE
68776
FIRST STATE BANK OF DEPOSIT 100-008-157
RUSHMORE
1443 OXFORD STREET
P.O. BOX 725
WORTHINGTON, MN 56187-
0725
NORWEST BANK NEBRASKA DEPOSIT 113-0031165
227 NORFOLK AVE
P.O. BOX 99
NORFOLK, NE 68702-0099
FIRST NATIONAL BANK SD DEPOSIT 126578
332 BROADWAY
P.O. BOX 670
YANKTON, SD 57078-0670
UNITED NEBRASKA BANK DEPOSIT 635052
1464 26TH AVE
P.O. BOX 606
COLUMBUS, NE 68602-0606
COMMERCIAL SAVINGS BANK DEPOSIT 31-452-6
627 ADAMS STREET
P.O. BOX 277
CARROLL, IA 51401-0277
BOATMEN?S BANK DEPOSIT 20-0103-
723 FIRST AVE SOUTH 692402
P.O. BOX U
FORT DODGE, IA 50501-
2025
MERCANTILE BANK OF DEPOSIT 2620154423
WESTERN IOWA
126 GRAND AVE
P.O. BOX 7880
SPENCER, IA 51301-7880
NORWEST BANK IOWA DEPOSIT 202-6387111
191 WEST FIFTH ST
P.O. BOX 360
WATERLOO, IA 50704
FIRST BANK ALBERT LEA DEPOSIT 1-444-1036-
331 S. BROADWAY 2780
P.O. BOX 811
ALBERT LEA, MN 56007-
9971
SIOUX FIRST NATIONAL BANK DEPOSIT 101-545-8
FALLS 100 S PHILLIPS DEPOSIT 101-542-3
DRAWER 1186
SIOUX FALLS, SD 57117-
1186
MARQUETTE BANK OF SOUTH DEPOSIT 144223-109-1
DAKOTA
1103 EAST 8TH STREET
P.O. BOX 5109
SIOUX FALLS, SD 57117
NORWEST BANK SOUTH DAKOTA DEPOSIT 479-0037428
41ST & MINNESOTA DEPOSIT 887-0251360
P.O. BOX 5128 DEPOSIT 097-0019094
SIOUX FALLS, SD 57117- DEPOSIT 088-5004924
5128
FARMERS & MERCHANTS BANK DEPOSIT 03-16144
&
TRUST
35 1ST AVENUE NE
P.O. BOX 877
WATERTOWN, SD 57201-0877
HOME STATE BANK DEPOSIT 100-239-0
1601 EAST HWY 12
P.O. BOX 1620
WILLMAR, MN 56201
FIRST BANK ABERDEEN DEPOSIT 10-57183
320 SOUTH FIRST STREET
ABERDEEN, SD 57401
FIRST NATIONAL BANK & DEPOSIT 109-647
TRUST
P.O. BOX 595
LUVERNE, MN 56156
DRAPER STATE BANK DEPOSIT 29-28387
P.O. BOX 190 DEPOSIT 29-17946
PRESHO, SD 57568
HASTINGS NORWEST BANK NEBRASKA DEPOSIT 112-0012124
747 BURLINGTON DEPOSIT 112-0014517
P.O. BOX 1048
HASTINGS, NE 68902
FIRST BANK & TRUST DEPOSIT 118331
235 S. SANTA FE
P.O. BOX 1337
SALINA, KS 67402-1337
NATIONS BANK DEPOSIT 070000600409
1100 FORT STREET
P.O. BOX 610
HAYS, KS 67601-0610
NATIONS BANK DEPOSIT 733300000285
P.O. BOX N 4
GARDEN CITY, KS 67846-
0460
NATIONS BANK DEPOSIT 333000003626
P.O. BOX 189
LIBERAL, KS 67905-9979
NORWEST BANK NEBRASKA DEPOSIT 114-8001999
202 W. 3RD DEPOSIT 114-8004866
GRAND ISLAND, NE 68103-
0408
FIRST NATIONAL OF KEARNEY DEPOSIT 772434
21 W. 21ST STREET DEPOSIT 587271
P.O. BOX 578
KEARNEY, NE 68848
AMFIRST BANK DEPOSIT 4538
P.O. BOX 1447
MCCOOK, NE 69001
NORWEST BANK WYOMING DEPOSIT 071-7007575
1701 CAPITAL AVENUE
CHEYENNE, WY 82003
COLORADO COMMUNITY FIRST DEPOSIT 4370106607
NATIONAL BANK
130 N. 3RD STREET
P.O. BOX 3000
STERLING, CO 80751
COLORADO COMMUNITY FIRST DEPOSIT 4350010414
NATIONAL BANK
120 E. KIOWA AVENUE
P.O. BOX 550
FORT MORGAN, CO 80701
BANK ONE, SO. GREELEY DEPOSIT 40504902
P.O. BOX 215002
DENVER, CO 80221-9002
BELLEVUE NORWEST BANK NEBRASKA DEPOSIT 115-5063879
1101 GALVIN ROAD DEPOSIT 115-5028723
BELLEVUE, NE 68005 DEPOSIT 610-0137581
BEATRICE NATIONAL BANK & DEPOSIT 230431
TRUST CO.
6TH & LINCOLN
P.O. BOX 100
BEATRICE, NE 68310
PAGE COUNTY STATE BANK DEPOSIT 5594890
120 E. WASHINGTON
BOX 237
CLARINDA, IA 51632
MERCANTILE BANK OF DEPOSIT 7810034392
WESTERN
MISSOURI
201 EAST CHERRY
P.O. BOX 467
NEVADA, MO 64772
CAPITAL CITY BANK & TRUST DEPOSIT 1146634
CO.
3710 SW TOPEKA AVE.
P.O. BOX 1433
TOPEKA, KS 66609
NATIONS BANK DEPOSIT 010161018271
14 W. 10TH ST.
P.O. BOX 419038
KANSAS CITY, MO 64105
MERCANTILE BANK OF WEST DEPOSIT 3350121269
CENTRAL MISSOURI
3615 WEST BROADWAY
P.O. BOX 1147
SEDALIA, MO 65302-1147
MERCANTILE BANK OF ST. DEPOSIT 5800011719
JOSEPH
415 FRANCIS STREET
P.O. BOX 308
ST. JOSEPH, MO 64502
FIRST BANK DEPOSIT 149181323572
210 EAST MILITARY AVE
FREMONT, NE 68025
NORWEST BANK IOWA DEPOSIT 000-7081990
METRO WEST
9801 UNIVERSITY
DES MOINES, IA 50325
HAVELOCK BANK DEPOSIT 252435
LINCOLN, NE 68507
BEATRICE BEATRICE NATIONAL BANK DEPOSIT 230079
523 COURT DEPOSIT 211170
P.O. BOX 100 DEPOSIT 950887
BEATRICE, NE 68310
FIRST NATIONAL BANK OF DEPOSIT 80405803
OMAHA
ONE FIRST NATIONAL CENTER
OMAHA, NE 68102
FERGUS NORWEST BANK DEPOSIT 179-0901685
FALLS MINNESOTA WEST DEPOSIT 179-0900594
220 WASHINGTON AVE WEST
FERGUS FALLS, MN 56537
FIRST BANK DULUTH DEPOSIT 1-400-1118-
2000 W. SUPERIOR ST. 3617
P.O. BOX 19
DULUTH, MN 55801-0019
WESTERN NATIONAL BANK DEPOSIT 3049293
1529 GRAND AVENUE
P.O. BOX 7024
DULUTH, MN 55807-70234
RAMSEY NATIONAL BANK DEPOSIT 123027
314 4TH STREET
P.O. BOX 160
DEVILS LAKE, ND 58301-
0160
NORWEST BANK DEPOSIT 181-0026112
MINNESOTA WEST
110 3RD STREET EAST
THIEF RIVER FALLS, MN
56701
NORWEST BANK DEPOSIT 263-0052572
MINNESOTA WEST
211 WEST HOLMES STREET
DETROIT LAKES, MN 56502
SECURITY STATE BANK DEPOSIT 921-7
701 EAST HOWARD
P.O. BOX 279
HIBBING, MN 55746
NORWEST BANK DEPOSIT 4000469
1920 SOUTH 6TH STREET
P.O. BOX 706
BRAINERD, MN 56401
NORWEST BANK DEPOSIT 095-0011586
MINNESOTA WEST
524 CENTER AVE
P.O. BOX 340
MOOREHEAD, MN 56560
MOUNTAIN IRON FIRST STATE DEPOSIT 1005987
BANK
JUNCTION 69 & HWY 19
P.O. BOX 415
MOUNTAIN IRON, MN 55768-
0415
FIRST NATIONAL BANK OF DEPOSIT 149067
BEMIDJI
502 MINNESOTA AVE.
BEMIDJI, MN 56601
FIRST STATE BANK OF DEPOSIT 00-502-553
ALEXANDRIA
3015 HWY 29 S
ALEXANDRIA, MN 56308
SUPERIOR NATIONAL BANK DEPOSIT 1401386
2820 EAST 2ND STREET
P.O. BOX 2037
SUPERIOR, WI 54880
FIRST WESTERN BANK & DEPOSIT 913029
TRUST
900 SOUTH BROADWAY
P.O. BOX 1090
MINOT, ND 58702-1090
NORWEST BANK DEPOSIT 183-0016547
208 2ND AVE. SW
JAMESTOWN, ND 58401
NATIONAL BANK OF HARVEY DEPOSIT 00-162-675
HARVEY, ND
NORWEST BANK NORTH DAKOTA DEPOSIT 136-0685716
400 EAST BROADWAY AVE
P.O. BOX 6089
BISMARCK, ND 58501
COMMUNITY NATIONAL BANK DEPOSIT 15704
1616 S. WASHINGTON ST.
GRAND FORKS, ND 58201
NORWEST BANK NORTH DAKOTA DEPOSIT 072-0016918
13TH AVE & 25TH ST SOUTH
FARGO, ND 58126
COMMUNITY BANK DEPOSIT 0005000188
SUPERIOR, WI 54880
FIRST AMERICAN BANK OF DEPOSIT 2067831
BRAINERD
321 S. 7TH ST.
P.O. BOX 687
BRAINERD, MN 56401
SALT LAKE FIRST SECURITY BANK OF DEPOSIT 060-00041-05
CITY UTAH DEPOSIT 060-00040-97
FINANCIAL SERVICES DEPOSIT 203-00214-10
41 EAST 100 SOUTH
SALT LAKE CITY, UT 84111
ROSEVILLE NORWEST BANK MINNESOTA DEPOSIT 000-1710020
NORWEST CENTER OFFICE DEPOSIT 000-1710063
SIXTH & MARQUETTE DEPOSIT 635-5008674
BOX B514
MINNEAPOLIS, MN 55479
FIRSTAR - EAU CLAIRE DEPOSIT 912048955
131 SOUTH BARSTOW STREET
EAU CLAIRE, WI 54701
BRILL STATE BANK DEPOSIT 004060
407 W. KNAPP
RICE LAKE, WI 54868
CAPITAL BANK DEPOSIT 2439930
ST. PAUL, MN
FIRST BANK LAKE STREET DEPOSIT 1-731-0254-
2800 E. LAKE STREET 1815
MINNEAPOLIS, MN 55406
LACROSSE NORWEST BANK LACROSSE DEPOSIT 000-0023632
305 FIFTH AVE SOUTH
LACROSSE, WI 54601
EAU NORWEST BANK WISCONSIN DEPOSIT 890-0199435
CLAIRE 204 EAST GRAND AVE
EAU CLAIRE, WI 54701-
3681
MADISON M & I MADISON BANK DEPOSIT 10-0057-5618
4726 E. TOWNE BLVD DEPOSIT 10-0057-5634
P.O. BOX 8998
MADISON, WI 53708-8998
COMMUNITY FIRST BANK DEPOSIT 60000204
3273 CHURCH ST.
STEVENS POINT, WI 54481
THE BARABOO NATIONAL BANK DEPOSIT 101100297
101 THIRD AVE
BARABOO, WI 53913
ASSOCIATED BANK NORTH DEPOSIT 11-3464-7
303 SOUTH FIRST AVE
P.O. BOX 59
WAUSAU, WI 54401
BLACKHAWK STATE BANK DEPOSIT 20017224
400 BROAD STREET
P.O. BOX 719
BELOIT, WI 53511
BANK ONE ROCKFORD DEPOSIT 0825246077
401 E. STATE ST.
P.O. BOX 4900
ROCKFORD, IL 61110
DUBUQUE MERCANTILE BANK OF DEPOSIT 2810000310
DUBUQUE DEPOSIT 2810191019
7TH & LOCUST ST.
P.O. BOX 148
DUBUQUE, IA 52004-0148
AMCORE BANK, SOUTH DEPOSIT 123238
CENTRAL
1625 10TH STREET
P.O. BOX 98
MONROE, WI 53566-0098
NORTHWEST BANK & TRUST DEPOSIT 2072809
COMPANY
100 E. KIMBERLY ROAD
P.O. BOX 8001
DAVENPORT, IA 525808-
8001
GRAND NATIONAL BANK DEPOSIT 4007250215
102 SOUTH GALENA AVE
DIXON, IL 61021
NORWEST BANK IOWA DEPOSIT 507-0442624
101 3RD AVE SW
P.O. BOX 1887
CEDAR RAPIDS, IA 52406
COMMUNITY STATE BANK DEPOSIT 00-00078
1801 FIRST AVENUE
P.O. BOX 488
ROCK FALLS, IL 61071
COMMERCE BANK DEPOSIT 550459991
416 MAIN STREET
PEORIA, IL 61602-1126
SOUTHEAST NATIONAL BANK DEPOSIT 002-174-1
OF
MOLINE
3535 23RD AVE
MOLINE, IL 61265-4494
FIRSTAR BANK DEPOSIT 707851
201 JEFFERSON
P.O. BOX 836
BURLINGTON, IA 52601
SOUTH OTTUMWA SAVINGS DEPOSIT 17777
BANK
320 CHURCH STREET
P.O. BOX 516
OTTUMWA, IA 52501
M&I BANK OF LACROSSE DEPOSIT 3364163
1300 ROSE STREET
P.O. BOX 1536
LACROSSE, WI 54601
NORWEST BANK LACROSSE DEPOSIT 000-0024168
305 FIFTH AVE SOUTH
P.O. BOX 1688
LACROSSE, WI 54601
SOUTH SIDE T&S BANK OF DEPOSIT 109-498
PEORIA
2119 SW ADAMS STREET
PEORIA, IL 61602
MARQUETTE MFC FIRST NATIONAL BANK DEPOSIT 000-496-0
101 W. WASHINGTON ST. DEPOSIT 004-183-0
P.O. BOX 10
MARQUETTE, MI 49855-0010
THE FIRST NATIONAL BANK DEPOSIT 142077
OF
IRON MOUNTAIN
233 STEPHENSON AVE
P.O. BOX 370
IRON MOUNTAIN, MI 49801
THE FIRST NATIONAL BANK DEPOSIT 110-206-0
OF
ST. IGNACE
132 N. STATE STREET
ST. IGNACE, MI 49781
FIRST OF AMERICA BANK- DEPOSIT 00-0378756-6
NORTHERN MICHIGAN
320 ASHMUN
SAULT STE. MARIE, MI
49783-1904
MFC FIRST NATIONAL BANK DEPOSIT 015-816-2
205 W. AURORA ST.
P.O. BOX 587
IRONWOOD, MI 49938-0587
MFC FIRST NATIONAL BANK DEPOSIT 031-058-6
1205 LUDINGTON STREET
P.O. BOX 786
ESCANABA, MI 49829-0786
NORTH COUNTRY BANK & DEPOSIT 0002650622
TRUST
130 S. CEDAR STREET
P.O. BOX 369
MANISTIQUE, MI 49854
FIRST OF AMERICA BANK- DEPOSIT 19-3002248-6
UPPER
PENINSULA
501 WEST SHARON
HOUGHTON, MI 49931
TOMAHAWK COMMUNITY BANK DEPOSIT 200000233
15 EAST WISCONSIN AVE
P.O. BOX 159
TOMAHAWK, WI 54487-0159
NEW FIRST OF AMERICA - METRO DEPOSIT 73-3001157-3
PROCESS SW
ONE DEARBORN SQUARE
KANKAKEE, IL 60901
GREAT LAKES NATIONAL BANK DEPOSIT 8862241494
1301 N. EATON ST.
ALBION, MI
BANK OF AMERICA DEPOSIT 75-97053
231 SOUTH LASALLE ST.
CHICAGO, IL 60697
FIRST OF AMERICA BANK- DEPOSIT 05-1010893-2
MID MICHIGAN
300 CENTER AVENUE
BAY CITY, MI 48708
MICHIGAN NATIONAL BANK DEPOSIT 1939683577
4300 W. SAGINAW HWY
LANSING, MI 48917
NATIONAL BANK OF DETROIT DEPOSIT 265000180363
PORT HURON, MI
MILWAUKEE NORWEST BANK WISCONSIN DEPOSIT 004-0001757
16001 WEST CLEVELAND
AVENUE
NEW BERLIN, WI 53151-
3651
FIRST BANK MILWAUKEE DEPOSIT 1-823-2256-
201 WEST WISCONSIN AVE 5413
MILWAUKEE, WI 53259-1000
FIRST NATIONAL BANK IN DEPOSIT 1974016
MANITOWOC
402 N. 8TH ST.
P.O. BOX 10
MANITOWOC, WI 54221-0010
LINCOLN STATE BANK DEPOSIT 002-022-5482
2266 S. 13TH STREET
MILWAUKEE, WI 53215
M&I MARSHALL & ILSLEY DEPOSIT 122198
BANK
770 N. WATER ST.
MILWAUKEE, WI 53202-3593
MITCHELL BANK DEPOSIT 130577
1039 WEST MITCHELL ST.
MILWAUKEE, WI 53204
M&I BANK NORTHEAST DEPOSIT 680109
2223 MAIN STREET
P.O. BOX 2427
GREEN BAY, WI 54306-2427
COMMUNITY FIRST CREDIT DEPOSIT 132223
UNION
509 N. RICHMOND ST.
P.O. BOX 1487
APPLETON, WI 54913-9973
WAUKESHA STATE BANK DEPOSIT 10203185
100 BANK STREET
P.O. BOX 648
WAUKESHA, WI 53187-0648
BANK ONE DEPOSIT 047111854
300 NORTH MAIN STREET
P.O. BOX 680
OSHKOSH, WI 54902-0680
FIRST FINANCIAL BANK DEPOSIT 4608026070
1200 DELAFIELD ST.
WAUKESHA, WI 53188
Andre Boudin
Bank Accounts
SAN WELLS FARGO BANK DEPOSIT 4518-073417
FRANCISCO CORPORATE BANKING GROUP DEPOSIT 4142-052738
420 MONTGOMERY STREET DEPOSIT 4759606635
9TH FLOOR DEPOSIT 4142-052746
SAN FRANCISCO, CA 94163 DEPOSIT 4142-043348
DEPOSIT 4518-080031
LOMBARD WEST SUBURBAN DEPOSIT 11000-65814
711 SOUTH DEPOSIT 11000-
WESTMORE/MEYERS 6766675
LOMBARD, IL 60148
Mothers Cake and Cookie Co.
Name of Bank/Address Type of Account Account Number
Chase Manhattan Concentration 323-061095
55 Water Street
New York, NY 10041
Chase Manhattan Delaware Concentration/Disb 6301-447243-509
55 Water Street
New York, NY 10041
Chase Manhattan Delaware Concentration/Disb 6301-447235-509
55 Water Street
New York, NY 10041
Wells Fargo Bank Deposit 4142-050012
Business Account Center
P.O. Box 63020
San Francisco, CA 94163
Bank of America Deposit 02510-00293
2000 Broadway
Oakland, CA 94612
Wells Fargo Deposit 0088-537352
Formerly First Interstate
(Portland)
P.O. Box 97
San Leandro, CA 94577
Wells Fargo Deposit 0121-057178
P.O. Box 97
San Leandro, CA 94577
1st Security Deposit 063-00501-28
3655 South State Street
Salt Lake City, UT 84115
SeaFirst Deposit 1292713
P.O. Box 94010
Seattle, WA 98124
H&M Food Systems Company, Inc.
Name of Bank/Address Type of Account Account
Number
Chase Manhattan Concentration 323-061081
55 Water Street
New York, NY 10041
Chase Manhattan Concentration/Disb 6301-447193-
55 Water Street Concentration/Disb 509
New York, NY 10041 6301-447201-
509
Specialty Foods Corporation
Chase Manhattan Concentration 323-250254
55 Water Street
New York, NY 10041
Chase Manhattan Concentration/Disb 6301-441337-
55 Water Street 509
New York, NY 10041
||
ITEM 7.2.2(b) Indebtedness to be Paid.
1. Existing Term Loan Agreement
2. Existing Revolving Credit Agreement
ITEM 7.2.2(g) Existing Indebtedness.
1. The 1993 Senior Notes
2. The 1995 Senior Notes
3. The Senior Subordinated Notes
4.Indebtedness pursuant to the
Non-Negotiable Unsecured
Promissory Notes, dated May
17, 1994, made by Specialty
Foods Corporation in favor of
Fred Walger (aggregate
balance as of 2/28/98 -
$3,401,775)
5.Indebtedness of GWI, Inc. owing to Central Life
Assurance Company pursuant to the Mortgage
dated May 10, 1994 (balance as of 2/28/98 -
$2,422,673)
6.Indebtedness of H&M Food Systems Company, Inc.
pursuant to certain Master Lease Agreements
(balance of 2/28/98 - $770,664)
7.Indebtedness of Metz Baking Company pursuant to
certain Master Lease Agreements (balance as of
2/28/98 - $705,288)
8.Indebtedness of Andre-Boudin Bakeries, Inc. in
favor of P. Simi, R. Simi, P. Ball and K.
Wilkes pursuant to promissory notes dated
September 13, 1993 made by Andre-Boudin
Bakeries, Inc. in favor of such persons
(aggregate balance as of 2/28/98 - $272,278).
9.Letters of Credit -- T-263800, Marc Realty,
$18,000 -- T-275504, Company, $200,000
ITEM 7.2.2(k) Permitted Additional Indebtedness.
The incurrence by the Borrower of
Indebtedness (in addition to Indebtedness
permitted by any other clause of Section 4.09
of 1993 Senior Note Indenture as in effect on
August 13, 1993) in an aggregate principal
amount at any time outstanding not to exceed
the sum of (a) $35 million plus (b) up to $40
million of permanent reductions in
commitments for Senior Revolving Debt (other
than pursuant to the mandatory repayment
provisions thereof) made since August 13,
1993. Each capitalized term used in the
foregoing sentence shall have the meaning
assigned in the 1993 Senior Note Indenture as
in effect on August 13, 1993.
ITEM 7.2.3(a) Existing Guarantee Obligations.
1.Indemnity obligations under
that certain Stock Purchase
Agreement, dated as of
November 7, 1997, among the
Borrower, Saputo Group Inc.
and Saputo Acquisition, Inc.
relating to the sale of the
stock of Stella Holdings,
Inc.
2.Indemnity obligations under
that certain Stock Purchase
Agreement, dated as of
November 26, 1996, between
the Borrower and B Companies
Acquisition Corporation
relating to the sale of stock
of BGH Holdings, Inc. and BRH
Holdings, Inc.
3.Indemnity obligations under
that certain Asset Purchase
Agreement, dated as of
February 28, 1997, among SFFB
Holdings, Inc. (and certain
of its subsidiaries) and
Interstate Brands
Corporation.
4.Indemnity obligations under
that certain Assets Purchase
Agreement, dated as of
February 23, 1997, among
Belsea Holdings, Inc. (and
certain of its subsidiaries)
and United States Bakery.
5.Guaranty of obligations in an
amount of approximately $1
million under Vehicle Leasing
Agreement between Silverado
Foods, Inc. and Rush Leasing
Co. (or its affiliates).
ITEM 7.2.4(f) Existing Liens.
See Lien Chart attached hereto as Annex 1.
ITEM 7.2.6(a) Ongoing Investments.
1.Promissory Note, dated February 24, 1997, in
the principal amount of $4,508,000 made by
United States Bakery in favor of GSFBC
Holdings, Inc.
2.Promissory Note, dated February 1, 1980 made by
Floyd Shattuck and Kay Shattuck in favor of
Metz Baking Company (balance as of 2/28/98 -
$2,457).
SCHEDULE II
to
Term Loan Agreement
TERM LOAN PERCENTAGES
[Name of Lender] ___%
ADMINISTRATIVE INFORMATION
Notice Information
Specialty Foods Corporation Specialty Foods Corporation
520 Lake Cook Road
Suite 550
Deerfield, Illinois 60015
Attention:Chief Financial
Officer
Telecopy: (847) 405-5310
with a copy to:
Paul, Weiss, Rifkind, Wharton
& Garrison
Attention: Robert M. Hirsh
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 373-2159
DLJ Capital Funding, Inc., 277 Park Avenue
as Syndication Agent New York, NY 10172
Contact: Diane Albanese
Fax: 212-892-7272
ANNEX I
LIEN CHART
ANDRE-BOUDIN BAKERIES, INC.
<TABLE>
State Jurisdiction Type Secured Party Filing Filing Description
of Number Date
Lien
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
UCC-1 IBM Credit Corporation 9610760912 04/16/96 Leased IBM Equipment
(Lessor)
UCC-1 James K. Eu and Grace L. 9613460403 05/10/96 Real Estate Lien (318 Keamy
Eu St., San Francisco)
UCC-1 Metz Baking Company 9622660359 08/12/96 GMC 1995 Truck Model W7R042
(Secured Party-Lessee)
General Electric Capital
Corporation (Assignee of
Secured Party)
UCC-1 J.P.M. Leasing Services, 9626460621 09/17/96 Walk-in-Freezer
Inc. (Secured Party) The
Manifest Group (Assignee
of Secured Party)
UCC-1 Crown Credit Company 9628560370 10/07/96 Crown Equipment
UCC-1 Metz Baking Company 9707260460 03/13/97 GMC 1995 Model
(Secured Party-Lessee)
General Electric Capital
Corporation (Assignee of
Secured Party)
UCC-1 Colonial Pacific Leasing 9732160372 11/12/97 Equipment
Corporation
UCC-1 Colonial Pacific Leasing 9732160835 11/12/97 Equipment
Corporation
DESIGN FOODS, INC.
TEXAS Secretary UCC-1 Texas Cold Storage 130806 07/5/93 All fixtures, machinery,
of State equipment, furnishings and
other articles of personal
property regarding
refrigerated storage space
UCC-1 Cryovac Div. W.R. Grace 148430 07/30/93 Machinery
& Co.
UCC-1 Specialty Foods Finance 159152 08/18/93 Receivables and items of
Corporation property in Schedule I to
Financing Statement.
UCC-3 Specialty Foods Finance 94627319 03/03/94 Amendment of File No.
Corporation 159152 changing buyer's
address
SPECIALTY FOODS CORPORATION
ILLINOIS Secretary UCC-1 Xerox Corporation 3294766 08/16/94 Xerox 5365FIN
of State
UCC-1 Forsythe/McArthur 3363925 02/14/95 Computer Equipment. True
Associates, Inc. lease filing for
(Lessor) informational purposes
only.
PACIFIC COAST BAKING COMPANY, INC.
CALIFORNIA Secretary UCC-1 Commercial Bank of San 94165221 08/12/94 Double Rack Rotor Oven a
of State Francisco
UCC-1 Commercial Bank of San 94165229 08/12/94 Double Rack Rotor Oven a
Francisco
UCC-1 Commercial Bank of San 94165239 08/12/94 All inventory, Chattel
Francisco Paper, Accounts, Contract
Rights, Equipment, General
Intangibles and Fixtures
together with documents,
Machinery, Furniture and
including titled Motor Vehicles.
UCC-1 Commercial Bank of San 94165327 08/12/94 All inventory, Chattel
Francisco Paper, Accounts, Contract
Rights, Equipment,General Intangibles
and Fixtures together with Documents,
machinery, Furniture and
including titles motor vehicles.
UCC-1 A.J. Ventures, Inc. 9628560389 10/07/96 Cylinder flour storage and
Assigned to: Exchange weighing system. True
Bank Lease filing for
informational purposes
only.
UCC-1 Pioneer Capital 9632460986 11/18/96 Equipment. True Lease
Corporation filing for informational
Assigned to: Republic purposes only.
Leasing Company
UCC-1 Colonial Pacific Leasing R95346 03/10/94 Compactor. True Lease
Corp. filing for informational
purposes only.
UCC-1 Financial Pacific Co. R64209 07/15/93 Packing machine.
Assigned to: US Bank of
WA, N.A.
UCC-3 Financial Pacific Co. R64209-A 06/17/94 Amendment to R64209
Assigned to: US Bank of
WA, N.A.
METZ BAKING COMPANY
NEBRASKA Secretary UCC-1 Cargill Leasing 633192 09/14/94 1994 Chevrolet. True lease
of State Corporation (Lessor) filing for informational
purposes only.
UCC-1 Cargill Leasing 639029 11/21/94 Chevy Chassis and
Corporation (Lessor) ultimaster body. True
lease filing for
informational purposes
only.
UCC-1 Universal Foods 689924 04/22/96 Cream Yeast System
Corporation
UCC-1 USD Capital Corporation 691575 05/06/96 Leased Equipment. True
(Lessor) lease filing for
informational purposes
only.
UCC-1 SF Leasing L.L.C. 712825 11/27/96 Leased Equipment
(Lessor)
UCC-1 Universal Foods 95U13800 11/06/95 Cream Yeast System and real
Corporation estates
UCC-3 Universal Foods 96U01300 01/30/96 Amendment to collateral
Corporation secured pursuant to
95U13800
UCC-1 Ameritech Credit 3164282 09/07/93 Norstar Equipment
Corporation
UCC-1 Cargill Leasing 3267697 06/08/94 1994 Chevrolet trucks
Corporation
UCC-1 Universal Foods 3465272 11/01/95 Equipment for a Cream Yeast
Corporation System
UCC-3 Universal Foods 3499026 01/30/96 Amendment to 3465272 to
Corporation include additional
equipment related to Cream
Yeast System
UCC-1 SF Leasing L.L.C. 3618714 12/02/96 Equipment
(Lessor)
NEBRASKA Dakota UCC-1 USL Capital Corporation 70-98-9948 05/06/96 Equipment. True lease
County filing for informational
purposes only.
Eau Claire US$137.63 Selman (Joe) Thomas Jr., 07/27/90 Judgment
County et al. plaintiff
Circuit Court
of LaCrosse
County,
Wisconsin/United
States District
Court the District
of Nebraska
WISCONSIN Milwaukee UCC-1 Universal Foods 3802933 10/25/95 Cream Yeast System and real
County Corporation estate
UCC-1 General Electric 3804166 05/02/96 Leased Equipment. True
Capital Corporation (Lessor) lease filing for
informational purposes
only.
UCC-1 General Electric 3804167 05/02/96 Real estate and equipment
Capital Corporation (Lessor)
MINNESOTA Secretary UCC-1 General Electric 1576760 04/05/93 1993 International
of State Capital Corporation (Lessor) trailers. True lease
filing for informational
purposes only.
UCC-3 General Electric 1979113 10/08/97 Continuation of lien
Capital Corporation (Lessor) pursuant to 1576760
METZ BAKING COMPANY
INDIANA Secretary of UCC-1 Ameritech Credit 1866466 09/07/93 Norstar Systems.
State Corporation
MINNESOTA Secretary of UCC-1 Cargill Leasing 1680475 06/10/94 1994 Chevrolet Grumman
State Corporation (Lessor) Vans. True lease filing
for informational purposes
only.
UCC-1 Cargill Leasing 1682662 06/20/94 1994 Chevrolet Grumman
Corporation (Lessor) bodies. True lease filing
for informational purposes
only.
UCC-1 General Electric 1701749 09/12/94 Equipment
Capital Corporation
UCC-1 Universal Foods 1800790 11/02/95 Cream Yeast System
Corporation
UCC-3 Universal Foods 1820922 01/29/96 Amendment to 1800790 to
Corporation include additional
collateral (Cream Yeast
System)
WISCONSIN Dane County UCC-1 Universal Foods 0851193 11/01/95 Cream Yeast System and real
Corporation property
MICHIGAN Secretary UCC-1 Specialty Foods Finance 46069B 08/17/94 Sale of Receivables
of State Corporation (Buyer)
UCC-3 Specialty Foods Finance 49100B 11/16/94 Amendment to 46069B to
Corporation (Buyer) replace the list of items
sold to Buyer and change
the Buyer?s name and
address
UCC-1 Cargill Leasing C890652 09/30/94 1994 Chevrolet Vans. True
Corporation lease filing for
informational purposes
only.
MISSOURI Secretary of UCC-1 Cargill Leasing 2413949 06/06/94 1994 Chevrolet trucks with
State Corporation Ultimaster bodies
UTAH Secretary of UCC-1 Cargill Leasing 400590 06/13/94 1994 Oshkosh Ultimaster
State Corporation (Lessor) Aluminum Bread Van. True
lease filing for
informational purposes
only.
UCC-1 Cargill Leasing 410743 09/16/94 1994 Oshkosh Ultimaster
Corporation (Lessor) Aluminum Bread Van. True
lease filing for
informational purposes
only.
METZ BAKING COMPANY
WISCONSIN Secretary UCC-1 Malnove Packaging 1361910 06/21/93 Klikok forming machines
of State Systems
UCC-1 Ameritech Credit 1378018 09/07/98 Norstar 308 equipment
Corporation
UCC-1 Cargill Leasing 1435018 06/10/94 1994 Chevrolet Grumman
Corporation (Lessor) aluminum vans. True lease
filing for informational
purposes only.
UCC-1 Cargill Leasing 1436950 06/20/94 1994 Chevrolet Grumman
Corporation (Lessor) bodies True lease filing
for informational purposes
only.
UCC-1 Cargill Leasing 1438197 06/24/94 1994 Chevrolet trucks
Corporation (Lessor) ultimaster bodies
UCC-1 Universal Foods 1542293 10/25/95 Cream Yeast System
Corporation
UCC-1 General Electric 1583527 05/02/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
UCC-1 General Electric K451484 04/05/93 Trailer Equipment. True
Capital Corporation lease filing for
information purposes only.
UCC-3 General Electric K865640 10/08/97 Continuation pursuant to
Capital Corporation K451484
UCC-1 Specialty Foods Finance K483482 08/18/93 Sale of Receivables
Corporation
UCC-3 Specialty Foods Finance K528486 03/02/94 Amendment pursuant to
Corporation K483482
UCC-3 Specialty Foods Finance K596537 11/16/94 Amendment pursuant to
Corporation K483482
UCC-1 Ameritech Credit K486986 09/07/93 Norstar 308 Equipment
Corporation
UCC-1 Mid-Continent Leasing, K509093 12/21/93 Leased Equipment
Inc.
UCC-1 Cargill Leasing K555703 06/07/94 Leased Equipment - 1994
Corporation Chevrolet Model CP31842
w/Ultimaster Bodies
UCC-1 Cargill Leasing K556626 06/10/94 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
UCC-1 Cargill Leasing K558941 06/20/94 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
UCC-1 Specialty Foods Finance K571551 08/22/94 Sale of Receivables
Corporation
UCC-3 Specialty Foods Finance K596536 11/16/94 Amendment pursuant to
Corporation K571551
UCC-1 General Electric K575695 09/12/94 Bread Basket and Stack
Capital Corporation Handling System
UCC-1 Cargill Leasing K576784 09/15/94 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
UCC-1 Cargill Leasing K594835 11/10/94 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
UCC-1 General Electric K653759 05/23/95 Leased Equipment
Capital Corporation
UCC-1 Universal Foods K684728 10/26/95 Equipment
Corporation
UCC-1 MDFC Equipment Leasing K708873 02/05/96 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
UCC-1 IBM Credit Corporation K721038 03/20/96 Collateral Equipment. True
(Lessor) lease filing for
informational purposes
only.
UCC-1 General Electric K733274 05/02/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
UCC-1 General Electric K733275 05/02/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
UCC-1 General Electric K733276 05/02/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
UCC-1 USL Capital Corporation K734540 05/07/96 Leased Equipment. True
(Lessor) lease filing for
informational purposes
only.
UCC-1 IBM Credit Corporation K742336 06/12/96 Collateral Equipment. True
(Lessor) leasing filing for
informational purposes
only.
UCC-1 General Electric K811640 02/18/97 Leased Equipment. True
Capital Corporation lease filing for
informational purposes
only.
UCC-1 Norwest Equipment K819194 03/14/97 Leased Equipment. True
Finance, Inc. (Lessor) lease filing for
informational purposes
only.
Dubuque County UCC-1 Universal Foods 11225-95 10/26/95 Equipment
Corporation
UCC-1 General Electric 10944 05/02/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
UCC-1 General Electric 5555-96 05/10/96 Leased Equipment
Capital Corporation
(Lessor)
Woodbury UCC-1 Universal Foods 6696 10/26/95 Leased Equipment
County Corporation Roll 336,
Image 1809
UCC-1 USL Capital Corporation G 601 05/07/96 Leased Equipment. True
(Lessor) lease filing for
informational purposes
only.
UCC-1 General Electric G 602 05/07/96 Leased Equipment. True
Capital Corporation lease filing for
(Lessor) informational purposes
only.
SOUTH Secretary of UCC-1 Cargill Leasing 941641002472 06/13/94 Leased Equipment. True
DAKOTA State Corporation lease filing for
informational purposes
only.
UCC-1 Cargill Leasing 941710905805 06/20/94 Leased Equipment. True
Corporation lease filing for
informational purposes
only.
IOWA Dubuque County UCC-1 Universal Foods 48 10/26/95 Cream Yeast System
Corporation
UCC-1 General Electric 10944 05/02/96 Leased Equipment
Capital Corporation
(Lessor)
UCC-1 General Electric 5555-96 05/10/96 Leased Equipment
Capital Corporation
(Lessor)
SOUTH Secretary of UCC-1 Cargill Leasing 941641002412 06/13/94 1994 Chevrolet Vans
DAKOTA State Corporation (Lessor)
UCC-1 Cargill Leasing 941710905805 06/20/94 1994 Chevrolet Grumman
Corporation (Lessor)
IOWA Woodbury UCC-1 Universal Foods 6695 10/26/96 Cream Yeast System
County Corporation
UCC-1 USL Capital Corporation G601 05/07/96 Equipment
(Lessor)
UCC-1 General Electric G602 05/07/96 Equipment
Capital Corporation
(Lessor)
NEBRASKA District Judgment Selman (Joe) Thomas, 86-2214NE 08/21/90 Judgment $137.63
Court Jr. et al.
SAN FRANCISCO FRENCH BREAD COMPANY
CALIFORNIA Secretary State Tax The State Board of Certificate 08/08/97 Notice of State Tax Lien in
of State Lein Equalization No. BE-0630775 amount of $23,600.76
Lien Account No. HA
HQ 036052837
UCC-1 General Electric 90086644 04/03/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95055C0266 02/17/95 Continuation of File No.
Capital Corporation 90086644
UCC-1 General Electric 90107555 04/26/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95066C0344 03/02/95 Continuation of File No.
Capital Corporation 90107555
UCC-1 General Electric 90161623 11/25/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95109C0160 04/18/95 Continuation of File No.
Capital Corporation 90161623
UCC-1 General Electric 90288383 11/28/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95236C0032 08/22/95 Continuation of File No.
Capital Corporation 90288383
UCC-1 General Electric 90299541 12/10/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95229C0301 08/15/95 Continuation of File No.
Capital Corporation 90299541
UCC-1 General Electric 90299542 12/10/90 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-3 General Electric 95230C0395 08/16/95 Continuation of File No.
Capital Corporation 90299542
UCC-1 Oshkosh Truck 93165798 08/17/93 All inventory consisting of
Corporation Chassis motor vehicle chassis and
Division parts manufactured or sold
by the secured party, all
contract rights, accounts
receivable, cash, notes,
securities, instruments,
chattel paper, deposits,
other general intangibles,
documents of title,
policies and certificates
of insurance
UCC-1 Xerox Corporation 94116001 06/09/94 Xerox copier
CALIFORNIA Secretary of UCC-1 Inter-Tel Leasing, 9511660895 04/24/95 Inter-Tel Telephone System.
State Inc. True lease filing for
informational purposes
only.
UCC-3 Inter-Tel Leasing, 95171C0616 06/19/95 Assignment of File No.
Inc. Assigned to: Pitney 9511660895
Bowes Credit
Corporation
UCC-1 East Bay Clarklift, 9535360488 12/18/95 Clark Electric Forklifts.
Inc. True lease filing for
informational purposes
only.
UCC-1 Inter-Tel Leasing, 9613560534 05/13/96 Telephone System. True
Inc. lease filing for
informational purposes
only.
UCC-1 General Electric 9702260236 01/21/97 Equipment. True lease
Capital Corporation filing for informational
purposes only.
UCC-1 General Electric 9720360903 07/21/97 GMC Trucks
Capital Corporation
UCC-1 General Electric 9724061246 08/27/97 Equipment. True lease
Capital Corporation filing for informational
purposes only.
SAN FRANCISCO SOURDOUGH BAKERIES, INC.
CALIFORNIA Secretary of UCC-1 Specialty Foods Finance 93166347 08/19/93 Blanket Security Lien
State Corporation
UCC-3 Specialty Foods Finance 93166347 03/03/94 Amendment to UCC-1 93166347
Corporation changing address of buyer
UCC-3 Specialty Foods Finance 94336C0416 11/15/94 Amendment to UCC-1 93166347
Corporation changing address of buyer
</TABLE>
SCHEDULE III
to
Term Loan Agreement
Subsidiaries
ITEM A. HOLDING COMPANIES
Part I: First-Tier Holding Companies
GWI Holdings, Inc.
MA Holdings, Inc.
ITEM B. SECOND-TIER SUBSIDIARIES
1. Metz Baking Company (Iowa) (owned by GWI Holdings, Inc.)
Metz Baking Company (Delaware)
2. GWI, Inc. (owned by GWI Holdings, Inc.)
3. Mothers Cake & Cookie Co. (owned by MA Holdings, Inc.)
4. Archway Cookies, LLC (owned by Mothers)
5. Pacific Coast Baking Company (owned by GWI Holdings, Inc.)
Belsea Holdings, Inc.
GSFBC Holdings, Inc.
SFFB Holdings, Inc.
SanFran FB, Inc.
Andre-Boudin Bakeries, Inc.
Pane Corporation
Fisherman?s Wharf Sourdough French
Bread Bakeries, Inc.
Boudin International, Inc.
Laura Todd of America
Steve?s Drayage
A. Trocano Construction, Inc.
ITEM C.OPERATING SUBSIDIARIES
A. (owned by GWI Holdings, Inc.)
GWI, Inc.
Metz Baking Company (Iowa)
Metz Baking Company (Del.)
B. (owned by SanFran FB, Inc.)
Andre-Boudin Bakeries, Inc.
Boudin International, Inc.
Laura Todd of America
C. (owned by MA Holdings, Inc.)
Mothers Cake and Cookie Co.
ITEM D. FOREIGN SUBSIDIARIES
Former VB Holdings, Ltd. (a corporation incorporated in British
Columbia)*/
ITEM E. INACTIVE SUBSIDIARIES
LANG Holdings, Inc., a Washington corporation
GBC Holdings, Inc., a Washington corporation
OFBC Holdings, Inc., a Washington corporation
SEM Holdings, Inc., a Washington corporation
Former VB Holdings, Inc., a corporation incorporated in British
Columbia
San Francisco Bay Area Equipment and Supply, a California
corporation
SanFran SB Holdings, Inc., a California corporation
PBI Holdings, Inc., a California corporation
San Francisco Baking Cultures, a California corporation
SFSC, Inc., a Delaware corporation
Larraburu Bakery, a California corporation
Gelsi, Inc., a California corporation
_______________________________
*/Inactive
EXHIBIT 99.4
SFC MASTER TRUST
AMENDMENT NO. 7 TO EACH OF THE POOLING AGREEMENT
AND THE RECEIVABLES SALE AGREEMENT
AND AMENDMENT NO. 2 TO THE SERVICING AGREEMENT
AND CONSENT RELATED THERETO
This Amendment and Consent, dated as of June 10,
1999 (the "Amendment and Consent"), is entered into by each
of Specialty Foods Finance Corporation, a Delaware
corporation (the "Company"), Specialty Foods Corporation, a
Delaware corporation ("SFC"), SFC New Holdings, Inc., a
Delaware corporation ("SFC Holdings") and The Chase
Manhattan Bank (formerly known as Chemical Bank) ("Chase"),
as trustee (in such capacity, the "Trustee)," in respect of
(x) the Pooling Agreement, dated as of November 16, 1994 (as
previously amended, the "Pooling Agreement"), among the
Company, SFC, as the Master Servicer, and the Trustee, (y)
the Servicing Agreement, dated as of November 16, 1994 (as
previously amended, the "Servicing Agreement"), among the
Company, SFC, as the Master Servicer, the Sellers (as
defined below) and the Trustee and (z) the Amended and
Restated Receivables Sale Agreement, dated as of November
16, 1994 (as previously amended, the "Receivables Sale
Agreement" and, together with the Pooling Agreement and the
Servicing Agreement, the "Agreements"), among the Company,
SFC, as the Master Servicer, and the Sellers party thereto
from time to time (the "Sellers").
W I T N E S S E T H :
WHEREAS, the Company, SFC, as Master Servicer, and
the Trustee are parties to each of the Agreements;
WHEREAS, SFC desires to assign all of its rights
and obligations under, among other things, each of the
Agreements to SFC Holdings, including, without limitation,
the rights and obligations of SFC as Master Servicer under
each of the Agreements;
WHEREAS, the parties have agreed to amend the
Agreements in order to effect such assignments by SFC to SFC
Holdings and to substitute SFC Holdings for SFC on the terms
and conditions hereinafter set forth.
NOW THEREFORE, the parties hereto hereby agree as
follows:
SECTION 1. Defined Terms. Capitalized terms
used herein and not otherwise defined shall have the
meanings assigned to such terms in the Pooling Agreement as
supplemented by the Series 1998-1 Supplement thereto, dated
as of March 31, 1998 (the "Series 1998-1 Supplement"), among
the Company, SFC as Master Servicer and the Trustee.
SECTION 2. Assignment of SFC's Rights and
Obligations. Effective as of the date hereof and upon
satisfaction of the conditions precedent set forth in
Section 8 below, SFC hereby assigns and transfers all of its
rights and obligations under each of (x) the Pooling
Agreement, (y) the Servicing Agreement and (z) the
Receivables Sale Agreement to SFC Holdings, including,
without limitation, such rights and obligations of SFC as
Master Servicer and under the Parent Note and SFC Holdings
hereby accepts such rights and assumes such obligations and
agrees that it will perform in accordance with their
respective terms all of the obligations which are required
to be performed by it under each such Agreement.
SECTION 3. Amendments to the Pooling Agreement.
The Pooling Agreement is hereby amended as follows:
3.1 The Pooling Agreement is amended (i) to delete
the phrase "SPECIALTY FOODS CORPORATION, as Master Servicer"
in each instance where it appears in such Agreement and to
substitute SFC NEW HOLDINGS, INC, as Master Servicer"
therefor, and (ii) to delete the phrase "Specialty Foods
Corporation, a Delaware corporation" in each instance where
it appears in such Agreement and to substitute "SFC New
Holdings, Inc, a Delaware corporation" therefor.
3.2 Section 10.20 of the Pooling Agreement is
amended to insert (i) "Specialty Foods Corporation," before
the reference to "Master Servicer" in the fifth line
thereof, (ii) to insert ", Specialty Foods Corporation"
after the first reference to "the Company" set forth in
clause (i) of the proviso set forth in such section and (c)
to insert "or Specialty Foods Corporation" after the
reference to "any public filings of SFC" set forth in such
proviso.
3.3 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Pooling Agreement
with respect to such acts and agreements, shall mean SFC,
and (ii) with respect to acts and agreements executed by SFC
Holdings from and after the effectiveness of this Amendment,
each reference to "SFC" in each of the Pooling Agreement
with respect to such acts and agreements shall mean and be a
reference to SFC Holdings.
SECTION 4. Amendments to the Receivables Sale
Agreement. The Receivables Sale Agreement is hereby amended
as follows:
4.1 The Receivables Sale Agreement is amended (i)
to delete the phrase "SPECIALTY FOODS CORPORATION, as Master
Servicer" in each instance where it appears in such
Agreement and to substitute SFC NEW HOLDINGS, INC, as Master
Servicer" therefor, and (ii) to delete the phrase "Specialty
Foods Corporation, a Delaware corporation" in each instance
where it appears in such Agreement and to substitute "SFC
New Holdings, Inc, a Delaware corporation" therefor.
4.2 Section 8.3 of the Receivables Sale Agreement
is amended by deleting (i) "(the 'Parent Note')" from the
first sentence thereof, and substituting "(as amended,
modified or supplemented from time to time, or as
substituted by a replacement note executed by SFC New
Holdings, Inc., the 'Parent Note')", therefor and (ii) the
reference to "Specialty Foods Corporation" in clause (a) of
the second sentence thereof, and substituting "the Master
Servicer" therefor.
4.3 Section 8.4 of the Receivables Sale Agreement
is amended by inserting the following proviso at the end
thereof:
"; provided, however, that the foregoing shall not
apply to any assignment by Specialty Foods
Corporation to the SFC New Holdings, Inc. of its
rights and obligations under the Parent Note."
4.4 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Receivables Sale
Agreement with respect to such acts and agreements, shall
mean SFC, and (ii) with respect to acts and agreements
executed by SFC Holdings from and after the effectiveness of
this Amendment, each reference to "SFC" in the Receivables
Sale Agreement with respect to such acts and agreements
shall mean and be a reference to SFC Holdings.
SECTION 5. Amendments to the Servicing Agreement.
The Servicing Agreement is hereby amended as follows:
5.1 The Servicing Agreement is amended (i) to
delete the phrase "SPECIALTY FOODS CORPORATION, as Master
Servicer" in each instance where it appears in such
Agreement and to substitute SFC NEW HOLDINGS, INC, as Master
Servicer" therefor, and (ii) to delete the phrase "Specialty
Foods Corporation, a Delaware corporation" in each instance
where it appears in such Agreement and to substitute "SFC
New Holdings, Inc, a Delaware corporation" therefor.
5.2 Section 1.1 of the Servicing Agreement is
amended by adding the following proviso after clause (ii) of
the definition of "Master Servicer Consolidation Event" set
forth therein:
"provided, however, that notwithstanding the
foregoing, any assignment by Specialty Foods
Corporation, a Delaware corporation, to SFC New
Holdings, Inc., a Delaware corporation and
affiliate of the Company, of the rights, duties
and obligations of Master Servicer under the
Transaction Documents shall not be deemed to be a
Master Servicer Consolidation Event."
5.3 Section 4.5 of the Servicing Agreement is
amended to insert the following sentence after the first
sentence thereof:
"Notwithstanding the foregoing, the Master
Servicer shall be deemed to have timely satisfied
the foregoing requirement if the letter described
in the foregoing sentence with respect to the
fiscal year ended on December 31, 1998 is
furnished on or before September 1, 1999."
5.4 Section 7.11 of the Servicing Agreement is
amended by inserting (i) ", Specialty Foods Corporation "
after the reference to "the Company in clause (iii) of the
proviso set forth therein and (ii) "or Specialty Foods
Corporation" after the reference to "any public filings of
SFC" in such clause of such proviso.
5.5 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Servicing
Agreement with respect to such acts and agreements shall
mean SFC, and (ii) with respect to acts and agreements
executed by SFC Holdings from and after the effectiveness of
this Amendment, each reference to "SFC" in the Servicing
Agreement with respect to such acts and agreements shall
mean and be a reference to SFC Holdings.
SECTION 6. Agent's and VFC Certificateholders'
Consent. Each of Bankers Trust Company, as Agent for the
VFC Certificateholders, and the VFC Certificateholders
hereby acknowledges and consents to (w) the assignment to
and assumption by SFC Holdings of all of SFC's rights and
obligations under each of the Agreements, which assignments
and assumptions are effected hereunder, and the Series 1998-
1 Supplement and the Certificate Purchase Agreement, which
assignments and assumptions are effected under Amendment No.
3 to Series 1998-1 Supplement and Amendment No. 1 to 1998-1
Certificate Purchase Agreements, dated as of the date hereof
("Amendment No. 3"), (x) the amendments effected hereunder
to each of the Agreements and to the amendments effected as
of date hereof under Amendment No. 3, (y) the termination of
the existing Guaranty and the execution of a replacement
guaranty made by SFC Holdings in favor of the Company and
(z) the assignment to and assumption by SFC Holdings of all
of SFC's rights and obligations under the Parent Note or, in
the alternative, the execution of a replacement note made by
the Company in favor of SFC Holdings. Each of Bankers Trust
Company, as Agent for the VFC Certificateholders, and the
VFC Certificateholders hereby acknowledges that, upon the
effectiveness of this Amendment, SFC shall cease to have any
obligations under any of the Agreements, the Guaranty or the
Parent Note.
SECTION 7. Covenants, Representations and
Warranties of the Company, SFC and SFC Holdings.
7.1 Upon the effectiveness of this Amendment and
Consent, each of the Company, SFC and SFC Holdings, as
Master Servicer, hereby reaffirms all covenants,
representations and warranties made by it (or, in the case
of SFC Holdings, made by SFC) in each of the Agreements and
in the other Transaction Documents and agrees that all such
covenants, representations and warranties shall be deemed to
have been re-made as of the effective date of this Amendment
and Consent, except to the extent any such representation
and warranty was expressly made as of any other date, in
which case such representation and warranty was true and
correct in all material respects as of such other date.
7.2 Each party hereto represents and warrants that
this Amendment and Consent constitutes its legal, valid and
binding obligation, enforceable against each such party in
accordance with its terms.
SECTION 8. Conditions to Effectiveness. This
Amendment and Consent shall become effective as of the date
hereof upon:
8.1 the Trustee's receipt of:
(a) executed counterparts of this Amendment and
Consent, executed by each of the parties hereto
and acknowledged and consented to by each of
Bankers Trust Company, as Agent for the VFC
Certificateholders, and the requisite VFC
Certificateholders;
(b) executed counterparts of Amendment No. 3,
executed by each of the parties thereto and
acknowledged by the requisite VFC
Certificateholders;
(c) an officer's certificate of a Responsible
Officer of the Company certifying that neither
this Amendment and Consent nor Amendment No. 3
shall adversely affect in any material respect the
interests of the VFC Certificateholders;
(d) a secretary's certificate from each of the
Company, SFC and SFC Holdings certifying (i) board
resolutions authorizing the execution and delivery
of this Amendment and Consent, (ii) the incumbency
of the natural persons authorized to execute and
deliver this Amendment and Consent, (iii) the
charter and bylaws of the Company, SFC or SFC
Holdings, as the case may be, being correct and in
full force and effect and (iv) copies of "good
standing" certificates issued by the Secretary of
State of the State of Delaware, certifying that
each of the Company, SFC, or SFC Holdings, as the
case may be, is in good standing and has paid all
taxes due to the State of Delaware, and including
as annexes thereto the certificate of
incorporation of the Company, SFC or SFC Holdings,
as the case may be; and
8.2 (i) the completion of the refinancing
transactions and exchange offers contemplated under (x) SFAC
New Holdings, Inc.'s Offer to Exchange and Consent
Solicitation dated May 10, 1999 with respect to certain
senior secured discount debentures issued by Specialty Foods
Acquisition Corporation and (y) SFC New Holdings, Inc.'s
Offer to Exchange and Consent Solicitation dated May 10,
1999 with respect to certain senior notes of SFC and (ii)
the effectiveness of Amendment No. 3.
9. Continuing Effect of the Agreements. Except
as expressly amended, modified and supplemented hereby, the
provisions of each of the Agreements are and shall remain in
full force and effect.
10. GOVERNING LAW. THIS AMENDMENT AND CONSENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAW.
11. Counterparts. This Amendment and Consent may
be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Amendment and Consent to be duly executed by their
respective officers as of the day and year first above
written.
SPECIALTY FOODS FINANCE CORPORATION
BY: /s/ Sean M. Stack
------------------
Name: Sean M. Stack
Title: Vice President
SPECIALTY FOODS CORPORATION
BY: /s/ Sean M. Stack
-------------------
Name: Sean M. Stack
Title: Vice President
SFC NEW HOLDINGS, INC.
BY: /s/ Sean M. Stack
---------------------
Name: Sean M. Stack
Title: Vice President
THE CHASE MANHATTAN BANK, as Trustee
BY:
Name:
Title:
Acknowledged and consented to
as of the date indicated above:
BANKERS TRUST COMPANY,
as Agent and VFC Certificateholder
BY: _______________________________
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
c/o TRUST COMPANY OF THE WEST
BY: _______________________________
Name:
Title:
NATEXIS BANQUE
BY: _______________________________
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A.
"RABOBANK NEDERLAND" NEW YORK BRANCH
BY: _________________________________
Name:
Title
COMPAGNIE FINANCIERE DE CIC
BY: ________________________________
Name:
Title:
GCB INVESTMENT PORTFOLIO AND OSPRY INVESTMENTS
c/o CITIBANK GLOBAL ASSET MANAGEMENT
BY: ________________________________
Name:
Title:
EXHIBIT 99.5
AMENDMENT NO. 3 TO
SERIES 1998-1 SUPPLEMENT
AND
AMENDMENT NO. 1 TO
SERIES 1998-1 CERTIFICATE PURCHASE
AGREEMENT
Dated as of June 10, 1999
THIS AMENDMENT NO. 3 TO SERIES 1998-1 SUPPLEMENT
AND AMENDMENT NO. 1 TO SERIES 1998-1 CERTIFICATE PURCHASE
AGREEMENT (this "Amendment") dated as of June 10, 1999 is
entered into between SPECIALTY FOODS FINANCE CORPORATION
(the "Company"), SPECIALTY FOODS CORPORATION ("SFC"), SFC
NEW HOLDINGS, INC. ("SFC Holdings"), THE CHASE MANHATTAN
BANK, as trustee (the "Trustee"), the financial institutions
party to the Certificate Purchase Agreement (as such term is
defined below) as "VFC Certificateholders" (the "VFC
Certificateholders") and Bankers Trust Company ("Bankers
Trust"), individually as a VFC Certificateholder and as
agent for the VFC Certificateholder (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, the Company, SFC as Master Servicer and
the Trustee are parties to that certain Series 1998-1
Supplement, dated as of March 31, 1998 (as amended, the
"Supplement") to that certain Pooling Agreement (as amended,
the "Pooling Agreement") dated as of November 16, 1994;
WHEREAS, the Company, SFC as Master Servicer, the
VFC Certificateholders and Bankers Trust Company as Agent
are parties to that certain Series 1998-1 Certificate
Purchase Agreement, dated as of March 31, 1998 (as amended,
restated, supplemented or otherwise modified from time to
time, the "Certificate Purchase Agreement", and collectively
with the Supplement, the "Agreements");
WHEREAS, SFC desires to assign all of its rights
and obligations under each of the Agreements to SFC
Holdings, including, without limitation, such rights and
obligations of SFC as Master Servicer thereunder;
WHEREAS, the parties hereto have agreed to amend
the Agreements in order to effect such assignment by SFC to
SFC Holdings and to substitute SFC Holdings for SFC, and
grant certain consents thereunder, in each case, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1. Definitions. Capitalized terms
used herein and not defined herein shall have the meanings
set forth in the Pooling Agreement, the Supplement and the
Certificate Purchase Agreement, as applicable.
SECTION 2. Assignment of SFC 's Rights and
Obligations. Effective as of the date hereof and upon
satisfaction of the conditions precedent set forth in
Section 7 below, SFC hereby assigns and transfers all of its
rights and obligations under the Agreements to SFC Holdings,
including, without limitation, such rights and obligations
of SFC as Master Servicer, and SFC Holdings hereby accepts
such rights and assumes such obligations and agrees that it
will perform in accordance with their respective terms all
of the obligations which are required to be performed by it
thereunder.
SECTION 3. Amendments to the Supplement. The
Supplement is hereby amended as follows:
3.1 The Supplement is amended (i) to delete the
phrase "SPECIALTY FOODS CORPORATION, as Master Servicer" in
each instance where it appears therein and to substitute
"SFC NEW HOLDINGS, INC., as Master Servicer" therefor, and
(ii) to delete the phrase "Specialty Foods Corporation, a
Delaware corporation" in each instance where it appears
therein and to substitute "SFC New Holdings, Inc., a
Delaware corporation" therefor.
3.2 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Supplement with
respect to such acts and agreements, shall mean SFC, and
(ii) with respect to acts and agreements executed by SFC
Holdings from and after the effectiveness of this Amendment,
each reference to "SFC" in the Supplement with respect such
acts and agreements, shall mean and be a reference to SFC
Holdings.
3.3 The definition of "Guaranty" set forth in
Section 1.1 of the Supplement is hereby deleted in its
entirety and amended to substitute the following therefor:
'"Guaranty" shall mean that certain Guaranty
dated as of June 10, 1999, from SFC to the Company
pursuant to which SFC guaranties the obligations
of each Seller to the Company under the
Receivables Sale Agreement.'
3.4 The definition of "SFC Loan Agreement" in
Section 1.1 of the Supplement is hereby amended to delete
the phrase "the SFC Group" therein and to substitute
therefor "SFC and/or its Affiliates".
SECTION 4. Amendments to the Certificate Purchase
Agreement. The Certificate Purchase Agreement is hereby
amended as follows:
4.1 The Certificate Purchase Agreement is amended
(i) to delete the phrase "SPECIALTY FOODS CORPORATION, as
Master Servicer" in each instance where it appears therein
and to substitute "SFC NEW HOLDINGS, INC., as Master
Servicer" therefor, (ii) to delete the phrase "Specialty
Foods Corporation, a Delaware corporation, as servicer" in
each instance where it appears therein and to substitute
"SFC New Holdings, Inc., a Delaware corporation, as
servicer" therefor. From and after the effectiveness
hereof, each reference to "SFC" in the Certificate Purchase
Agreement shall mean and be a reference to SFC Holdings.
4.2 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Certificate
Purchase Agreement with respect to such acts and agreements,
shall mean SFC, and (ii) with respect to acts and agreements
executed by SFC Holdings from and after the effectiveness of
this Amendment, each reference to "SFC" in the Certificate
Purchase Agreement with respect such acts and agreements,
shall mean and be a reference to SFC Holdings.
4.3 Clause (e) of Section 6.04 of the Certificate
Purchase Agreement is hereby amended to delete each
reference to "the Company and SFC" therein and to substitute
"the Company, Specialty Foods Corporation and SFC" therefor.
4.4 Section 6.08 of the Certificate Purchase
Agreement is hereby amended to insert "Specialty Foods
Corporation," before each reference to "SFC" therein.
SECTION 5. VFC Certificateholders' Consent. Each
of the VFC Certificateholders hereby acknowledges and
consents to the assignment to and assumption by SFC Holdings
of all of SFC's rights and obligations under each of the
Pooling Agreement, the Servicing Agreement, the Receivables
Sale Agreements and each of the Agreements, including SFC's
rights and obligations as Master Servicer thereunder, and
further agrees that, upon the effectiveness hereof, SFC
shall no longer be a party to any such agreements.
SECTION 6. Covenants, Representations and Warran
ties of the Borrowers.
6.l Upon the effectiveness of this Amendment,
each of the Company, SFC and SFC Holdings, as Master
Servicer hereby reaffirms all covenants, representations and
warranties made by it (or, in the case of SFC Holdings, made
by SFC) in the Supplement, the Certificate Purchase
Agreement and in the other Transaction Documents and agrees
that all such covenants, representations and warranties
shall be deemed to have been re-made as of the effective
date of this Amendment, except to the extent any such
representation and warranty was expressly made as of any
other date, in which case such representation and warranty
was true and correct in all material respects as of such
other date.
6.2 Each party hereto hereby represents and
warrants that this Amendment constitutes its legal, valid
and binding obligation, enforceable against each such party
in accordance with its terms.
SECTION 7. Conditions Precedent. This
Amendment shall become effective as of the date hereof upon:
7.1 the Agent's and the Trustee's receipt of:
(a) executed counterparts of this Amendment,
executed by each of the parties hereto and acknowledged
by the Required Certificateholders;
(b) executed counterparts of Amendment No. 7 to
Each of the Pooling Agreement and Receivables Sale
Agreement and Amendment No. 2 to the Servicing
Agreement and Consent Related Thereto, executed by each
of the parties thereto and acknowledged by the Required
Certificateholders;
(c) an executed Guaranty from SFC Holdings;
(d) written confirmation from the Rating Agency
that this Amendment will not result in a reduction or
withdrawal of their respective ratings of the VFC
Certificates;
(e) an opinion of counsel for SFC Holdings as to,
among other things, the execution, delivery,
authorization and performance by SFC Holdings of this
Amendment, the related amendments to the Pooling
Agreement, the Servicing Agreement, the Receivables
Sale Agreement and the Guaranty and the enforceability
of the Agreements, the Pooling Agreement, the Servicing
Agreement, the Receivables Sale Agreement and the
Guaranty as against SFC Holdings; and
(f) an opinion of counsel for SFC Holdings as to
certain non-consolidation and bankruptcy matters with
respect to SFC Holdings; and
7.2 the completion of the refinancing
transactions and exchange offers contemplated under (i) SFAC
New Holdings, Inc.'s Offer to Exchange and Consent
Solicitation dated May 10, 1999 with respect to certain
senior notes issued by SFC, and (ii) SFC New Holdings,
Inc.'s Offer to Exchange and Consent Solicitation dated May
10, 1999 with respect to certain senior secured discount
debentures of Specialty Foods Acquisition Corporation.
SECTION 8. Termination of Existing Performance
Guaranty. Each of the signatories hereto hereby agrees and
acknowledges that upon this Amendment becoming effective,
the Performance Guaranty dated as of March 31, 1998,
executed by SFC in favor of the Company shall be
simultaneously terminated and be of no further force and
effect without further action on the part of any party
hereto.
SECTION 9. Miscellaneous.
9.1 Ratification and Acknowledgment. As amended
hereby, each of the Agreements is in all respects ratified
and confirmed and each such Agreement as so supplemented by
this Amendment shall be read, taken and so construed as one
and the same instrument. The execution, delivery and
effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any party under any
Agreement, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
9.2 Amendment. The terms of this Amendment
shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by written
instrument executed by all parties hereto.
9.3 Parties; Severability. Whenever in this
Amendment there is a reference made to any of the parties
hereto, such reference shall also be a reference to the
successors and assigns of such party, including, without
limitation, a debtor-in-possession or trustee. The
provisions of this Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the parties
hereto. Whenever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of
this Amendment.
9.4 Execution in Counterparts; Governing Law
This Amendment may be executed in any numbers of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which when
taken together shall constitute but one and the same
instrument. This Amendment shall be governed by and
construed in accordance with the laws of the State of New
York.
9.5 Section Titles. The section titles
contained in this Amendment are and shall be without
substance, meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above
written.
SPECIALTY FOODS FINANCE CORPORATION
By:
Name:
Title:
SPECIALTY FOODS CORPORATION
By:
Name:
Title:
SFC NEW HOLDINGS, INC.
By:
Name:
Title:
THE CHASE MANHATTAN BANK, not
in its individual
capacity but solely as Trustee
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Agent and VFC Certificateholder
By:
Name:
Title:
Acknowledged and consented to
as of the date indicated above:
COMPAGNIE FINANCIERE DE CIC
By:
Name:
Title:
GCB INVESTMENT PORTFOLIO AND OSPRY INVESTMENTS
c/o CITIBANK GLOBAL ASSET MANAGEMENT
By:
Name:
Title:
NATEXIS BANQUE
By:
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A.
"RABOBANK NEDERLAND" NEW YORK BRANCH
By:
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
c/o TRUST COMPANY OF THE WEST
By:
Name:
Title:
EXHIBIT 99.6
EXECUTION COPY
AMENDMENT NO. 4 TO
SERIES 1998-1 SUPPLEMENT
Dated as of June 10, 1999
THIS AMENDMENT NO. 4 TO SERIES 1998-1 SUPPLEMENT
(this "Amendment") dated as of June 10, 1999 is entered into
between SPECIALTY FOODS FINANCE CORPORATION (the "Company"),
SFC NEW HOLDINGS, INC. ("SFC"), THE CHASE MANHATTAN BANK, as
trustee (the "Trustee"), the financial institutions party to
that certain Series 1998-1 Certificate Purchase Agreement,
dated as of March 31, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the
"Certificate Purchase Agreement") as "VFC
Certificateholders" (the "VFC Certificateholders") and
Bankers Trust Company ("Bankers Trust"), individually as a
VFC Certificateholder and as agent for the VFC
Certificateholder (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, SFC as Master Servicer and
the Trustee are parties to that certain Series 1998-1
Supplement, dated as of March 31, 1998 (as amended, the
"Supplement") to that certain Pooling Agreement (as amended,
the "Pooling Agreement") dated as of November 16, 1994;
WHEREAS, the parties hereto have agreed to amend
the Supplement on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1. Definitions. Capitalized terms
used herein and not defined herein shall have the meanings
set forth in the Pooling Agreement and the Supplement, as
applicable.
SECTION 2. Amendments to the Supplement. The
Supplement is hereby amended as follows:
2.1 The definition of "Control Party" in Section
1.1 of the Supplement is hereby amended by deleting the
period (".") at the conclusion thereof and substituting the
following: provided, that, with respect to any amendment to
or modification of any Early Amortization Event, "Control
Party" shall mean the Agent acting at the direction of
holders of VFC Certificates representing Fractional
Undivided Interests and/or Commitments aggregating more than
75% of the Invested Amount (or the Aggregate Commitment as
applicable).
2.2 The definition of "Scheduled Termination
Date" in Section 1.1 of the Supplement is hereby amended to
delete therefrom the date "December 15, 1999" and to
substitute therefor "December 15, 2000".
SECTION 3. Covenants, Representations and Warran
ties of the Borrowers.
3.l Upon the effectiveness of this Amendment,
each of the Company and SFC, as Master Servicer hereby
reaffirms all covenants, representations and warranties made
by it in the Supplement and in the other Transaction
Documents and agrees that all such covenants,
representations and warranties shall be deemed to have been
re-made as of the effective date of this Amendment, except
to the extent any such representation and warranty was
expressly made as of any other date, in which case such
representation and warranty was true and correct in all
material respects as of such other date.
3.2 Each party hereto hereby represents and
warrants that this Amendment constitutes its legal, valid
and binding obligation, enforceable against each such party
in accordance with its terms.
SECTION 4. Conditions Precedent. This
Amendment shall become effective as of the date hereof upon:
4.1 the Agent's and the Trustee's receipt of:
(a) executed counterparts of this Amendment,
executed by each of the parties hereto and acknowledged
by all of the VFC Certificateholders party to this
Amendment;
(b) executed counterparts of Amendment No. 3 to
the Series 1998-1 Supplement and Amendment No. 1 to
the Series 1998-1 Certificate Purchase Agreement,
executed by each of the parties thereto and
acknowledged by the Required Certificateholders (as
such term is defined in the Certificate Purchase
Agreement);
(c) written confirmation from the Rating Agencies
that this Amendment will not result in a reduction or
withdrawal of its rating of the VFC Certificates;
(d) an opinion of counsel for SFC as to, among
other things, the execution, delivery, authorization
and performance by SFC of this Amendment as against
SFC;
(f) executed assignments evidencing that each of
Compagnie Financiere de CIC, GCB Investment Portfolio
and Ospry Investments and Crescent/Mach I Partners,
L.P. have assigned all of such parties' right, title
and interest in and to their respective VFC
Certificates to (i) one or more of the VFC
Certificateholders on the signature pages hereto or
(ii) any other party which has agreed in writing to be
bound by this Amendment ; and
4.2 the payment to the Agent not later than two
(2) Business Days following the effectiveness of the
assignments described in clause (f) above, for the benefit
of each VFC Certificateholder, a fee equal to 0.25 percent
times the aggregate amount of each such VFC
Certificateholder's Commitments (after giving effect to such
assignments).
SECTION 5. Miscellaneous.
5.1 Ratification and Acknowledgment. As amended
hereby, the Supplement is in all respects ratified and
confirmed and the Supplement as so supplemented by this
Amendment shall be read, taken and so construed as one and
the same instrument. The execution, delivery and
effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any party under the
Supplement, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
5.2 Amendment. The terms of this Amendment
shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by written
instrument executed by all parties hereto.
5.3 Parties; Severability. Whenever in this
Amendment there is a reference made to any of the parties
hereto, such reference shall also be a reference to the
successors and assigns of such party, including, without
limitation, a debtor-in-possession or trustee. The
provisions of this Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the parties
hereto. Whenever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of
this Amendment.
5.4 Execution in Counterparts; Governing Law
This Amendment may be executed in any numbers of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which when
taken together shall constitute but one and the same
instrument. This Amendment shall be governed by and
construed in accordance with the laws of the State of New
York.
5.5 Section Titles. The section titles
contained in this Amendment are and shall be without
substance, meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above
written.
SPECIALTY FOODS FINANCE CORPORATION
By:
Name:
Title:
SFC NEW HOLDINGS, INC.
By:
Name:
Title:
THE CHASE
MANHATTAN BANK, not in its individual
capacity but solely as Trustee
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Agent and VFC Certificateholder
By:
Name:
Title:
Acknowledged and consented to:
NATEXIS BANQUE
By:
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A.
"RABOBANK NEDERLAND" NEW YORK BRANCH
By:
Name:
Title:
EXHIBIT 99.7
EXECUTION COPY
PERFORMANCE GUARANTY
THIS PERFORMANCE GUARANTY (this "Guaranty") is
made as of June 10, 1999 by SFC NEW HOLDINGS, INC, a
Delaware corporation ("SFC"), as Master Servicer (in such
capacity, the "Master Servicer" and "Guarantor",) in favor
of SPECIALTY FOODS FINANCE CORPORATION, a Delaware
corporation (the "Company");
W I T N E S S E T H
WHEREAS, the Company, the Master Servicer and
certain of the subsidiaries of Specialty Foods Corporation
named therein as sellers (collectively, the "Sellers" and
each a "Seller") are parties to that certain Amended and
Restated Receivables Sale Agreement dated as of November 16,
1994 (as the same may from time to time be amended,
restated, supplemented or otherwise modified, the
"Receivables Sale Agreement");
WHEREAS, it is a condition precedent to the
willingness of the Company to continue to make available the
purchase facility under the Receivables Sale Agreement, that
SFC, individually and as Master Servicer, execute and
deliver this Guaranty;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions. Terms used herein and
not otherwise defined herein shall have the meanings
assigned under the Receivables Sale Agreement or, to the
extent not defined therein, under that certain Pooling
Agreement dated as of November 16, 1994 (as the same may be
amended, restated, supplemented or otherwise modified, the
"Pooling Agreement"), among the Company, the Master
Servicer, and The Chase Manhattan Bank, as Trustee.
SECTION 2. Performance Guaranty. (a) The
Guarantor hereby unconditionally and irrevocably guarantees
to the Company, and all of its respective successors,
endorsees, transferees and assigns (including the Trustee
for the benefit of the Investor Certificateholders), the due
and punctual performance by each Seller of all covenants,
agreements, terms, conditions, undertakings, indemnities and
other obligations to be performed and observed by such
Seller to the Company under the Receivables Sale Agreement
including, without limitation, the due and punctual payment
of all sums which are or may become due and owing by each
Seller under the terms and provisions of the Receivables
Sale Agreement, whether for fees, expenses, indemnified
amounts or otherwise, whether upon any termination or for
any other reason. Upon the failure by any Seller to pay
punctually any amount due by it under the Receivables Sale
Agreement, the Guarantor agrees that it shall forthwith on
demand pay such amount at the place and in the manner
specified in the Receivables Sale Agreement.
SECTION 3. Waivers; Guaranty Unconditional. (a)
The Guarantor hereby waives promptness, diligence and notice
of acceptance of this Guaranty, of any action taken or
omitted in reliance hereon or of any default in the payment
of any such sums or in the performance of any covenants,
agreements, terms, conditions, and any demand, protest or
other notice of any kind. The Guarantor expressly waives
the right to require the Company to protect, secure,
perfect, insure, proceed against or exhaust any security
granted to it as security for the payment of any sums due
under the Receivables Sale Agreement or to exhaust any right
or take any action against any Seller or any other Person or
any collateral. The Guarantor further agrees that the
execution and delivery of this Guaranty shall be conclusive
evidence against the Guarantor that its obligations under
this Guaranty are unconditional and absolute. SFC in its
capacity as Master Servicer and as Guarantor hereby warrants
to the Company that it has adequate means to obtain from
each Seller on a continuing basis all information concerning
each of the Transaction Documents, the financial condition
of each such Seller and the collectability of the Purchased
Receivables, and that it is not relying on the Company to
provide such information either now or in the future.
(b) The obligations of the Guarantor under this
Guaranty constitute a present and continuing guaranty of
payment and not of collectability, shall be absolute and
unconditional, shall not be subject to any counterclaim, set-
off, deduction or defense based upon any claim the Guarantor
or any Affiliate thereof may have against any Seller or
against the Company or any other Person and shall remain in
full force and effect without regard to and shall not be
released, discharged or in any way affected or impaired by,
any thing, event, happening, matter, circumstance or
condition whatsoever (whether or not the Guarantor shall
have any knowledge or notice thereof or consent thereto),
including, without limitation:
(i) any amendment or modification of or supplement
to the Receivables Sale Agreement agreed to by the
requisite parties specified therein, or any assignment
or transfer of any interest of the Company, therein,
including, without limitation, any renewal or extension
of the terms of payment of any sums due or contingently
due hereunder or the granting of time in respect of any
payment, or any furnishing or acceptance of security or
any release of any security so furnished or accepted
for the sum due or contingently due under any
Transaction Document or eligibility criteria for the
purchase of Purchased Receivables thereunder;
(ii) any waiver, consent, extension, granting of
time, forbearance, indulgence or other action or
inaction under or in respect of the Receivables Sale
Agreement or any other Transaction Document or any
exercise or nonexercise of any right, remedy or power
in respect thereof;
(iii) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or
similar proceedings with respect to any of the Sellers,
the Guarantor or any other Person, or the properties or
creditors of any of them;
(iv) the occurrence of any Purchase Termination
Event under the Receivables Sale Agreement, or any
invalidity or any unenforceability of, or any
misrepresentation, irregularity or other defect in the
Receivables Sale Agreement or any other Transaction
Document or any other document to be delivered in
connection therewith;
(v) any failure by the Company to take any
required steps to perfect and maintain any security
interest in, or to preserve any rights to, any security
or collateral for any Purchased Receivable or Related
Property;
(vi) any transfer or purported transfer, any
consolidation or merger of any of the Sellers, the
Guarantor or the Company with or into any other
corporation or entity, or any change whatsoever in the
objects, capital structure, constitution or business of
any of the Sellers or the Guarantor;
(vii) any failure on the part of any of the
Sellers to perform or comply with any term of the
Receivables Purchase Agreement, any other Transaction
Document or any other document to be delivered in
connection therewith;
(viii) any suit or other action brought by any
creditors of any of the Sellers or the Guarantor for
any reason whatsoever, including, without limitation,
any suit or action in any way attacking or involving
the Receivables Purchase Agreement, the Certificate
Purchase Agreement or any other Transaction Document or
any other document to be delivered in connection
therewith; or
(ix) any other fact or circumstance which might
constitute a defense available to, or a discharge of,
the Guarantor.
SECTION 4. Discharge Only Upon Payment in Full;
Reinstatement. The obligations of the Guarantor hereunder
shall remain in full force and effect until all obligations
guaranteed hereunder are fully satisfied. If at any time
any payment of any obligations guaranteed hereunder is
rescinded or must otherwise be restored or returned by the
Company upon the insolvency, bankruptcy or reorganization of
the Guarantor, each of the obligations of the Guarantor
hereunder, as applicable, shall be reinstated all as though
such payment had not been made.
SECTION 5. Subrogation. If the Guarantor shall
make any payment due in respect of the Receivables Sale
Agreement pursuant to this Guaranty, it shall, to the extent
permitted by applicable law, be subrogated to the rights of
the Company as against the Guarantor; provided, however,
that such rights of subrogation and all indebtedness and
claims arising therefrom shall be, and the Guarantor hereby
declares that they are, and shall at all times be, in all
respects subordinate and junior to all sums due or
contingently due under the Receivables Sale Agreement in
respect of which payment was not made. The Guarantor hereby
further agrees that the foregoing right of subrogation shall
not be effective until, and that it shall not be entitled to
receive any payment, under any condition, in respect of any
such subrogated claim unless and until (x) all sums which
may become due, or are stated in the Receivables Sale
Agreement to become due, shall have become due and shall
have been paid in full or funds for their payment shall have
been duly and sufficiently provided, and (y) all obligations
of the Company and the Master Servicer under the Pooling
Agreement and any Supplement entered into in connection
therewith have been fully paid and satisfied. The Guarantor
further agrees that, if, solely as a result of (i) the
existence of this Guaranty and (ii) the application of
Section 550 of the Bankruptcy Code, or any similar provision
of any state insolvency law, the Company is required in any
bankruptcy or insolvency proceeding to turn over or
otherwise pay to the estate of the Guarantor or lose the
right to receive from the Guarantor's estate any amount
representing or constituting a transfer avoidable as to the
Company (which transfer, but for the existence of this
Guaranty, would not have been recoverable from any such
Person), the Guarantor shall pay or cause to be paid to the
Company, an amount, in cash, equal to such avoided or
recovered amount.
SECTION 6. Representations and Warranties. The
Guarantor hereby represents and warrants on and as of the
date hereof, and on and as of each date on which a purchase
shall be made under the Receivables Sale Agreement, as
follows:
(a) the execution, delivery and performance by
the Guarantor of this Guaranty (i) is within its
corporate powers, (ii) has been duly authorized by all
necessary corporate action, (iii) does not contravene
or result in a default under or conflict with (1) its
certificate or articles of incorporation or by-laws or
the provisions of any indenture, instrument or material
agreement to which they may be party or is subject (2)
any law, rule or regulation applicable to it, (3) any
contractual restriction binding on or affecting the
Guarantor or its property or (4) any order, writ,
judgment, award, injunction or decree binding on or
affecting the Guarantor or its property, and (iv) does
not result in or require the creation of any adverse
claim upon or with respect to any of its properties.
This Guaranty has been duly executed and delivered by
the Guarantor.
(b) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority or other Person is required for the due
execution, delivery and performance by the Guarantor of
this Guaranty.
(c) This Guaranty constitutes the legal, valid
and binding obligation of such Guarantor enforceable
against it in accordance with its terms.
(d) There is no pending or threatened action or
proceeding affecting the Guarantor or any of its
subsidiaries before any Governmental Authority or
arbitrator which could materially adversely affect the
business, operations, property, financial or other
condition or operations of the Guarantor, the ability
of the Guarantor to perform its obligations under this
Guaranty or which affects or purports to affect the
legality, validity or enforceability of this Guaranty.
SECTION 7. Further Assurances. The Guarantor
hereby agrees, upon the written request of the Company, to
execute and deliver to the Company from time to time, any
additional instruments or documents reasonably considered
necessary by the Company to cause this Guaranty to be,
become or continue to be valid and effective in accordance
with its terms.
SECTION 8. No Proceedings. The Guarantor
covenants and agrees that it will not institute against, or
join any other Person in instituting against the Company any
bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any
federal or state bankruptcy or similar law, for one year and
one day after the last Investor Certificate issued by the
Trust is paid in full.
SECTION 9. Successors and Assigns. This Guaranty
shall inure to the benefit of the Company and its respective
successors, endorsees, transferees and assigns. Each such
Person shall have the right to assign any and all of its or
their rights hereunder to any other Person and the Person
acquiring any interest herein shall succeed to all of the
rights of the transferor thereof hereunder to the extent of
such transfer. Notwithstanding the immediate preceding
sentence, the Guarantor agrees that it will not assign or
transfer all or any portion of its rights or obligations
hereunder without the prior written consent of the Company.
The Guarantor acknowledges that the Company shall assign all
of its rights hereunder to the Trustee or any Control Party.
The Guarantor consents to such assignment and agrees that
any Control Party (or the Trustee at the direction of any
Control Party), to the extent provided in the Pooling
Agreement with respect to the enforcement of the Receivables
Sale Agreement, shall be entitled to enforce the terms of
this Guaranty and the rights (including, without limitation,
the right to grant or withhold any consent or waiver) of the
Company directly against the Guarantor, whether or not a
Purchase Termination Event or a Potential Purchase
Termination Event has occurred. The Guarantor further
agrees that, in respect of its obligations hereunder, (i)
it will act at the direction of and in accordance with all
requests and instructions from any Control Party (or the
Trustee, as the case may be) until all amounts due to the
Investor Certificateholders are paid in full and (ii) in the
event of any conflict or requests or instructions to the
Guarantor, among the Trustee, any Control Party and the
Company, the Guarantor will at all times act in accordance
with the requests and instructions of any Control Party.
Each Control Party and the Trustee, on behalf of the
Investor Certificateholders, shall have the rights of third-
party beneficiaries under this Guaranty.
SECTION 10. Taxes; Expenses of Enforcement, etc.
All payments required to be made by the Guarantor hereunder
shall be made without setoff or counterclaim and free and
clear and without deduction or withholding for or on account
of, any present or future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by any government
or political or taxing authority thereof, provided, however,
that if the Guarantor is required by law to make such
deduction or withholding, the Guarantor shall forthwith pay
to the Company, such additional amount as results in the net
amount received by the Company equaling the full amount
which would have been received by the Company had no
deduction or withholding been made. The Guarantor also
agrees to reimburse the Company for any reasonable costs,
internal charges and out-of-pocket expenses (including
reasonable attorney's fees and time charges of attorneys for
the Company, which attorneys may be the employees of the
Company) paid or incurred by the Company in connection with
the collection and enforcement of amounts due under this
Guaranty.
SECTION 11. Setoff. At any time after all or any
part of the obligations guarantied hereunder become due and
payable (by acceleration or otherwise), the Company may,
without notice to the Guarantor and regardless or the
acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or
any part of the obligations guarantied hereunder, (i) any
indebtedness due or becoming due from the Company to the
Guarantor, and (ii) any monies, credits or other property
belonging to the Guarantor, at any time held by it or coming
into the possession of the Company or any of its respective
affiliates.
SECTION 12. GOVERNING LAW. (a) THIS GUARANTY
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 13. WAIVER OF JURY TRIAL. THE GUARANTOR
HEREBY AND UNCONDITIONALLY WAIVES ITS RIGHTS TO A TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT AND ANY COUNTERCLAIM THEREIN.
SECTION 14. Submission To Jurisdiction; Waivers.
The Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any
legal action or proceeding relating to this Guaranty,
or for the recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the
Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding
may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that
such action or proceeding was brought in an
inconvenient court;
(c) agrees that service of process in any action
or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the
Guarantor at its address as set forth in Section 10.5
of the Pooling Agreement or under its name on the
signature page thereof, or at such other address of
which the Company shall have been notified pursuant
thereof;
(d) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any
other jurisdiction; and
(e) waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in
any legal action or proceeding referred to in this
section any special, exemplary, punitive or
consequential damages.
SECTION 15. Amendment and Waiver. No amendment
or waiver of any provision of this Guaranty shall be
effective unless in a writing signed by the Company, the
Guarantor, and the Control Party and such amendment or
waiver shall be effective only in the specific instance and
for the specific purpose for which given. No failure on the
part of the Company to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver hereof; nor
shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the
exercise of any other right.
SECTION 16. Severability. Wherever possible,
each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by
or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the
remaining provisions of this Guaranty. Without limiting the
foregoing, if the liability of the Guarantor hereunder is
determined to have exceeded the maximum amount of liability
hereunder which could have been recovered from the Guarantor
under this Guaranty without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law, then this Guaranty shall remain
enforceable against the Guarantor for the full amount which
could have been claimed without becoming subject to such
avoidance.
SECTION 17. Merger. This Guaranty represents the
final agreement of the Guarantor with respect to the matters
contained herein and may not be contradicted by evidence of
prior or contemporaneous agreements, or subsequent oral
agreements, between the Guarantor and the Company.
SECTION 18. Headings. The captions and headings
of this Guaranty are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
IN WITNESS WHEREOF, each of the undersigned has
caused this Guaranty to be duly executed by its duly
authorized officer as of the date first set forth above.
SFC NEW HOLDINGS, INC.
By:
Name:
Title:
EXHIBIT 99.8
FOR IMMEDIATE RELEASE: June 14, 1999
SPECIALTY FOODS COMPLETES BOND EXCHANGES
DEERFIELD, ILL. - Specialty Foods Corporation today
announced it successfully completed exchanges with its
bondholders and finalized amendments to its term loan and
revolving credit agreements on Friday, June 11, 1999. The
bond exchange of its parent company, Specialty Foods
Acquisition Corporation, was also completed on the same
date.
The bond exchanges includes a postponement of the
initial cash pay interest date of the parent company's
Senior Secured Discount Debentures from February 2000 to
December 2004. The amendments to the company's term loan
and revolving credit agreements include a one-year extension
of maturity to January 2001.
"We appreciate the support that we have received from
our debtholders in completing these exchanges and
amendments, " said Lawrence Benjamin, president and chief
executive officer of Specialty Foods. "The completion of
this process is an essential step in our strategy to
continue to build value at Specialty Foods."
Specialty Foods is a leading producer, marketer and
distributor of retail baked goods. The company's operations
include: Metz Baking Company, the leading supplier of bread
and other baked goods in the Midwest; the nation's third
largest cookie company (Mother's Cake & Cookie Company and
Archway Cookies); and Andre-Boudin Bakeries, San Francisco's
leading producer of premium, traditional sourdough bread
since 1849.
