<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 27, 1997
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________________ to ___________________
Commission File Number: 0-24954
JP Foodservice, Inc.
(Exact name of registrant as specified in its charter)
Delaware 52-1634568
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9830 Patuxent Woods Drive 21046
Columbia, Maryland (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (410) 312-7100
Not Applicable
--------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES X NO
------- -------
The number of shares of the registrant's common stock, par value $.01 per
share, outstanding at February 6, 1998 was 45,154,837 shares.
<PAGE>
JP FOODSERVICE, INC.
INDEX
-----
<TABLE>
<CAPTION>
Part I. Financial Information Page No.
--------
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
June 28, 1997 and December 27, 1997 1
Condensed Consolidated Statements of Operations
Three and six months ended December 28, 1996
and December 27, 1997 2
Condensed Consolidated Statements of Cash Flows
Six months ended December 28, 1996
and December 27, 1997 3
Notes to Condensed Consolidated Financial Statements 4 - 7
Item 2. Management's Discussion and Analysis of Financial 8 - 12
Condition and Results of Operations
Part II. Other Information
Item 2. Changes in Securities and Use of Proceeds 12
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information 14
Item 6. Exhibits and Reports on Form 8-K 14
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
JP FOODSERVICE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
ASSETS June 28, December 27,
1997 1997
------------ ------------
<S> <C> <C>
Current assets
Cash and cash equivalents $ 74,432 $ 58,428
Receivables, net 261,717 325,069
Inventories 314,897 337,467
Deferred tax asset 28,944 19,335
Other current assets 29,919 27,788
------------ ------------
Total current assets 709,909 768,087
------------ ------------
Property and equipment, net 437,736 437,277
Deferred income taxes 13,665 27,198
Goodwill and other noncurrent assets 570,873 560,970
------------ ------------
Total assets $ 1,732,183 $ 1,793,532
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Current maturities of long-term debt $ 22,492 $ 4,991
Current obligations under capital leases 5,690 5,505
Accounts payable 321,442 359,151
Accrued expenses 125,482 104,385
------------ ------------
Total current liabilities 475,106 474,032
------------ ------------
Noncurrent liabilities
Long-term debt 621,788 722,195
Obligations under capital leases 33,458 32,307
Other noncurrent liabilities 22,685 34,486
------------ ------------
Total noncurrent liabilities 677,931 788,988
------------ ------------
Total liabilities 1,153,037 1,263,020
------------ ------------
Commitments and contingent liabilities
Stockholders' equity 579,146 530,512
------------ ------------
Total liabilities and stockholders' equity $ 1,732,183 $ 1,793,532
============ ============
</TABLE>
SEE ACCOMPANYING NOTES TO THE CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
1
<PAGE>
JP FOODSERVICE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
----------------------------- -----------------------------
December 28, December 27, December 28, December 27,
1996 1997 1996 1997
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 1,304,983 $ 1,373,258 $ 2,624,172 $ 2,712,086
Cost of sales 1,050,559 1,116,761 2,121,630 2,199,343
------------- ------------- ------------- -------------
Gross profit 254,424 256,497 502,542 512,743
Operating expenses 213,371 232,322 426,966 449,166
Restructuring costs 38,037 38,037
Asset impairment 32,135 32,135
Amortization of intangible assets 4,170 3,738 7,700 7,419
------------- ------------- ------------- -------------
Income (loss) from operations 36,883 (49,735) 67,876 (14,014)
Interest and other financing expenses 19,528 20,319 37,591 39,246
Nonrecurring acquisition charges 100 17,822 5,400 17,822
------------- ------------- ------------- -------------
Income (loss) before income taxes (benefit)
and extraordinary charge 17,255 (87,876) 24,885 (71,082)
Provision for income taxes (benefit) 8,624 (17,254) 12,154 (10,251)
------------- ------------- ------------- -------------
Income (loss) before extraordinary charge 8,631 (70,622) 12,731 (60,831)
Extraordinary charge, net of income
tax benefit 9,712 9,712
------------- ------------- ------------- -------------
Net income (loss) $ 8,631 $ (80,334) $ 12,731 $ (70,543)
============= ============= ============= =============
Basic earnings (loss) per common share:
Before extraordinary charge $ 0.20 $ (1.56) $ 0.30 $ (1.35)
Extraordinary charge (0.22) (0.22)
------------- ------------- ------------- -------------
Basic earnings (loss) per common share $ 0.20 $ (1.78) $ 0.30 $ (1.57)
============= ============= ============= =============
Basic weighted average number of shares
of common stock outstanding 43,765,127 45,071,587 42,949,938 44,810,718
Diluted earnings (loss) per common share:
Before extraordinary charge $ 0.20 $ (1.56) $ 0.29 $ (1.35)
Extraordinary charge (0.22) (0.22)
------------- ------------- ------------- -------------
Diluted earnings (loss) per common share $ 0.20 $ (1.78) $ 0.29 $ (1.57)
============= ============= ============= =============
Diluted weighted average number of shares
of common stock outstanding 44,149,515 45,071,587 43,317,274 44,810,718
</TABLE>
SEE ACCOMPANYING NOTES TO THE CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
2
<PAGE>
JP FOODSERVICE, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
------------------------------------
December 28, December 27,
1996 1997
--------------- ---------------
<S> <C> <C>
Cash flows from operating activities
Net income (loss) $ 12,731 $ (70,543)
Adjustments to reconcile net income (loss)
to net cash used in operating activities
Depreciation and amortization 30,748 31,679
Write-off of deferred financing costs 9,152
Asset impairment 32,135
Restructuring reserve 38,037
Other adjustments 899 3,594
Changes in working capital, net of effects
from acquisitions (79,029) (84,355)
--------------- ---------------
Net cash used in operating activities (34,651) (40,301)
--------------- ---------------
Cash flows from investing activities
Additions to property and equipment (37,654) (60,060)
Proceeds from disposal of property 6,435 6,677
Acquisitions of businesses, net of cash acquired (47,132) (118)
Other 5,500
--------------- ---------------
Net cash used in investing activities (72,851) (53,501)
--------------- ---------------
Cash flows from financing activities
Proceeds from public stock offering 66,525
Treasury stock purchases (12,417)
Increase in long-term debt, net 55,106 80,786
Principal payments under capital lease obligations (5,068) (2,978)
Financing costs (3,265)
Proceeds from employee stock purchases 2,534 10,474
Other (1,494) 5,198
--------------- ---------------
Net cash provided by financing activities 117,603 77,798
--------------- ---------------
Net increase (decrease) in cash and cash equivalents 10,101 (16,004)
Cash and cash equivalents
Beginning of period 34,269 74,432
--------------- ---------------
End of period $ 44,370 $ 58,428
=============== ===============
</TABLE>
SEE ACCOMPANYING NOTES TO THE CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
3
<PAGE>
JP FOODSERVICE, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The condensed consolidated financial statements of JP Foodservice, Inc. and its
consolidated subsidiaries (the "Company" or "JP Foodservice") at December 27,
1997 and for the three month and six month periods ended December 28, 1996 and
December 27, 1997, included herein are unaudited, but include all adjustments
(consisting only of normal recurring entries) which the Company's management
believes to be necessary for the fair presentation of the financial position,
results of operations and cash flows of the Company as of and for the periods
presented. Interim results are not necessarily indicative of results that may be
expected for the full year.
On December 23, 1997, in connection with an Agreement and Plan of Merger dated
June 30, 1997, as amended on September 3, 1997 and November 5, 1997 ( the
"Merger Agreement") Rykoff-Sexton, Inc. ("Rykoff-Sexton") was merged into a
wholly-owned subsidiary of JP Foodservice (the "Merger"). In connection with the
Merger, JP Foodservice issued 22,657,498 shares of common stock with an
approximate value of $782 million, such that each outstanding share of common
stock of Rykoff-Sexton was exchanged for .775 shares of JP Foodservice common
stock. The transaction has been accounted for under the pooling-of-interests
method of accounting. Accordingly, these condensed consolidated financial
statements restate the previously reported financial position, results of
operations and cash flows of the Company, including financial information for
Rykoff-Sexton for all periods presented.
Both JP Foodservice and Rykoff-Sexton have fiscal years which end on the
Saturday closest to June 30. The condensed consolidated balance sheet as of
June 28, 1997, combines the condensed consolidated balance sheets of JP
Foodservice and Rykoff-Sexton as of such date. The condensed consolidated
financial statements for the three month and six month periods December 28,1996
and December 27, 1997, combine the results of JP Foodservice for such periods
with the results of Rykoff-Sexton for the same three month and six month
periods.
The results of operations previously reported by the separate enterprises and
the combined amounts presented in the accompanying condensed consolidated
statement of operations for the three month period ended September 27, 1997, and
the three and six month periods ended December 28, 1997 are as follows (dollars
in thousands):
<TABLE>
<CAPTION>
Three Months Six Months Three Months
Ended Ended Ended
------------ ------------ -------------
December 28, December 28, September 27,
1996 1996 1997
------------ ------------ -------------
<S> <C> <C> <C>
Net sales:
Rykoff-Sexton $ 882,381 $1,787,208 $ 870,938
JP Foodservice 422,602 836,964 467,890
---------- ---------- ----------
Combined $1,304,983 $2,624,172 $1,338,828
========== ========== ==========
Net income:
Rykoff-Sexton $ 3,917 $ 5,963 $ 2,848
JP Foodservice 4,714 6,768 6,941
---------- ---------- ----------
Combined $ 8,631 $ 12,731 $ 9,789
========== ========== ==========
</TABLE>
4
<PAGE>
NOTE 2 - MERGER RELATED COSTS
In connection with the Merger, the Company incurred restructuring costs, asset
impairment charges, merger transaction costs and certain other operating charges
resulting from the integration of the two businesses ("the Merger Related
Costs"). These costs and charges are further described as follows:
Restructuring Costs
- -------------------
The Company recognized restructuring charges of $41.0 million, of which $16
million were non-cash charges, related to the Merger. These costs consist
primarily of change in control payments, severance, idle facility and facility
closure costs related principally to the Merger and the Company's plan to
consolidate and realign certain operating units and consolidate various overhead
functions. As of December 27, 1997, $8.3 million of severance and $7.7 million
of idle facility and facility closure costs have yet to be expended. During the
fiscal quarter ended December 27, 1997, the Company reversed $3 million of
Rykoff-Sexton restructuring accruals that are no longer necessary (see Note 5).
Asset Impairment
- ----------------
The Company recognized non-cash asset impairment charges of $32.1 million
related to the Company's plan to consolidate and realign certain operating units
and install new management information systems at each of the Company's
operating units. These charges consist of write-downs to net realizable value
of assets and facilities related to operating units that are being consolidated
or realigned and assets related to management information systems being
replaced.
Nonrecurring Acquisition Charges
- --------------------------------
During the fiscal quarter ended December 27, 1997, the Company incurred
nonrecurring acquisition charges related to the Merger. These charges, which
totaled $17.8 million, consist primarily of fees for financial advisory, legal,
accounting and other professional services.
Other Operating Costs
- ---------------------
The Company recognized additional charges related to the plan for operating unit
consolidation and realignment. The Company charged $6.1 million to cost of
goods sold and $15.6 million to operating expense for writedowns of inventory,
receivables and other current assets resulting from the integration of the two
businesses.
NOTE 3 - OUTWEST ACQUISITION
Effective October 30, 1997, the Company completed the acquisition of Outwest
Meat Company ("Outwest"), a foodservice distributor specializing in meats,
located in Las Vegas, Nevada. Under the terms of the acquisition, which was
accounted for as a purchase, the Company acquired 100% of the stock of Outwest
for approximately $10.5 million. The consideration was paid in the form of
Company common stock. The excess of purchase price over fair value of net
assets is approximately $7.1 million and will be amortized using the straight-
line method over 40 years.
5
<PAGE>
NOTE 4 - PRIOR NONRECURRING ACQUISITION CHARGES
During the three months ended December 28, 1996, the Company recorded a
nonrecurring charge of approximately $2 million with respect to the estimated
legal and other professional fees required to complete the acquisition of Squeri
Food Service, Inc. In addition, the Company revised the estimated transaction
costs of the acquisition of Valley Industries, Inc. from $5.3 million (recorded
in the three months ended September 28, 1996) to $3.4 million. The Company also
adjusted its effective tax rate to reflect the tax treatment of certain
transaction costs incurred in these acquisitions.
NOTE 5 - PRIOR RESTRUCTURING COSTS
In connection with its acquisition of US Foodservice Inc. on May 17, 1996,
Rykoff-Sexton recorded a restructuring charge of $57.6 million ($35.7 million
after tax) in the transition period ended June 29, 1996. Approximately $10.7
million related to severance and termination benefit costs, $20.2 million
related to lease related costs and $26.7 million related to other exit costs,
including the closure of duplicate facilities and other integration activities.
During the fiscal quarter ended December 27, 1997, the Company charged $2.6
million against the restructuring liability and reversed excess reserves of $3
million, leaving a balance of $18.2 million for future costs to be incurred. The
$2.6 million utilization primarily consisted of $.4 million in severance
payments, $.9 million in lease-related costs and the balance for closure costs,
asset writedowns and other obligations arising from the Company's restructuring
program. Most of the remaining cash outlays are estimated to be paid in
subsequent years and are primarily related to non-cancelable operating lease
commitments.
NOTE 6 - NEW CREDIT FACILITY
On December 23, 1997, in connection with the consummation of the Merger, the
Company entered into a new bank credit facility which provides for a $550
million five-year revolving credit facility and a $200 million revolver/term
loan facility which is renewable annually (the "New Credit Facility"). Amounts
drawn initially under the New Credit Facility will bear interest at a rate equal
to LIBOR plus .45% under the first facility and LIBOR plus .475% under the
latter facility. The revolving credit facility includes a $75 million facility
for standby and commercial letters of credit and a $50 million swing-line
facility for same day borrowings.
The New Credit Facility includes a number of covenants which restrict the
Company's ability to pay dividends and incur additional indebtedness and which
require the Company to maintain certain financial ratios.
Borrowings under the New Credit Facility have been used to repay borrowings
under the former JP Foodservice and Rykoff-Sexton revolving and term loan
facilities and under the JP Foodservice senior notes due 2004.
NOTE 7 - EXTRAORDINARY CHARGE
As described in Note 6, during the fiscal quarter ended December 27, 1997 and
subsequent to the Merger, the Company applied the proceeds of its New Credit
Facility to refinance substantially all of its indebtedness (excluding capital
leases, the Public Notes referred to in Note 8, and approximately $30 million of
other indebtedness) in order to lower significantly its overall borrowing costs.
As a result of this refinancing, the Company recorded an extraordinary charge of
$9.7 million (net of $6.3 million income tax benefit) related to the write-off
of deferred financing costs with respect to the extinguished debt and additional
payments to holders of the Company's senior notes due 2004 in accordance with
the senior note terms.
6
<PAGE>
NOTE 8 - SWAP OPTION AGREEMENT
In November 1997, the Company entered into a SWAP Option Agreement ("Swaption")
in order to hedge its exposure to rising interest rates related to the potential
refinancing of $130 million of outstanding senior subordinated notes due 2003
issued by Rykoff-Sexton ("Public Notes"). Under the terms of the Swaption
agreement, the Company extended an option to a third party to execute a swap
with the Company on the call date of the Public Notes, pursuant to which the
Company would pay interest on the notional amount of $130 million to the third
party at 8.875% (the Public Notes interest rate) and receive from the third
party an amount equal to the call premium on the Public Notes and interest on
the notional amount at 90-day LIBOR plus .625%. The Company also received an up-
front premium related to this option which has been classified on the balance
sheet as deferred revenue.
NOTE 9 - BASIC AND FULLY DILUTED EARNINGS (LOSS) PER COMMON SHARE
During the second quarter of fiscal 1998, the Company adopted the provisions of
Statement of Financial Accounting Standard No. 128, "Earnings Per Share" (FAS
128). FAS 128 established new definitions for calculating and disclosing basic
and diluted earnings per share. In accordance with FAS 128, all prior periods
have been restated to conform to the new methodology. The restated amounts did
not differ materially from amounts previously reported.
NOTE 10 - STOCKHOLDERS' EQUITY
At the annual meeting of stockholders on December 23, 1997, stockholders of JP
Foodservice approved (i) an increase in the authorized number of shares of
common stock to 150,000,000, (ii) an increase in the number of shares of common
stock authorized for issuance pursuant to the JP Foodservice, Inc. 1994 Stock
Incentive Plan to 2,600,000 shares and (iii) an increase in the number of shares
of common stock authorized for issuance pursuant to the JP Foodservice Stock
Option Plan for Outside Directors to 200,000 shares.
NOTE 11 - CONTINGENCIES
From time to time, the Company is involved in litigation and proceedings arising
out of the ordinary course of business. There are no pending material legal
proceedings or environmental investigations to which the Company is a party or
to which the property of the Company is subject as of the date of this report.
7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Statements in this Management's Discussion with respect to management's
expectations regarding the Company's liquidity needs and resources constitute
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These
statements are subject to risks and uncertainties that could cause the Company's
actual results to differ materially. Such risks and uncertainties include the
sensitivity of the Company's business to national and regional economic
conditions, the effects of inflation and deflation in food prices, the highly
competitive markets in which the Company operates and the Company's ability to
implement an acquisition program. The Company's Current Report on Form 8-K,
filed with the Securities and Exchange Commission on April 23, 1997, discusses
some of the important factors that could cause the Company's actual results to
differ materially from those in such forward-looking statements.
Overview
- --------
Effective December 23, 1997, Rykoff-Sexton was merged into a wholly-owned
subsidiary of JP Foodservice (the "Merger"). The Company has accounted for the
combination under the pooling-of-interests method. Accordingly, the condensed
consolidated statements of operations for the three and six month periods ended
December 28, 1996 and the three month period ended September 27, 1997,
respectively, have been restated to include the results of Rykoff-Sexton for the
three and six month periods ended December 28, 1996 and the three month period
ended September 27, 1997, respectively.
As a result of the Merger and in connection with the Company's plan to
consolidate and realign certain operating units and functions in the combined
company, the Company incurred restructuring costs, asset impairment charges,
merger transaction costs and certain other costs (the "Merger Related Costs") of
approximately $83.4 million (net of related tax benefits). The diluted earnings
per share impact of the Merger Related Costs was $1.84. The Merger Related Costs
are presented in various categories within the statements of operations and the
impact of these costs is separately discussed.
Net Sales
- ---------
The Company's net sales of $1.37 billion for the three months ended December
27, 1997 (the "1998 fiscal quarter") represented a 5.2% increase from the $1.31
billion net sales level achieved for the three months ended December 28, 1996
(the "1997 fiscal quarter"). For the six months ended December 27, 1997 (the
"1998 fiscal six-month period"), net sales increased 3.4% to $2.71 billion from
$2.62 billion for the six months ended December 28, 1996 (the "1997 fiscal six
month period").
Growth in both chain account and street sales contributed to the increase in
sales. Chain account sales increased 4.9% for the 1998 fiscal quarter and 2.9%
for the 1998 fiscal six-month period. An increase of 5.5% in street sales for
the 1998 fiscal quarter and 3.6% for the 1998 fiscal six-month period resulted
principally from the growth of the street sales force and the acquisitions of
Mazo-Lerch Company ("Mazo Lerch") in the fourth quarter of fiscal 1997 and
Outwest Meat Company ("Outwest") in the 1998 fiscal quarter. As a percentage of
net sales, street sales increased to 59.3% from 59.2% for both the 1998 fiscal
quarter and 1998 fiscal six-month period.
On a pre-Merger basis, JP Foodservice's net sales of $469 million for the 1998
fiscal quarter represented an 11.0% increase from the $423 million net sales
level achieved for the 1997 fiscal quarter. For the 1998 fiscal six-month
period, net sales increased 11.9% to $937 million from $837 million for the 1997
fiscal six-month period. The acquisitions of Mazo Lerch and Outwest accounted
for sales growth of 5.8% and 5.1% for the 1998 fiscal quarter and 1998 fiscal
six-month period, respectively.
Rykoff-Sexton's net sales of $904 million for the 1998 fiscal quarter
represented a 2.5% increase from the $882 million net sales level achieved for
the 1997 fiscal quarter. For the 1998 fiscal six-month period, net sales
decreased 0.7% to $1,775 million from $1,787 million for the 1997 fiscal six-
month period.
8
<PAGE>
Gross Profit
- ------------
The Company's gross profit decreased to 18.7% in the 1998 fiscal quarter and to
18.9% in the 1998 fiscal six-month period from 19.5% in the 1997 fiscal quarter
and 19.2% in the 1997 fiscal six-month period. The decrease was primarily
attributable to a non-cash charge of $6.1 million for writedowns of inventory at
operating units undergoing consolidation or realignment as part of the merger
plan.
Excluding the effects of these Merger Related Costs, gross profit decreased to
19.1% in both the 1998 fiscal quarter and 1998 fiscal six-month period from
19.5% in the 1997 fiscal quarter and from 19.2% in the 1997 fiscal six-month
period. This decrease was due primarily to a continuing shift in product mix
from certain high-margin items to higher turnover, lower-margin items
("center-of-the-plate" or entree products) in the former Rykoff-Sexton
operations. The effect on gross profit of the shift in product mix was offset in
part by an increase in street sales as a percentage of net sales in the 1998
fiscal quarter and the growth of the Company's private and signature brand
product sales in both current periods. Sales of these products, which generally
have higher gross margins than national brand products of comparable quality,
increased by 7.1% for the 1998 fiscal quarter and 3.4% for the 1998 fiscal six-
month period over the corresponding periods in the prior fiscal year. On a pre-
Merger basis, private label and signature brand sales by JP Foodservice
increased by 29.7% for the 1998 fiscal quarter and 24.8% for the 1998 fiscal
six-month period over the prior corresponding periods.
Operating Expenses
- ------------------
Operating expenses increased by 8.9% ($19.0 million) in the 1998 fiscal quarter
and by 5.2% ($22.2 million) in the 1998 fiscal six-month period over the
corresponding periods in the prior fiscal year. Operating expenses
as a percentage of net sales increased to 16.9% in the 1998 fiscal quarter
from 16.4% in the prior corresponding period. For the 1998 fiscal six-month
period, operating expenses as a percentage of net sales increased to 16.6% from
16.3% for the prior corresponding period. These increases were entirely
attributable to $15.6 million of non-cash charges primarily consisting of
writedowns of receivables and other assets at operating units undergoing
consolidation or realignment as part of the merger plan. The Company is
considering additional operating unit and product consolidations for which plans
are currently being formulated. The Company expects additional writedowns of
receivables and inventory in the third quarter of fiscal 1998 related to these
plans and estimates this additional charge will not exceed $15 million.
Excluding the effects of these non-cash charges, operating expenses increased by
1.6% ($3.4 million) for the 1998 fiscal quarter and by 1.6% ($6.6 million) for
the 1998 fiscal six-month period over the prior corresponding periods. As a
percentage of net sales, operating expenses decreased to 15.8% in the 1998
fiscal quarter from 16.4% in the 1997 fiscal quarter and decreased to 16.0% in
the 1998 fiscal six-month period from 16.3% in the prior corresponding period.
This decrease was primarily attributable to the operating efficiencies realized
from the Company's prior acquisitions and to an increase in the average size of
customer deliveries.
Restructuring Costs
- -------------------
The Company recognized restructuring charges of $41.0 million, of which $16
million were non-cash charges, related to the Merger. These costs consist
primarily of change in control payments, severance, idle facility and facility
closure costs related principally to the Merger and the Company's plan to
consolidate and realign certain operating units and consolidate various overhead
functions. During the 1998 fiscal quarter, the Company reversed $3 million of
Rykoff-Sexton restructuring accruals that are no longer necessary (see Note 5 to
the financial statements appearing elsewhere in this report). The Company
expects to recognize an additional severance charge in the third quarter of
fiscal 1998 of $5 million to $10 million.
Asset Impairment
- ----------------
The Company recognized non-cash asset impairment charges of $32.1 million
related to the Company's plan to consolidate and realign certain operating units
and install new management information systems at each of the Company's
operating units. These charges consist of write-downs to net realizable value
of assets and facilities related to operating units that are being consolidated
or realigned and assets related to management information systems being
replaced.
9
<PAGE>
Income from Operations
- ----------------------
Income from operations (after amortization charges of $3.7 million in the 1998
fiscal quarter and $4.2 million in the 1997 fiscal quarter) decreased 234.9%
($86.6 million) in the 1998 fiscal quarter from the 1997 fiscal quarter. For
the 1998 fiscal six-month period, income from operations decreased 120.7% ($81.9
million) from the corresponding prior period. The decrease in the 1998 periods
was entirely attributable to Merger Related Costs.
Excluding the Merger Related Costs, income from operations (after amortization
charges of $3.7 million in the 1998 fiscal quarter and $4.2 million in the 1997
fiscal quarter) increased 14.0% ($5.2 million) in the 1998 fiscal quarter over
the 1997 fiscal quarter. For the 1998 fiscal six-month period, income from
operations increased 14.6% ($9.9 million) over the corresponding prior period.
This increase was primarily attributable to operating efficiencies realized from
prior acquisitions and to an increase in the average size of customer
deliveries.
Nonrecurring Acquisition Charges
- --------------------------------
During the 1998 fiscal quarter, the Company incurred nonrecurring acquisition
charges related to the Merger. These charges consist primarily of fees for
financial advisory, legal, accounting and other professional services.
During the 1997 fiscal quarter, the Company recorded a nonrecurring charge of
approximately $2 million with respect to the estimated legal and other
professional fees required to complete the acquisition of Squeri Food Service,
Inc. In addition, the Company revised the estimated transaction costs of the
acquisition of Valley Industries, Inc. from $5.3 million (recorded in the three
months ended September 28, 1996) to $3.4 million. As a result, the Company
recorded a charge of $.1 million for the 1997 fiscal quarter and $5.4 million
for the 1997 fiscal six-month period.
Income Taxes
- ------------
During the three and six month periods ended December 27, 1997, the Company
recognized tax benefits with respect to its operating loss at effective rates of
(19.6)% and (14.4)%, respectively. These rates reflect the effect on the income
tax provision of the tax deductibility of certain of the Merger Related Costs
and the amortization of goodwill. The Company's effective tax rate before the
effect of the Merger Related Costs was 44.8% for the 1998 fiscal quarter and
45.3% for the 1998 fiscal six-month period.
Extraordinary Charge
- --------------------
During the 1998 fiscal quarter and subsequent to the Merger, the Company
applied the proceeds of its new credit facility (the "New Credit Facility") to
refinance substantially all of its indebtedness (excluding capital leases, the
public notes referred to in Note 8 to the financial statements appearing
elsewhere in this report, and approximately $30 million of other indebtedness)
in order to lower significantly its overall borrowing costs. As a result of this
refinancing, the Company recorded an extraordinary charge of $9.7 million (net
of $6.3 million income tax benefit) related to the write-off of deferred
financing costs with respect to the extinguished debt and additional payments to
holders of the Company's senior notes due 2004 in accordance with the related
senior note terms. See Note 6 to the financial statements appearing elsewhere in
this report.
Liquidity and Capital Resources
- -------------------------------
As of December 27, 1997, the Company's total long-term indebtedness, including
current portion, was $765 million, with an overall weighted average interest
rate of 6.9% (excluding deferred financing costs). Long-term borrowing
increased by $82 million during the six months ended December 27, 1997 primarily
as a result of increased working capital, capital expenditures and Merger-
related costs.
The Company's working capital balance (excluding current portion of long-term
debt) of $304.5 million at December 27, 1997 increased by $41.6 million from the
balance at June 28, 1997. This increase was primarily attributable to increased
net sales, seasonal increases in inventory and receivables, and the acquisitions
consummated. The $60.6 million of capital expenditures resulted mainly from the
Company's new facility projects in Charlotte, North Carolina and Las Vegas,
Nevada.
The Merger Related Costs are expected to be offset over the next two years with
the proceeds from the disposition of duplicate facilities. The current net book
value of assets held for sale exceeds $55 million.
10
<PAGE>
From time to time, the Company considers the acquisition of other foodservice
businesses. Any such business may be acquired for cash, common stock of the
Company, or a combination of cash and common stock.
On January 30, 1998, the Company made an offer to purchase for cash $130 million
of outstanding senior subordinated notes due 2003 at a price of 101% of
principal amount, plus accrued and unpaid interest. The offer is made pursuant
to the Indenture governing the notes as a result of the change of control of
Rykoff-Sexton, the issuer of the notes, effected by the Merger. The Company
expects to fund any payments required pursuant to the purchase offer with
borrowings under the New Credit Facility.
As of December 27, 1997, $510.5 million of borrowings and $39.6 million of
letters of credit were outstanding under the New Credit Facility and an
additional $199.9 million remained available to finance the Company's working
capital needs and to meet the Company's other liquidity requirements. The
Company believes that the combination of the cash flow generated by its
operations, additional leasing activity, duplicate asset sales and borrowings
under the New Credit Facility will be sufficient to enable it to finance its
growth and meet its currently projected capital expenditures and other liquidity
requirements.
Information Systems and the Impact of the Year 2000
- ---------------------------------------------------
The Company is currently installing new hardware and financial systems software
in each of its operating units. The project is currently anticipated to be
complete in the fall of 1999 and will result in each of its operating units
being on the same hardware and software platforms, all of which are expected to
be Year 2000 compliant.
The Company has been in communication with major suppliers and customers to
determine the extent to which the Company may be vulnerable to such parties'
failure to remediate their own systems in response to the Year 2000 issue. The
Company is not aware at this time of any material adverse impact on the Company
that may result from its relationships with such suppliers and customers.
However, the remediation process is ongoing. Accordingly, management cannot
presently reasonably predict, what impact, if any, the Year 2000 issue will have
on the Company.
11
<PAGE>
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds.
(c) On October 30, 1997, JP Foodservice issued, in the aggregate,
372,917 shares of its common stock valued at approximately $10.5 million to
The John S. Beuchat 1997 Irrevocable Trust and The John S. Beuchat Living Trust
(the "Beuchat Trusts"). The Beuchat Trusts were the sole stockholders of Outwest
Meat Company, a company JP Foodservice acquired in consideration of its issuance
of shares of common stock. See Note 3 to the financial statements appearing
elsewhere in this report. In connection with such issuance, JP Foodservice
relied on the exemption from registration under the Securities Act of 1933
provided in Section 4(2) of such Act. JP Foodservice did not engage in any
advertising or general solicitation in connection with the offer and sale of the
securities. In addition, JP Foodservice provided or made available information
concerning JP Foodservice and the common stock, obtained investment
representations from each of the Beuchat Trusts and placed restrictive legends
on the certificates evidencing such securities.
Item 4. Submission of Matters to a Vote of Security Holders.
(a) JP Foodservice held its 1997 annual meeting of stockholders (the
"1997 annual meeting") on December 23, 1997.
(c) The following sets forth information regarding each matter voted
upon at the 1997 annual meeting. There were 22,608,346 shares of common stock
outstanding as of the record date for, and entitled to vote at, the 1997 annual
meeting.
Proposal No. 1. The stockholders approved the issuance of JP
Foodservice common stock in connection with the Merger. The tabulation of votes
on this proposal is as follows:
<TABLE>
<S> <C>
For 15,597,997
Withheld/Against 16,289
Exception/Abstain 29,480
----------
Total Shares Voted 15,643,766
Broker Non-Votes 1,421,408
</TABLE>
Proposal No. 2. The stockholders approved election of each of the
nominees to the Board of Directors. The tabulation of votes on this proposal is
as follows:
12
<PAGE>
<TABLE>
<CAPTION>
Nominee For Withheld
----------------- ---------- --------
<S> <C> <C>
David M. Abramson 17,038,467 26,707
James L. Miller 17,038,849 26,325
Dean R. Silverman 17,041,411 23,763
</TABLE>
Proposal No. 3. The stockholders approved a proposal to amend JP
Foodservice's Restated Certificate of Incorporation to increase the number of
authorized shares of JP Foodservice common stock from 75,000,000 shares to
150,000,000 shares. The tabulation of votes on this proposal is as follows:
<TABLE>
<S> <C>
For 15,777,118
Withheld/Against 96,633
Exception/Abstain 28,054
----------
Total Shares Voted 15,901,805
Broker Non-Votes 1,163,369
</TABLE>
Proposal No. 4. The stockholders approved a proposal to (i) amend the
JP Foodservice, Inc. 1994 Stock Incentive Plan (the "Stock Incentive Plan") to
increase the number of shares of JP Foodservice common stock authorized for
issuance under the Stock Incentive Plan from 1,532,404 shares to 2,600,000
shares and (ii) amend the Stock Incentive Plan for purposes of Section 162(m) of
the Internal Revenue Code of 1986, as amended, and regulations thereunder. The
tabulation of votes on this proposal is as follows:
<TABLE>
<S> <C>
For 11,090,260
Withheld/Against 4,502,334
Exception/Abstain 37,985
----------
Total Shares Voted 15,630,579
Broker Non-Votes 1,434,595
</TABLE>
Proposal No. 5. The stockholders approved a proposal to amend the JP
Foodservice, Inc. Stock Option Plan for Outside Directors (the "Director Plan")
to (a) increase the number of shares of JP Foodservice common stock authorized
for issuance under the Director Plan from 100,000 shares to 200,000 shares, (b)
increase the number of shares of JP Foodservice common stock subject to annual
13
<PAGE>
option grants under the Director Plan from 1,000 shares to 2,000 shares and (c)
modify the eligibility requirements for awards under the Director Plan. The
tabulation of votes on this proposal is as follows:
<TABLE>
<S> <C>
For 16,179,495
Withheld/Against 584,711
Exception/Abstain 42,929
----------
Total Shares Voted 16,807,135
Broker Non-Votes 258,039
</TABLE>
Item 5. Other Information.
On November 17, 1997, JP Foodservice announced that its Board of
Directors had authorized the repurchase by JP Foodservice from time to time of
up to 500,000 shares of its common stock in the open market or otherwise. As of
the date of this report, JP Foodservice had repurchased 422,800 shares of its
common stock pursuant to the stock repurchase program.
Item 6. Exhibits and Reports on Form 8-K.
(a) See Exhibit Index beginning on page E-1.
(b) The following Current Reports on Form 8-K were filed by JP
Foodservice during the period covered by this report.
Date of Report Item Reported
------------------- ------------------------
November 5, 1997 Item 5 (Amendment of
Merger Agreement)
November 17, 1997 Item 5 (Stock Repurchase
Program)
14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
JP FOODSERVICE, INC.
(Registrant)
DATE February 10, 1998 /s/ Lewis Hay, III
----------------------------------------
Lewis Hay, III, Executive Vice President
and Chief Financial Officer
(Duly Authorized and Principal
Financial Officer)
15
<PAGE>
EXHIBIT INDEX
**4.1.1 Indenture, dated as of November 1, 1993, between Rykoff-Sexton, Inc.
and Norwest Bank Minnesota, N.A., as trustee (incorporated by
reference from Rykoff-Sexton, Inc.'s Quarterly Report on Form 10-Q
for the fiscal quarter ended October 30, 1993).
*4.1.2 Supplemental Indenture, dated as of May 17, 1996, among Rykoff-
Sexton, Inc., the guarantors listed on the signature pages thereof
and Norwest Bank Minnesota, N.A., as trustee.
*4.1.3 Second Supplemental Indenture, dated as of December 23, 1997, among
Rykoff-Sexton, Inc., the guarantors listed on the signature pages
thereof and Norwest Bank Minnesota, N.A., as trustee.
*4.2 Common Stock Purchase Warrants Expiring September 30, 2005.
*10.1.1 Five Year Credit Agreement, dated as of December 23, 1997, among
Rykoff-Sexton, Inc. and JP Foodservice Distributors, Inc., the
Lenders Parties Thereto, NationsBank, N.A., as Administrative Agent,
NationsBanc Montgomery Securities, Inc. and Chase Securities, Inc.,
as Co-Arrangers, The Chase Manhattan Bank, as Syndication Agent, and
Bank of America, NT & SA, as Documentation Agent.
*10.1.2 Five Year Guaranty Agreement, dated as of December 23, 1997, among
JP Foodservice, Inc., the Subsidiaries of the Borrowers identified
therein and NationsBank, N.A., as Administrative Agent.
*10.2.1 364-Day Credit Agreement, dated as of December 23, 1997, among
Rykoff-Sexton, Inc. and JP Foodservice Distributors, Inc., the
Lenders Parties Thereto, NationsBank, N.A., as Administrative Agent,
NationsBanc Montgomery Securities, Inc. and Chase Securities, Inc.,
as Co-Arrangers, The Chase Manhattan Bank, as Syndication Agent, and
Bank of America, NT & SA, as Documentation Agent.
*10.2.2 364-Day Guaranty Agreement, dated as of December 23, 1997, among JP
Foodservice, Inc., the Subsidiaries of the Borrowers identified
therein and NationsBank, N.A., as Administrative Agent.
**10.3.1 Participation Agreement, dated as of April 29, 1994, entered into
among Rykoff-Sexton, Inc., as Lessee ("Lessee"), Tone Brothers,
Inc., as Sublessee ("Sublessee"), BA Leasing & Capital Corporation,
as Agent ("Agent"), Manufacturers Bank and Pitney Bowes Credit
Corporation, as Lessors (the "Lessors") (incorporated by reference
E-1
<PAGE>
from Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal
year ended April 30, 1994).
**10.3.2 Lease Intended as Security, dated as of April 29, 1994, among
Lessee, Agent and the Lessors (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended April 30, 1994).
**10.3.3 Sublease, dated as of April 29, 1994, between Lessee and Sublessee
(incorporated by reference from Rykoff-Sexton, Inc.'s Annual Report
on Form 10-K for the fiscal year ended April 30, 1994).
**10.3.4 Lease supplement, dated as of April 29, 1994, among Lessee and the
Lessors (incorporated by reference from Rykoff-Sexton, Inc.'s Annual
Report on Form 10-K for the fiscal year ended July 1, 1995).
**10.3.5 Lease supplement, dated as of January 27, 1995, among Lessee and the
Lessors (incorporated by reference from Rykoff-Sexton, Inc.'s Annual
Report on Form 10-K for the fiscal year ended July 1, 1995).
**10.3.6 Lease supplement, dated as of April 18, 1995, among Lessee and the
Lessors (incorporated by reference from Rykoff-Sexton, Inc.'s Annual
Report on Form 10-K for the fiscal year ended July 1, 1995).
*10.3.7 Waiver, Consent and Fifth Amendment to Participation Agreement,
dated as of December 23, 1997, among Lessee, Hudson Acquisition
Corp., Agent and the Lessors.
*10.3.8 Guaranty, dated as of December 23, 1997, of JP Foodservice, Inc. in
favor of Agent.
**10.4.1 Receivables Sale Agreement, dated as of November 15, 1996, among
Rykoff-Sexton, Inc., John Sexton & Co., Biggers Brothers, Inc.,
White Swan, Inc., F.H. Bevevino & Company, Inc., Roanoke Restaurant
Service, Inc., King's Foodservice, Inc., US Foodservice of Florida,
Inc., US Foodservice of Atlanta, Inc., RS Funding Inc. and US
Foodservice Inc., as Servicer (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended June 28, 1997).
**10.4.2 Servicing Agreement, dated as of November 15, 1996, among RS Funding
Inc., as Company, US Foodservice Inc., as Servicer, Rykoff-Sexton,
Inc. and its other subsidiaries named therein as Sub-Servicers and
The Chase Manhattan Bank, as Trustee (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended June 28, 1997).
E-2
<PAGE>
**10.4.3 Pooling Agreement, dated as of November 15, 1996, among RS Funding
Inc., as Company, US Foodservice Inc., as Servicer, and The Chase
Manhattan Bank, as Trustee (incorporated by reference from Rykoff-
Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year ended
June 28, 1997).
**10.4.4 Series 1996-1 Supplement to Pooling Agreement among RS Funding Inc.,
as Company, US Foodservice Inc., as Servicer, and The Chase
Manhattan Bank, as Trustee (incorporated by reference from Rykoff-
Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year ended
June 28, 1997).
**10.5 Indenture of Trust, dated as of November 1, 1996, between La Mirada
Industrial Development Authority and Bankers Trust Company of
California, N.A. (incorporated by reference from Rykoff-Sexton,
Inc.'s Annual Report on Form 10-K for the fiscal year ended June 28,
1997).
**10.6 Loan Agreement, dated as of November 1, 1996, among La Mirada
Industrial Development Authority and Bankers Trust Company of
California, N.A. (incorporated by reference from Rykoff-Sexton,
Inc.'s Annual Report on Form 10-K for the fiscal year ended June 28,
1997).
**10.7.1 Reimbursement Agreement, dated as of November 1, 1996, between
Rykoff-Sexton, Inc. and the First National Bank of Chicago
(incorporated by reference from Rykoff-Sexton, Inc.'s Annual Report
on Form 10-K for the fiscal year ended June 28, 1997).
*10.7.2 Amendment, Consent and Assumption Agreement, dated as of December
18, 1997, among Rykoff-Sexton, Inc., Hudson Acquisition Corp. and
The First National Bank of Chicago.
10.8 JP Foodservice, Inc. 1994 Stock Incentive Plan, as amended as of
December 23, 1997 (incorporated by reference from JP Foodservice,
Inc.'s Registration Statement on Form S-4 (Commission File No. 333-
32711)).
10.9 JP Foodservice, Inc. Stock Option Plan for Outside Directors, as
amended as of December 23, 1997 (incorporated by reference from JP
Foodservice, Inc.'s Registration Statement on Form S-4 (Commission
File No. 333-32711)).
E-3
<PAGE>
**10.10 Rykoff-Sexton, Inc. 1988 Stock Option and Compensation Plan, as
amended on September 13, 1991 (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended May 1, 1993, as amended).
**10.11.1 Rykoff-Sexton, Inc. 1993 Director Stock Option Plan (incorporated
by reference from Rykoff-Sexton, Inc.'s Quarterly Report on Form 10-
Q for the fiscal quarter ended October 30, 1993).
10.11.2 First Amendment to the Rykoff-Sexton, Inc. 1993 Director Stock
Option Plan (incorporated by reference from Rykoff-Sexton, Inc.'s
Registration Statement on Form S-4 (Commission File No. 333-02715)).
10.12.1 Agreement of Lease, dated February 28, 1996, between Paul-Francis
Realty, L.P. and US Foodservice Inc. (incorporated by reference from
Rykoff-Sexton, Inc.'s Registration Statement on Form S-4 (Commission
File No. 333-02715)).
**10.12.2 Lease Letter Amendment, dated February 28, 1997, between Paul-
Francis Realty, L.P. and US Foodservice Inc. (incorporated by
reference from Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for
the fiscal year ended June 28, 1997).
**10.12.3 Second Amendment to Agreement of Lease, dated July 1, 1997, between
Paul-Francis Realty, L.P. and US Foodservice Inc. (incorporated by
reference from Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for
the fiscal year ended June 28, 1997).
**10.12.4 Agreement of Lease, dated November 28, 1996, between Paul-Francis
Realty, L.P. and Rykoff-Sexton, Inc. (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended June 28, 1997).
10.13 Agreement and Plan of Merger, dated February 2, 1996, among Rykoff-
Sexton, Inc., USF Acquisition Corporation and US Foodservice Inc.
(incorporated by reference from Rykoff-Sexton, Inc.'s Registration
Statement on Form S-4 (Commission File No. 333-02715)).
10.14.1 Commitment Agreement, dated as of August 10, 1992, between BRB
Holdings, Inc. and its subsidiaries and Sara Lee Corporation
(incorporated by reference from Rykoff-Sexton, Inc.'s Registration
Statement on Form S-4 (Commission File No. 333-02715)).
E-4
<PAGE>
10.14.2 Amendment Number One to BRB Holdings Commitment Agreement, dated as
of September 27, 1995, by Sara Lee Corporation and BRB Holdings,
Inc. and guaranteed by US Foodservice Inc. (incorporated by
reference from Rykoff-Sexton, Inc.'s Registration Statement on Form
S-4 (Commission File No. 333-02715)).
10.15.1 Commitment Agreement, dated as of August 10, 1992, between WS
Holdings Corporation and its subsidiaries and Sara Lee Corporation
(incorporated by reference from Rykoff-Sexton's Registration
Statement on Form S-4 (Commission File No. 333-02715)).
10.15.2 Amendment Number One to WS Holdings Commitment Agreement, dated as
of September 27, 1995, by Sara Lee Corporation and WS Holdings
Corporation (incorporated by reference from Rykoff-Sexton, Inc.'s
Registration Statement on Form S-4 (Commission File No. 333-02715)).
**10.16 Letter Agreement, dated as of June 20, 1994, between Harold E.
Feather and Rykoff-Sexton, Inc. (incorporated by reference from
Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for the fiscal year
ended April 30, 1994).
10.17 Letter Agreement, dated July 18, 1994, between Harold E. Feather and
Rykoff-Sexton, Inc. (incorporated by reference from Rykoff-Sexton,
Inc.'s Registration Statement on Form S-4 (Commission File No. 333-
32711)).
**10.18 Form of Second Amended and Restated Change in Control Agreement,
dated as of June 10, 1997, for Harold E. Feather (incorporated by
reference from Rykoff-Sexton, Inc.'s Annual Report on Form 10-K for
the fiscal year ended June 28, 1997).
10.19 Rykoff-Sexton, Inc. Supplemental Executive Retirement Plan for Mark
Van Stekelenburg as of July 20, 1994, as amended June 19, 1995
(incorporated by reference from Rykoff-Sexton, Inc.'s Registration
Statement on Form S-4 (Commission File No. 333-32711)).
10.20.1 Form of Amended and Restated Supplemental Executive Retirement Plan
for Robert J. Harter, Jr., Harold E. Feather, Richard J. Martin and
Alan V. Giuliani (incorporated by reference from Rykoff-Sexton,
Inc.'s Registration Statement on Form S-4 (Commission File No. 333-
32711)).
E-5
<PAGE>
**10.20.2 Form of Amendment to Supplemental Executive Retirement Plan for
Robert J. Harter, Jr., Harold E. Feather, Richard J. Martin and Alan
V. Giuliani (incorporated by reference from Rykoff-Sexton, Inc.'s
Annual Report on Form 10-K for the fiscal year ended June 28, 1997).
10.21 Form of Severance Agreement, dated as of February 2, 1996, for
Harold E. Feather (incorporated by reference from Rykoff-Sexton,
Inc.'s Registration Statement on Form S-4 (Commission File No. 333-
32711)).
10.22.1 Rykoff-Sexton, Inc. Deferred Compensation Plan Master Plan Document
(incorporated by reference from Rykoff-Sexton, Inc.'s Registration
Statement on Form S-4 (Commission File No. 333-32711)).
10.22.2 Amendment to Rykoff-Sexton, Inc. Deferred Compensation Plan
(incorporated by reference from Rykoff-Sexton, Inc.'s Registration
Statement on Form S-4 (Commission File No. 333-32711)).
**10.22.3 Second Amendment to Rykoff-Sexton, Inc. Deferred Compensation Plan
(incorporated by reference from Rykoff-Sexton, Inc.'s Annual Report
on Form 10-K for the fiscal year ended June 28, 1997).
10.23.1 Rykoff-Sexton, Inc. Master Trust Document for Executive Deferral
Plans (incorporated by reference from Rykoff-Sexton, Inc.'s
Registration Statement on Form S-4 (Commission File No. 333-32711)).
10.23.2 Amendment to Rykoff-Sexton, Inc. Master Trust Document (incorporated
by reference from Rykoff-Sexton, Inc.'s Registration Statement on
Form S-4 (Commission File No. 333-32711)).
**10.23.3 Second Amendment to Rykoff-Sexton, Inc. Master Trust Document
(incorporated by reference from Rykoff-Sexton, Inc.'s Annual Report
on Form 10-K for the fiscal year ended June 28, 1997).
- ------------------
* Filed herewith.
** Commission File No. 0-8105.
E-6
<PAGE>
EXHIBIT 4.1.2
SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE dated as of May 17, 1996 (this
"Supplemental Indenture") is among RYKOFF-SEXTON, INC., a Delaware corporation
----------------------
(the "Company"), the guarantors listed on the signature pages hereof
-------
(individually a "Guarantor" and collectively the "Guarantors") and NORWEST BANK
--------- ----------
MINNESOTA, N.A., as trustee under the Indenture referred to below (in such
capacity, the "Trustee").
-------
WITNESSETH:
----------
WHEREAS, the Company and the Trustee are parties to the Indenture
dated as of November 1, 1993 (the "Indenture"), pursuant to which the Company
---------
issued its 8 7/8% Senior Subordinated Notes due 2003 (the "Securities");
----------
WHEREAS, the Company is acquiring all of the issued and outstanding
capital stock of US Foodservice Inc.;
WHEREAS, in connection with such acquisition, the Company is entering
into the Credit Agreement dated as of May 17, 1996 (such agreement, as it may be
------ ---------
amended, waived or otherwise modified from time to time, hereinafter called the
"Credit Agreement") among the Company, the financial institutions parties
thereto, and Bank of America National Trust and Savings Association, as
Administrative Agent, The Chase Manhattan Bank, N.A., as Documentation Agent,
and BA Securities, Inc. and Chase Securities, Inc. as Co-Arrangers;
WHEREAS, the terms of the Credit Agreement require the Guarantors to
guarantee the Company's obligations under the Credit Agreement and to grant
security interests in substantially all of their assets to secure such
guarantees;
WHEREAS, in connection with the guarantees and grants of security
interests by the Guarantors pursuant to the Credit Agreement, Section 4.15 of
the Indenture requires the Guarantors to guarantee the Securities on terms at
least as favorable to the Holders of the Securities as the Indenture Guarantee;
and
WHEREAS, the Company, the Guarantors, and the Trustee are entering
into this Supplemental Indenture to provide for such Guarantee by the
Guarantors;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Indenture.
ARTICLE II
GUARANTEE
For value received, each Guarantor hereby unconditionally guarantees to
the Holders of the Securities the due and punctual payment, subject to the
subordination provisions set forth in Article III, of the principal of, premium,
if any, and interest on the Securities when and as the same shall become due and
payable according to the terms of the Securities and the Indenture. The
obligations of each Guarantor under this Article II are hereinafter collectively
called the "Guarantee."
---------
ARTICLE III
SUBORDINATION; WAIVER OF SUBROGATION
Section 3.1 Guarantee Subordinated to Senior Indebtedness.
Each Guarantor, for itself and its successors, and each Holder, by his
acceptance of the benefits of the Guarantee, agrees that the guarantee of the
payment of principal of and interest on the Securities provided by the Guarantee
is subordinated in right of payment, to the extent and in the manner provided in
this Article Three, to the prior payment in full, in cash, cash equivalents
acceptable to the holders of such Senior Indebtedness or in any other form
acceptable to the holders of such Senior Indebtedness, of all Senior
Indebtedness and that these subordination provisions are for the benefit of the
holders of Senior Indebtedness.
This Article Three shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
Section 3.2 No Payment on Guarantee in Certain Circumstances.
(a) No direct or indirect payments or distributions by or on
behalf of any Guarantor on or with respect to the Guarantee (other than any such
payment or
2
<PAGE>
distribution (a "Reorganization Distribution") authorized by an order or decree
of a court of competent jurisdiction in a reorganization proceeding under any
Bankruptcy Law) shall be made if, at the time of such payment or distribution,
there exists a default (a "Payment Default") in payment of all or any portion of
any Senior Indebtedness (other than a payment default to the extent it relates
solely to penalties, fees, premiums, expense reimbursements, indemnity
obligations and other monetary obligations other than the payment of principal
or interest), and such Payment Default shall not have been cured or waived or
the benefits of this Section 3.2(a) waived in writing by or on behalf of the
holders of such Senior Indebtedness.
(b) During the continuance of any event of default with respect
to Specified Senior Debt that would permit the acceleration of the maturity of
such Specified Senior Debt, other than a Payment Default, no direct or indirect
payments or distributions (other than a Reorganization Distribution) by or on
behalf of any Guarantor on or with respect to the Guarantee may be made for a
period (the "Payment Blockage Period") commencing on the date of receipt by the
Trustee of notice of such event of default under any Specified Senior Debt from
an agent for the lenders under the Bank Credit Facility (the "Bank Agent") or
the trustee or other similar representative for the holders of other Specified
Senior Debt (or the holders of at least 25% of the principal amount of such
other Specified Senior Debt), or, if such event of default results from the
acceleration of the Securities, on the earlier of the date of receipt of such
notice by the Trustee or the date of such acceleration, and ending on the
earliest of (a) the 179th day thereafter, (b) the date on or as of which (1)
such event of default has been cured or waived, (2) the Company has delivered to
the Trustee an Officers' Certificate to such effect and (3) the Bank Agent or
the trustee or other similar representative for the holders of other Specified
Senior Debt (as applicable) shall have endorsed on such Officers' Certificate
that it does not object to the form or substance of such Officers' Certificate,
and (c) the date on or as of which the Bank Agent or the trustee or other
similar representative for the holders of other Specified Senior Debt (as
applicable) shall have consented in writing to the termination of such Payment
Blockage Period. Upon the termination of any Payment Blockage Period, each
Guarantor may promptly resume making any and all required payments in respect of
the Guarantee including any payments that were previously not made pursuant to
the foregoing payment blockage provisions. Not more than one Payment Blockage
Period may be commenced during any period of 360 consecutive days by or on
behalf of Specified Senior Debt other than Bank Senior Indebtedness.
Notwithstanding the foregoing, in no event may the total number of days during
which any period of 360 consecutive days exceed 179 days (whether or not
consecutive). No event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period shall be, or be made, the basis
for the commencement of a second Payment Blockage Period by the Bank Agent or
the trustee, representative or holders of such Specified Senior Debt, whether or
not within a period of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
3
<PAGE>
(c) In the event that, notwithstanding the foregoing provisions
of this Section 3.2, any payment or distribution of assets of any Guarantor,
whether in cash, property or securities (other than a Reorganization
Distribution), shall be received by the Trustee or the Holders on account of
such Guarantor's liability under the Guarantee before all Senior Indebtedness is
paid in full or such payment duly is provided for, such payment or distribution
(subject to the provisions of Section 3.6 and 3.7) shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such holders, as the case may be, to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full of
all Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness, but only to the extent
that as to any holder of such Senior Indebtedness, as promptly as practical
following notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payments has been received by the Trustee or Holder(s), such
holder (or a representative thereof) notifies the Trustee of the amounts then
due and owing on the Senior Indebtedness, if any, held by such holder and only
the amounts specified in such notices to the Trustee shall be paid to the
holders of Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
Section 3.3 Guarantee Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Guarantors.
In the event of any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or its assets, or
any liquidation, dissolution or other winding up of any Guarantor, whether
voluntary or involuntary, or any assignment for the benefit of creditors or
other marshaling of assets or liabilities of any Guarantor:
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full, cash equivalents acceptable to the holders
of such Senior Indebtedness or in any other form acceptable to the holders of
such Senior Indebtedness (or to have such payment duly provided for in cash or
as acceptable to the holders of such Senior Indebtedness), of the principal of
and interest payment in respect thereof, before the Holders are entitled to
receive any payment (excluding a Reorganization Distribution) on account of the
principal of and interest on the Securities;
4
<PAGE>
(b) any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Three, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution, directly to the
holders of Senior Indebtedness, ratably according to the respective amounts of
Senior Indebtedness held by each, to the extent necessary to make payment in
full (or have such payment duly provided for) of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of any Guarantor, whether in cash, property or
securities, shall be received by the Trustee or the Holders on account of
principal of or interest on the Securities before all Senior Indebtedness is
paid in full or such payment is duly provided for, such payment or distribution
(subject to the provisions of Sections 3.6 and 3.7) shall be held in trust by
the Trustee or such Holders for the benefit of the holders of the Senior
Indebtedness, or their respective representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full (except as such payment otherwise shall
have been provided for) of all Senior Indebtedness remaining unpaid after giving
effect to all concurrent payments and distributions and all provisions therefor
to the holders of such Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of Senior Indebtedness that such
prohibited payment has been received by the Trustee or Holder(s), such holder
(or a representative therefor) notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders of
Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of such Guarantor or
assignment for the benefit of creditors by such Guarantor.
Section 3.4 Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash,
cash equivalents acceptable to the holders of such Senior Indebtedness or in any
other form acceptable to the holders of such Senior Indebtedness (or to have
such payment duly provided for in cash or as acceptable to the holders of such
Senior Indebtedness), the Holders of Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of each Guarantor applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders of
Senior Indebtedness by or on behalf of any Guarantor, or by or on behalf of the
Holders by virtue of this Article Three, which otherwise would have been made to
the Holders shall, as between such Guarantor and the Holders, be deemed to be
payment by
5
<PAGE>
such Guarantor to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article Three are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Three shall have been
applied, pursuant to the provisions of this Article Three, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled to
receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash, cash equivalents acceptable to the holders of such
Senior Indebtedness or in any other form acceptable to the holders of such
Senior Indebtedness.
Section 3.5 Obligations of Guarantors Unconditional.
Nothing contained in this Article Three or elsewhere in this
Supplemental Indenture is intended to or shall impair, as between the Guarantors
and the Holders, the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities in accordance with the terms of the Guarantee, or is intended to or
shall affect the relative rights of the Holders and creditors of such Guarantor
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under the Guarantee, subject to the
rights, if any under this Article Three, of the holders of Senior Indebtedness
in respect of cash, property or securities of such Guarantor received upon the
exercise of any such remedy. Notwithstanding anything to the contrary in this
Article Three or in the Guarantee, upon any distribution of assets of the
Company referred to in this Article Three, the Trustee, subject to the
provisions of Section 7.1 and 7.2 of the Indenture, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of any Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Three. Nothing in this Section 3.5 shall apply to the claims of,
or payments to, the Trustee under or pursuant to Section 7.7 of the Indenture.
Section 3.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the
6
<PAGE>
Trustee unless and until a Trust Officer of the Trustee shall have received, no
later than three Business Days prior to such payment, written notice thereof
from the Company or from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 7.1 and 7.2 of the Indenture,
shall be entitled in all respects conclusively to assume that no such fact
exists.
Section 3.7 Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 8.4 of the Indenture
shall be for the sole benefit of Securityholders and, to the extent (i) the
making of such deposit by any Guarantor shall not have been in contravention of
any term or provision of any agreement creating or evidencing Senior
Indebtedness and (ii) allocated for the payment of Securities, shall not be
subject to the subordination provisions of this Article Three. Otherwise, any
deposit of assets by any Guarantor with the Trustee or any Paying Agent (whether
or not in trust) for the payment of principal of or interest on any Securities
shall be subject to the provisions of Sections 3.1, 3.2, 3.3 and 3.4; provided,
that, if prior to the second Business Day preceding the date on which by the
terms of the Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of or interest on
any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 3.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
Section 3.8 Subordination Rights Not Impaired by Acts or Omissions of
Guarantors or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article Three shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by any Guarantor with the terms of the
Guarantee, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may extend, renew,
restate, supplement, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with any Guarantor all without affecting the liabilities and obligations
of the parties to this Supplemental Indenture or the Holders.
Section 3.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
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<PAGE>
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action in accordance
with the terms of this Supplemental Indenture as may be necessary or appropriate
to effectuate the subordination provisions contained in this Article Three and
to protect the rights of the Holders pursuant to this Supplemental Indenture,
and appoints the Trustee his attorney-in-fact for such purpose, including, in
the event of any dissolution, winding up, liquidation or reorganization of any
Guarantor (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of such Guarantor) tending towards liquidation of the business
and assets of such Guarantor, the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Securities. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Indebtedness
or their representative to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 3.10 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Three in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Supplemental Indenture shall be construed to deprive the Trustee of any of its
rights as such bolder.
Section 3.11 Article Three Not to Prevent Events of Default
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Three shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 6.1 of the Indenture or in any way preventing the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
Section 3.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or any Guarantor
or any other person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by
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<PAGE>
virtue of this Article Three or otherwise. Nothing in this Section 3.12 shall
affect the obligation of any other such person to hold such payment for the
benefit of, and to pay such payment over to, the holders of Senior Indebtedness
or their representative.
Section 3.13 Waiver of Subrogation.
Each Guarantor hereby waives and agrees that it will not in any manner
whatsoever claim or take the benefit or advantage of any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary of the Company as a result of any payment by such
Subsidiary under the Guarantee.
ARTICLE IV
RELEASE OF GUARANTEE
Notwithstanding any other provision of this Supplemental Indenture,
the Guarantee of each Guarantor provided for herein shall be automatically and
unconditionally released and discharged upon the occurrence of either of the
events described in clauses (i) or (ii) of Section 4.15(c) of the Indenture.
ARTICLE V
MISCELLANEOUS
Section 5.1 Ratification of Indenture.
This Supplemental Indenture shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference herein and, as supplemented, modified and restated
hereby, is ratified, approved and confirmed.
Section 5.2 Governing Law.
This Supplemental Indenture shall be governed and construed in
accordance with the laws of the State of New York.
Section 5.3 Counterparts.
This Supplemental Indenture may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Supplemental Indenture.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
Indenture to be duly executed as of the date first written above.
Company:
-------
RYKOFF-SEXTON, INC.
By /s/ Richard J. Martin
--------------------------------
Title
-----------------------------
Guarantors:
----------
US FOODSERVICE INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
JOHN SEXTON & CO.
By /s/ Richard J. Martin
--------------------------------
Title
-----------------------------
WS HOLDINGS CORPORATION
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
USFTM, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
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<PAGE>
BRB HOLDINGS, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
WHITE SWAN, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
MOM'S PRODUCE AND FOODS, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
BIGGERS BROTHERS, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
KING'S FOODSERVICE, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
US FOODSERVICE OF ATLANTA, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
11
<PAGE>
ROANOKE RESTAURANT SERVICE, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
F.H. BEVEVINO & COMPANY, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
US FOODSERVICE OF FLORIDA, INC.
By /s/ David F. McAnally
--------------------------------
Title
-----------------------------
DUKE ASSOCIATES
By: RYKOFF-SEXTON, INC.
Its: General Partner
By /s/ Richard J. Martin
--------------------------------
Title
-----------------------------
By: JOHN SEXTON & CO.
Its: General Partner
By /s/ Richard J. Martin
--------------------------------
Title
-----------------------------
Trustee:
-------
NORWEST BANK MINNESOTA, N.A., as Trustee
By /s/ Curtis Schwegman
--------------------------------
Title Corporate Trust Officer
-----------------------------
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EXHIBIT 4.1.3
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE dated as of December 23, 1997 (this
"Supplemental Indenture") is among RYKOFF-SEXTON, INC., a Delaware corporation
----------------------
and formerly known as Hudson Acquisition Corp. (the "Company"), the guarantors
-------
listed on the signature pages hereof (individually a "Guarantor" and
---------
collectively the "Guarantors") and NORWEST BANK MINNESOTA, N.A., as trustee
----------
under the Indenture referred to below (in such capacity, the "Trustee").
-------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trustee and Rykoff-Sexton, Inc., a Delaware corporation
and the Company's predecessor in interest (the "Predecessor"), are parties to
-----------
the Indenture dated as of November 1, 1993 (as supplemented, the "Indenture"),
---------
pursuant to which the Predecessor issued its 8 7/8% Senior Subordinated Notes
due 2003 (the "Securities");
----------
WHEREAS, in connection with the Agreement and Plan of Merger dated as
of June 30, 1997, as amended, among the Predecessor, JP Foodservice, Inc., a
Delaware corporation, and the Company, the Predecessor merged with and into the
Company, with the Company being the surviving entity of such merger;
WHEREAS, Section 5.1(a)(1) of the Indenture requires the Company, as
the surviving entity of the merger with the Predecessor, to assume all
obligations of the Predecessor under the Securities and the Indenture;
WHEREAS, the terms of the Five Year Credit Agreement and the 364-Day
Credit Agreement, each dated as of December 23, 1997 (collectively, the "Credit
------
Agreements"), each among the Company and JP Foodservice Distributors, Inc., a
- ----------
Delaware corporation ("JPFDI"), as borrowers, the lenders party thereto, as
-----
lenders, NationsBank, N.A., as administrative agent for the lenders, NationsBanc
Montgomery Securities, Inc. and Chase Securities, Inc., each as co-managers, The
Chase Manhattan Bank, as syndication agent, and Bank of America, NT & SA, as
documentation agent, require the Guarantors to guarantee the Company's and
JPFDI's obligations under the Credit Agreements;
WHEREAS, in connection with the guarantees by the Guarantors pursuant
to the Credit Agreements, Section 4.15 of the Indenture requires the Guarantors
to guarantee the Securities on terms at least as favorable to the Holders of the
Securities as the Indenture Guarantee; and
<PAGE>
WHEREAS, the Company, the Guarantors and the Trustee are entering into
this Supplemental Indenture to provide for such Guarantee by the Guarantors;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Indenture.
ARTICLE II
ASSUMPTION
For value received, the Company hereby unconditionally assumes all of
the Predecessor's duties, liabilities and obligations under the Securities and
the Indenture.
ARTICLE III
GUARANTEE
For value received, each Guarantor hereby unconditionally guarantees
to the Holders of the Securities the due and punctual payment, subject to the
subordination provisions set forth in Article IV, of the principal of, premium,
if any, and interest on the Securities when and as the same shall become due and
payable according to the terms of the Securities and the Indenture. The
obligations of each Guarantor under this Article III are hereinafter
collectively called the "Guarantee."
---------
ARTICLE IV
SUBORDINATION; WAIVER OF SUBROGATION
Section 4.1 Guarantee Subordinated to Senior Indebtedness.
Each Guarantor, for itself and its successors, and each Holder, by his
acceptance of the benefits of the Guarantee, agrees that the guarantee of the
payment of principal of and interest on the Securities provided by the Guarantee
is subordinated in right of payment, to the extent and in the manner provided in
this Article IV, to the prior payment in full, in cash, cash equivalents
acceptable to the holders of such Senior Indebtedness or in any
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<PAGE>
other form acceptable to the holders of such Senior Indebtedness, of all Senior
Indebtedness and that these subordination provisions are for the benefit of the
holders of Senior Indebtedness.
This Article IV shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
Section 4.2 No Payment on Guarantee in Certain Circumstances.
(a) No direct or indirect payments or distributions by or on
behalf of any Guarantor on or with respect to the Guarantee (other than any such
payment or distribution (a "Reorganization Distribution") authorized by an order
---------------------------
or decree of a court of competent jurisdiction in a reorganization proceeding
under any Bankruptcy Law) shall be made if, at the time of such payment or
distribution, there exists a default (a "Payment Default") in payment of all or
---------------
any portion of any Senior Indebtedness (other than a payment default to the
extent it relates solely to penalties, fees, premiums, expense reimbursements,
indemnity obligations and other monetary obligations other than the payment of
principal or interest), and such Payment Default shall not have been cured or
waived or the benefits of this Section 4.2(a) waived in writing by or on behalf
of the holders of such Senior Indebtedness.
(b) During the continuance of any event of default with
respect to Specified Senior Debt that would permit the acceleration of the
maturity of such Specified Senior Debt, other than a Payment Default, no direct
or indirect payments or distributions (other than a Reorganization Distribution)
by or on behalf of any Guarantor on or with respect to the Guarantee may be made
for a period (the "Payment Blockage Period") commencing on the date of receipt
-----------------------
by the Trustee of notice of such event of default under any Specified Senior
Debt from an agent for the lenders under the Bank Credit Facility (the "Bank
----
Agent") or the trustee or other similar representative for the holders of other
- -----
Specified Senior Debt (or the holders of at least 25% of the principal amount of
such other Specified Senior Debt), or, if such event of default results from the
acceleration of the Securities, on the earlier of the date of receipt of such
notice by the Trustee or the date of such acceleration, and ending on the
earliest of (a) the 179th day thereafter, (b) the date on or as of which (1)
such event of default has been cured or waived, (2) the Company has delivered to
the Trustee an Officers' Certificate to such effect and (3) the Bank Agent or
the trustee or other similar representative for the holders of other Specified
Senior Debt (as applicable) shall have endorsed on such Officers' Certificate
that it does not object to the form or substance of such Officers' Certificate,
and (c) the date on or as of which the Bank Agent or the trustee or other
similar representative for the holders of other Specified Senior Debt (as
applicable) shall have consented in writing to the termination of such Payment
Blockage Period. Upon the termination of any Payment Blockage Period, each
Guarantor may promptly resume making any and all required payments in respect of
the Guarantee including any payments that were previously not made pursuant to
the foregoing payment blockage provisions. Not more than one Payment Blockage
Period may be commenced during any period of 360 consecutive days
3
<PAGE>
by or on behalf of Specified Senior Debt other than Bank Senior Indebtedness.
Notwithstanding the foregoing, in no event may the total number of days during
which any Payment Blockage Period or Payment Blockage Periods may be in effect
during any period of 360 consecutive days exceed 179 days (whether or not
consecutive). No event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period shall be, or be made, the basis
for the commencement of a second Payment Blockage Period by the Bank Agent or
the trustee, representative or holders of such Specified Senior Debt, whether or
not within a period of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing
provisions of this Section 4.2, any payment or distribution of assets of any
Guarantor, whether in cash, property or securities (other than a Reorganization
Distribution), shall be received by the Trustee or the Holders on account of
such Guarantor's liability under the Guarantee before all Senior Indebtedness is
paid in full or such payment duly is provided for, such payment or distribution
(subject to the provisions of Sections 4.6 and 4.7) shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such holders, as the case may be, to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full of
all Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness, but only to the extent
that as to any holder of such Senior Indebtedness, as promptly as practical
following notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payments has been received by the Trustee or Holder(s), such
holder (or a representative thereof) notifies the Trustee of the amounts then
due and owing on the Senior Indebtedness, if any, held by such holder and only
the amounts specified in such notices to the Trustee shall be paid to the
holders of Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
Section 4.3 Guarantee Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Guarantors.
In the event of any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or its assets, or
any liquidation, dissolution or other
4
<PAGE>
winding up of any Guarantor, whether voluntary or involuntary, or any assignment
for the benefit of creditors or other marshaling of assets or liabilities of any
Guarantor:
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full, in cash, cash equivalents acceptable to
the holders of such Senior Indebtedness or in any other form acceptable to the
holders of such Senior Indebtedness (or to have such payment duly provided for
in cash or as acceptable to the holders of such Senior Indebtedness), of the
principal of and interest payment in respect thereof, before the Holders are
entitled to receive any payment (excluding a Reorganization Distribution) on
account of the principal of and interest on the Securities;
(b) any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article IV, shall be paid by the liquidating trustee or agent
or other person making such a payment or distribution, directly to the holders
of Senior Indebtedness, ratably according to the respective amounts of Senior
Indebtedness held by each, to the extent necessary to make payment in full (or
have such payment duly provided for) of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of any Guarantor, whether in cash, property or
securities, shall be received by the Trustee or the Holders on account of
principal of or interest on the Securities before all Senior Indebtedness is
paid in full or such payment is duly provided for, such payment or distribution
(subject to the provisions of Sections 4.6 and 4.7) shall be held in trust by
the Trustee or such Holders for the benefit of the holders of the Senior
Indebtedness, or their respective representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full (except as such payment otherwise shall
have been provided for) of all Senior Indebtedness remaining unpaid after giving
effect to all concurrent payments and distributions and all provisions therefor
to the holders of such Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of Senior Indebtedness that such
prohibited payment has been received by the Trustee or Holder(s), such holder
(or a representative therefor) notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders of
Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of such Guarantor or
assignment for the benefit of creditors by such Guarantor.
5
<PAGE>
Section 4.4 Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash,
cash equivalents acceptable to the holders of such Senior Indebtedness or in any
other form acceptable to the holders of such Senior Indebtedness (or to have
such payment duly provided for in cash or as acceptable to the holders of such
Senior Indebtedness), the Holders of Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of each Guarantor applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders of
Senior Indebtedness by or on behalf of any Guarantor, or by or on behalf of the
Holders by virtue of this Article IV, which otherwise would have been made to
the Holders shall, as between such Guarantor and the Holders, be deemed to be
payment by such Guarantor to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article IV are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article IV shall have been
applied, pursuant to the provisions of this Article IV, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled to
receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash, cash equivalents acceptable to the holders of such
Senior Indebtedness or in any other form acceptable to the holders of such
Senior Indebtedness.
Section 4.5 Obligations of Guarantors Unconditional.
Nothing contained in this Article IV or elsewhere in this Supplemental
Indenture is intended to or shall impair, as between the Guarantors and the
Holders, the obligation of each Guarantor, which is absolute and unconditional,
to pay to the Holders the principal of and interest on the Securities in
accordance with the terms of the Guarantee, or is intended to or shall affect
the relative rights of the Holders and creditors of such Guarantor other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under the Guarantee, subject to the
rights, if any under this Article IV, of the holders of Senior Indebtedness in
respect of cash, property or securities of such Guarantor received upon the
exercise of any such remedy. Notwithstanding anything to the contrary in this
Article IV or in the Guarantee, upon any distribution of assets of the Company
referred to in this Article IV, the Trustee, subject to the provisions of
Section 7.1 and 7.2 of the Indenture, and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or to the Holders for the purpose of
6
<PAGE>
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other Indebtedness of any Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article IV. Nothing in
this Section 4.5 shall apply to the claims of, or payments to, the Trustee under
or pursuant to Section 7.7 of the Indenture.
Section 4.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee shall have received,
no later than three Business Days prior to such payment, written notice thereof
from the Company or from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 7.1 and 7.2 of the Indenture,
shall be entitled in all respects conclusively to assume that no such fact
exists.
Section 4.7 Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 8.4 of the Indenture
shall be for the sole benefit of Securityholders and, to the extent (i) the
making of such deposit by any Guarantor shall not have been in contravention of
any term or provision of any agreement creating or evidencing Senior
Indebtedness and (ii) allocated for the payment of Securities, shall not be
subject to the subordination provisions of this Article IV. Otherwise, any
deposit of assets by any Guarantor with the Trustee or any Paying Agent (whether
or not in trust) for the payment of principal of or interest on any Securities
shall be subject to the provisions of Sections 4.1, 4.2, 4.3 and 4.4; provided,
that, if prior to the second Business Day preceding the date on which by the
terms of the Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of or interest on
any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 4.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
Section 4.8 Subordination Rights Not Impaired by Acts or Omissions of
Guarantors or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article IV shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by any Guarantor with the terms of the
Guarantee, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may extend,
7
<PAGE>
renew, restate, supplement, modify or amend the terms of the Senior Indebtedness
or any security therefor and release, sell or exchange such security and
otherwise deal freely with any Guarantor all without affecting the liabilities
and obligations of the parties to this Supplemental Indenture or the Holders.
Section 4.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action in accordance
with the terms of this Supplemental Indenture as may be necessary or appropriate
to effectuate the subordination provisions contained in this Article IV and to
protect the rights of the Holders pursuant to this Supplemental Indenture, and
appoints the Trustee his attorney-in-fact for such purpose, including, in the
event of any dissolution, winding up, liquidation or reorganization of any
Guarantor (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of such Guarantor) tending towards liquidation of the business
and assets of such Guarantor, the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Securities. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Indebtedness
or their representative to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 4.10 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article IV in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Supplemental Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
Section 4.11 Article IV Not to Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article IV shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 6.1 of the Indenture or in any way preventing the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
8
<PAGE>
Section 4.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or any Guarantor
or any other person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article IV or otherwise.
Nothing in this Section 3.12 shall affect the obligation of any other such
person to hold such payment for the benefit of, and to pay such payment over to,
the holders of Senior Indebtedness or their representative.
Section 4.13 Waiver of Subrogation.
Each Guarantor hereby waives and agrees that it will not in any manner
whatsoever claim or take the benefit or advantage of any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary of the Company as a result of any payment by such
Subsidiary under the Guarantee.
ARTICLE V
RELEASE OF GUARANTEE
Notwithstanding any other provision of this Supplemental Indenture,
the Guarantee of each Guarantor provided for herein shall be automatically and
unconditionally released and discharged upon the occurrence of either of the
events described in clauses (i) or (ii) of Section 4.15(c) of the Indenture.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Ratification of Indenture.
This Supplemental Indenture shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference herein and, as supplemented, modified and restated
hereby, is ratified, approved and confirmed.
Section 6.2 Governing Law.
This Supplemental Indenture shall be governed and construed in
accordance with the laws of the State of New York.
9
<PAGE>
Section 6.3 Counterparts.
This Supplemental Indenture may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Supplemental Indenture.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
Indenture to be duly executed as of the date first written above.
Company:
-------
RYKOFF-SEXTON, INC. (formerly known as Hudson
Acquisition Corp.)
By /s/ Lewis Hay, III
-----------------------------
Title Senior Vice President
--------------------------
Guarantors:
----------
US FOODSERVICE OF ILLINOIS, INC.
By /s/ Richard J. Martin
-----------------------------
Title
--------------------------
TARGETED SPECIALTY SERVICES, INC.
By /s/ Richard J. Martin
-----------------------------
Title
--------------------------
RYKOFF-SEXTON SERVICES, INC.
By /s/ Richard J. Martin
-----------------------------
Title
--------------------------
FOOD DISTRIBUTION CONCEPTS, INC.
By /s/ Richard J. Martin
-----------------------------
Title
--------------------------
<PAGE>
BEIJING CHEF, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
E & H DISTRIBUTING CO.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
HARRISON'S PRIME MEATS & PROVISIONS, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
JPF REAL ESTATE HOLDINGS, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
ILLINOIS FRUIT & PRODUCE CORP.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
<PAGE>
SKY BROS., INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
MAZO-LERCH COMPANY
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
TRANS-PORTE, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
EL PASADO, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
RITUALS COFFEE COMPANY
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
<PAGE>
ROSELI PRODUCTS CORPORATION
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
SQUERI FOOD SERVICE, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
NEVADA BAKING COMPANY
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
OUTWEST MEAT COMPANY
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
HILLTOP HEARTH BAKERIES, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
<PAGE>
CROSS VALLEY FARMS, INC.
By /s/ Lewis Hay, III
-----------------------------
Title Vice President
--------------------------
Trustee:
-------
NORWEST BANK MINNESOTA, N.A., as Trustee
By /s/ Curtis Schwegman
-----------------------------
Title Corporate
--------------------------
<PAGE>
EXHIBIT 4.2
The issuance and sale of shares upon the exercise of this
Warrant have not been registered under the Securities Act
of 1933, as amended, and accordingly neither this Warrant
nor any such shares may transferred in the absence of such
registration or an exemption therefrom under such Act.
This Warrant and such shares may be transferred only in
compliance with the conditions specified in this Warrant.
JP FOODSERVICE, INC.
Common Stock Purchase Warrant
Expiring September 30, 2005
No. W-1 December 23, 1997
CUSIP No. 466232 11 3
JP FOODSERVICE, INC., a Delaware corporation (herein, together with its
successors and assigns, the "Company"), for value received, hereby certifies
that Teachers Insurance and Annuity Association of America, or registered
assigns, is entitled to purchase from the Company 159,066 duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock, par value
$.01 per share (the "Common Stock") of the Company at the purchase price per
share of $13.18696, at any time or from time to time prior to 5:00 p.m., New
York City time, on September 30, 2005 (or such other date as may be determined
pursuant to section 16), all subject to the terms, conditions and adjustments
set forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants", such term to include all such warrants issued in exchange or
substitution therefor) originally issued by the Company in connection with the
transactions contemplated by the Agreement and Plan of Merger dated as of
June 30, 1997, as amended, among the Company, Hudson Acquisition Corp. and
Rykoff-Sexton, Inc. In connection with such transactions, the Warrants were
issued in replacement of Common Stock Purchase Warrants dated May 17, 1996 of
Rykoff-Sexton, Inc. evidencing the right to purchase an aggregate of 331,761
shares of common stock of Rykoff-Sexton, Inc. The Warrants originally so issued
evidence rights to purchase an aggregate of 229,763 shares of Common Stock
subject to adjustment as provided herein. Certain capitalized terms used in this
Warrant are defined in section 12; references to a "section" are, unless
otherwise specified, to one of the sections of this Warrant.
<PAGE>
1. Exercise of Warrant. 1.1. Manner of Exercise. This Warrant may
------------------- ------------------
be exercised by the holder hereof, in whole or in part, during normal business
hours on any Business Day, by surrender of this Warrant to the Company at its
principal office maintained pursuant to section 11.2(a), accompanied by (i) a
subscription in substantially the form attached to this Warrant (or a reasonable
facsimile thereof) duly executed by such holder, (ii) payment, in cash or by
certified or official bank check payable to the order of the Company in the
amount obtained by multiplying (a) the number of shares of Common Stock (without
giving effect to any adjustment thereof) designated in such subscription by
(b) $13.18696, whereupon such holder shall be entitled to receive the number of
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities determined as provided in sections 2 through 4) and
(iii) the written representation by such holder that: (a) such holder is
acquiring the Common Stock being acquired by it pursuant to the exercise of this
Warrant for its own account for investment and not with a view to the
distribution of such Common Stock in violation of the Securities Act; and
(b) (A) if such holder is an insurance company, such holder is not acquiring the
Common Stock or any interest therein with assets allocated to any separate
account maintained by such holder in which any employee benefit plan (or its
related trust) has any interest or (B) if such holder is a bank, no part of the
funds used to acquire the Common Stock will be drawn from any trust fund or
other account held by such holder in which any employee benefit plan has any
interest. As used in this section, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned thereto in
Section 3 of the Employee Retirement Income Security Act of 1974, as amended.
1.2. When Exercise Effective. Each exercise of this Warrant shall
-----------------------
be deemed to have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered to the
Company as provided in section 1.1, and at such time the Person or Persons in
whose name or names any certificate or certificates for shares of Common Stock
(or Other Securities) shall be issuable upon such exercise as provided in
section 1.3 shall be deemed to have become the holder or holders or record
thereof.
1.3. Delivery of Stock Certificates, etc. As soon as practicable
-----------------------------------
after the exercise of this Warrant, in whole or in part, and in any event within
ten Business Days thereafter, the Company at its expense (including the payment
by it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the holder hereof or, subject to section 8, as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, (a) a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock (or Other Securities) to
which such holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which such holder would otherwise be entitled, cash in an
amount equal to the same fraction of the Market Price per share on the Business
Day next preceding the date of such exercise and
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<PAGE>
(b) in case such exercise is in part only, a new Warrant or Warrants of like
tenor, calling in the aggregate on the face or faces thereof for issuance of the
number of shares of Common Stock equal (without giving effect to any adjustment
therein) to the number of such shares called for on the face of this Warrant
minus the number of such shares so designated by such holder upon such exercise
as provided in section 1.1.
2. Adjustment of Common Stock Issuable Upon Exercise. 2.1.
-------------------------------------------------
General; Warrant Price. The number of shares of Common Stock which the holder of
- ----------------------
this Warrant shall be entitled to receive upon each exercise hereof shall be
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this section 2) be issuable upon such
exercise, as designated by the holder hereof pursuant to section 1.1, by a
fraction of which (a) the numerator is $13.18696 and (b) the denominator is the
Warrant Price in effect on the date of such exercise. The "Warrant Price" shall
initially be $13.18696 per share, shall be adjusted and readjusted from time to
time as provided in this section 2 and, as so adjusted or readjusted, shall
remain in effect until a further adjustment or readjustment thereof is required
by this section 2.
2.2. Adjustment of Warrant Price; Issuance of Additional Shares of
-------------------------------------------------------------
Common Stock and Dividends. (a) In case the Company at any time or from time to
- --------------------------
time after the date hereof shall issue or sell Additional Shares of Common Stock
(including Additional Shares of Common Stock deemed to be issued pursuant to
section 2.3 or 2.4) without consideration or for a consideration per share less
than the Current Market Price, then, and in each such case, subject to section
2.7, such Warrant Price shall be reduced, concurrently with such issue or sale,
to a price (calculated to the nearest .001 of a cent) determined by multiplying
such Warrant Price by a fraction.
(i) the numerator of which shall be (A) the number of shares of
Common Stock outstanding immediately prior to such issue or sale plus
(B) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of such
Additional Shares of Common Stock so issued or sold would purchase at
the Current Market Price per share, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such issue or sale,
provided that, for the purposes of this section 2.2, (x) immediately after any
- --------
Additional Shares of Common Stock are deemed to have been issued pursuant to
section 2.3 or 2.4, such Additional Shares of Common Stock shall be deemed to be
outstanding, and (y) treasury shares shall not be deemed to be outstanding and
the disposition of any thereof by the Company shall be considered an issuance or
sale of Additional Shares of Common Stock for purposes of this section 2.
3
<PAGE>
(b) Extraordinary Dividends and Other Distributions. In case the
-----------------------------------------------
Company at any time or from time to time after the date hereof shall declare,
order, pay or set apart any sum or property for or make a dividend or other
distribution (including, without limitation, any distribution of other or
additional stock or other securities or property or Options by way of dividend
or spinoff, reclassification, recapitalization or similar corporate
rearrangement) on the Common Stock, other than any regular periodic dividend,
payable in cash out of earned surplus or net profits for the year in which the
dividend is incurred or the previous year, and other than a dividend payable in
Additional Shares of Common Stock (in which case the provisions of section 2.4
shall apply), then, and in each such case, subject to section 2.7, at the
irrevocable option of the Company made at the time of the notice referred to in
section 6(a), either
(A) the Warrant Price in effect immediately prior to the close
of business on the record date fixed for the determination
of holders of any class of securities entitled to receive
such dividend or distribution shall be reduced, effective
as of the close of business on such record date, to a price
(calculated to the nearest .001 of a cent) determined by
multiplying such Warrant Price by a fraction:
(x) the numerator of which shall be the Current Market
Price in effect on such record date or, if the Common
Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading,
less the amount of such dividend or distribution (as
determined in good faith in accordance with section
2.5 by a resolution of the Board of Directors of the
Company) applicable to one share of Common Stock, and
(y) the denominator of which shall be such Current Market
Price in effect on such record date or, if the Common
Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading; or
(B) the Company shall pay over to each holder of Warrants,
immediately upon exercise thereof by such holder on or
after the payment date for such dividend or distribution,
the securities and other property (including cash) which
such holder would have received (together with all
distributions thereon) if such holder had exercised,
immediately prior to the record date fixed in connection
4
<PAGE>
with such dividend, the Warrants held by it, and the
Company shall take whatever steps are necessary or
appropriate to keep in reserve at all times such securities
and other property (including cash) as shall be required to
fulfill its obligations hereunder in respect of the shares
issuable upon the exercise of all the Warrants.
2.3. Treatment of Options and Convertible Securities. In case the
-----------------------------------------------
Company at any time or from time to time after the date hereof shall issue,
sell, grant or assume, or shall fix a record date for the determination of
holders of any class of securities entitled to receive, any Options or
Convertible Securities, then, and in each such case, the maximum number of
Additional Shares of Common Stock (as set forth in the instrument relating
thereto, without regard to any provisions contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or, in the
case of Convertible Securities and Options therefor, the conversion or exchange
of such Convertible Securities shall be deemed to be Additional Shares of Common
Stock issued as of the time of such issue, sale, grant or assumption or, in case
such a record date shall have been fixed, as of the close of business on such
record date (or, if the Common Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading), provided that such Additional
--------
Shares of Common Stock shall not be deemed to have been issued unless the
consideration per share (determined pursuant to section 2.5) of such shares
would be less than the Current Market Price on the date of and immediately prior
to such issue, sale, grant, or assumption or immediately prior to the close of
business on such record date (or, if the Common Stock trades on an ex-dividend
basis, on the date prior to the commencement of ex-dividend trading), as the
case may be, and provided, further, that in any such case in which Additional
-------- -------
Shares of Common Stock are deemed to be issued,
(a) no further adjustment of the Warrant Price shall be made upon the
subsequent issue or sale of shares of Common Stock upon the exercise of
such Options or the conversion or exchange of such Convertible Securities;
(b) if such Options or Convertible Securities by their terms provide,
with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of
Additional Shares of Common Stock issuable, upon the exercise, conversion
or exchange thereof (by change of rate or otherwise), the Warrant Price
computed upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date, or date prior to the commencement
of ex-dividend trading, as the case may be, with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or
decrease insofar as it affects such Options, or the rights of conversion or
exchange under such Convertible Securities, which are outstanding at such
time;
5
<PAGE>
(c) upon the expiration (or purchase by the Company and cancellation
or retirement) of any such Options which shall not have been exercised or
the expiration of any rights of conversion or exchange under any such
Convertible Securities which (or purchase by the Company and any
cancellation or retirement of any such Convertible Security the rights of
conversion or exchange under which) shall not have been exercised, the
Warrant Price computed upon the original issue, sale, grant or assumption
thereof (or upon the occurrence of the record date, or date prior to the
commencement of ex-dividend trading, as the case may be, with respect
thereto), and any subsequent adjustments based thereon, shall, upon such
expiration (or such cancellation or retirement, as the case may be), be
recomputed as if (i) in the case of such Convertible Securities or Options
for Common Stock, the only Additional Shares of Common Stock issued or sold
were the Additional Shares of Common Stock, if any, actually issued or sold
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor was the
consideration actually received by the Company for the issue, sale, grant
or assumption of all such Options, whether or not exercised, plus the
consideration actually received by the Company upon such exercise, or for
the issuance or sale of all such Convertible Securities which were actually
converted or exchanged, plus the additional consideration, if any, actually
received by the Company upon such conversion or exchange; and (ii) in the
case of such Options for Convertible Securities, only the Convertible
Securities, if any, actually issued or sold upon the exercise thereof were
issued at the time of the issuance, sale, grant or assumption of such
Options, and the consideration received by the Company for the Additional
Shares of Common Stock deemed to have then been issued was the
consideration actually received by the Company for the issuance, sale,
grant or assumption of all such Options, whether or not exercised, plus the
consideration deemed to have been received by the Company (pursuant to
section 2.5) upon the issuance or sale of the Convertible Securities with
respect to which such Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c) above shall
have the effect of increasing the Warrant Price by an amount in excess of
the amount of the adjustment thereof originally made in respect of the
issue, sale, grant or assumption of such Options or Convertible Securities;
provided, however, that this provision shall take into account intervening
-------- -------
adjustments made to the Warrant Price pursuant to other provisions of
section 2; and
(e) in the case of any such Options which expire by their terms not
more than 45 days after the date of issue, sale, grant or assumption
thereof, no adjustment of the Warrant Price shall be made until the
expiration or
6
<PAGE>
exercise of all such Options, whereupon such adjustment shall be made in
the manner provided in subdivision (c) above.
2.4. Treatment of Stock Dividends, Stock Splits, etc. In case the
-----------------------------------------------
Company at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective.
2.5. Computation of Consideration. For the purposes of this
-----------------------------
section 2,
(a) the consideration for the issuance or sale of any Additional
Shares of Common Stock shall, irrespective of the accounting treatment of
such consideration:
(i) insofar as it consists of cash, be computed at the net
amount of cash received by the Company,
(ii) insofar as it consists of property (including securities)
other than cash, be computed at the fair market value thereof at the
time of such issuance or sale, as determined in good faith by a
resolution of the Board of Directors of the Company, and
(iii) in case Additional Shares of Common Stock are issued or
sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be the portion of such
consideration so received, computed as provided in clauses (i) and (ii)
above, allocable to such Additional Shares of Common Stock, all as
determined in good faith by a resolution of the Board of Directors of
the Company;
(b) Additional Shares of Common Stock deemed to have been issued
pursuant to section 2.3, relating to Options and Convertible Securities,
shall be deemed to have been issued for a consideration per share
determined by dividing
(i) the total amount, if any, received and receivable by the
Company as consideration for the issue, sale, grant or assumption of
7
<PAGE>
the Options or Convertible Securities in question, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration to protect
against dilution) payable to the Company upon the exercise in full of
such Options or the conversion or exchange of such Convertible
Securities or, in the case of Options for Convertible Securities, the
exercise of such Options for Convertible Securities and the conversion
or exchange of such Convertible Securities, in each case computing such
consideration as provided in the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock (as set forth
in the instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such number to protect
against dilution) issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Securities; and
(c) Additional Shares of Common Stock deemed to have been issued
pursuant to section 2.4, relating to stock dividends, stock splits, etc.,
shall be deemed to have been issued for no consideration.
2.6. Adjustments for Combinations, etc. In case the outstanding
---------------------------------
shares of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.7. Minimum Adjustment of Warrant Price. If the amount of any
-----------------------------------
adjustment of the Warrant Price required pursuant to this section 2 would be
less than one percent (1%) of the Warrant Price in effect at the time such
adjustment is otherwise so required to be made, such amount shall be carried
forward and adjustment with respect thereto made at the time of and together
with any subsequent adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate at least one percent (1%)
of such Warrant Price; provided, however, that upon the exercise of any Warrant,
-------- -------
all necessary adjustments (calculated to the nearest .001 of a cent) not
theretofore made to the Warrant Price relating thereto by reason of the initial
clause of this sentence, up to and including the date of such exercise, shall be
made.
3. Consideration, Merger, etc. 3.1. Adjustments for Consolidation,
-------------------------- ------------------------------
Merger, Sale of Assets, Reorganization, etc. In case the Company after the date
- -------------------------------------------
8
<PAGE>
hereof (a) shall consolidate with or merge into any other Person and shall not
be the continuing or surviving corporation of such consolidation or merger, or
(b) shall permit any other Person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving Person but, in connection
with such consolidation or merger, the Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (c) shall sell, lease or transfer or otherwise dispose of all or
substantially all of its properties or assets to any other Person and thereafter
shall be dissolved, or (d) shall effect a capital reorganization or
reclassification (other than a reclassification described in Section 2.4 or 2.6)
of the Common Stock then, and in the case of each such transaction, proper
provision shall be made so that, upon the basis and the terms and in the manner
provided in this Warrant, the holder of this Warrant, upon the exercise hereof
at any time after the consummation of such transaction, shall be entitled to
receive (at the aggregate Warrant Price in effect at the time of such
consummation for all Common Stock issuable upon such exercise immediately prior
to such consummation), in lieu of the Common Stock issuable upon such exercise
prior to such consummation, the stock and other securities, cash and property to
which such holder would have been entitled upon such consummation if such holder
had exercised the rights represented by this Warrant immediately prior thereto,
subject to adjustments (subsequent to such corporate action) as nearly
equivalent as possible to the adjustments provided for in section 2 and this
section 3.
3.2. Assumption of Obligations. Notwithstanding anything contained in
-------------------------
the Warrants to the contrary, the Company will not effect any of the
transactions described in clauses (a) through (d) of section 3.1 unless, prior
to the consummation thereof, each Person (other than the Company) which may be
required to deliver any stock, securities, cash or property upon the exercise of
this Warrant as provided herein shall assume, by written instrument delivered
to, and reasonably satisfactory to, the holders of at least a majority of the
shares of Common Stock issuable upon exercise of all the then outstanding
Warrants, (a) the obligations of the Company under this Warrant (and if the
Company shall survive the consummation of such transaction, such assumption
shall be in addition to, and shall not release the Company from, any continuing
obligations of the Company under this Warrant), and (b) the obligation to
deliver to such holder such shares of stock, securities, cash or property as, in
accordance with the foregoing provisions of this section 3, such holder may be
entitled to receive, and such Person shall have similarly delivered to such
holder an opinion of counsel for such Person, which counsel shall be reasonably
satisfactory to the holders of at least a majority of the shares of Common Stock
issuable upon exercise of all the then outstanding Warrants, stating that this
Warrant shall thereafter continue in full force and effect and the terms hereof
(including, without limitation, all of the provisions of this section 3) shall
be applicable to the stock, securities, cash or property which such Person may
be required to deliver upon any exercise of this Warrant or the exercise of any
rights pursuant hereto.
9
<PAGE>
3.3. Other Dilutive Events. In case any event shall occur as to which
---------------------
the provisions of section 2 or section 3 are not strictly applicable but the
failure to make any adjustment would not, in the reasonable opinion of the
holders of a majority of the shares of Common Stock issuable upon exercise of
the Warrants or the Company, fairly protect the purchase rights represented by
any Warrant in accordance with the essential intent and principles of such
sections, then, in each such case, upon the written request of the holders of a
majority of the shares of Common Stock issuable upon exercise of the Warrants,
the Company shall, at its cost and expense, appoint a firm of independent
certified public accountants of national standing (which may be the regular
auditors of the Company), which shall give their opinion upon the adjustment, if
any, on a basis consistent with the essential intent and principles established
in sections 2 and 3, necessary to preserve, without dilution, the purchase
rights represented by such Warrant. Upon receipt of such opinion, the Company
will promptly mail a copy thereof to each holder of Warrants and upon the
request of the holders of a majority of the shares of Common Stock issuable upon
exercise of the Warrants, shall make the adjustments described therein.
4. Prohibited Actions. The Company will not, by amendment of its
------------------
certificate or articles of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issuance or sale of securities
or any other voluntary action, avoid the observance or performance of any of the
terms of this Warrant. Without limiting the generality of the foregoing, the
Company (a) will not permit the par value of any shares of Common Stock
receivable upon the exercise of this Warrant to exceed the amount payable
therefor upon such exercise, (b) will take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of Common Stock on the exercise of the Warrants
from time to time outstanding and (c) will not take any action which results in
any adjustment of the Warrant Price if the total number of shares of Common
Stock (or Other Securities) issuable after the action upon the exercise of all
of the Warrants would exceed the total number of shares of Common Stock (or
Other Securities) then authorized by the Company's certificate or articles of
incorporation and available for the purpose of issue upon such exercise.
5. Report as to Adjustments. In each case of any adjustment or
------------------------
readjustment in the shares of Common Stock (or Other Securities) issuable upon
the exercise of this Warrant, the Company will promptly compute such adjustment
or readjustment in accordance with the terms of this Warrant and prepare a
report setting forth such adjustment or readjustment and showing in reasonable
detail the method of calculation thereof and the facts upon which such
adjustment or readjustment is based, including a statement of (a) the number of
shares of Common Stock outstanding or deemed to be outstanding, (b) the Warrant
Price in effect immediately prior to such adjustment and as adjusted and
readjusted (if
10
<PAGE>
required by section 2) on account thereof, and (c) the consideration received or
to be received by the Company for any Additional Shares of Common Stock issued
or sold or deemed to have been issued. The Company will mail, within 30 days of
such event requiring such adjustment, a copy of each such report to each holder
of a Warrant and will, upon the written request at any time of any holder of a
Warrant, furnish to such holder a like report setting forth the Warrant Price at
the time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all such reports and the reports referred to in
the last sentence of this section 5 at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by any holder of a Warrant or its representatives or any prospective purchaser
of a Warrant designated by the holder thereof. In addition to the report
referred to above, the holders of not less than a majority of the Common Stock
issuable upon exercise of the outstanding Warrants may request the Company, at
the Company's cost and expense, to cause independent certified public
accountants of national standing (which may be the regular auditors of the
Company) to verify such computation and will deliver to each holder a report
showing in reasonable detail how such verification was effected.
6. Notices of Corporate Action. In the event of
---------------------------
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof
who are entitled to receive any dividend (other than a regular periodic
dividend, payable in cash out of earned surplus or net profits for the
year in which the dividend is incurred or the previous year) or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right, which notice in the case of a
dividend or distribution of the type described in section 2.2 shall
inform each holder of a Warrant of the Company's option under such
section, or
(b) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger involving the Company and any
other Person or any transfer of all or substantially all the assets of
the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding up of the Company,
the Company will mail to each holder of a Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, and (ii) the date or expected date on which any
such
11
<PAGE>
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding up. Such notice shall be
mailed at least 20 days prior to the date therein specified.
7. Registration of Common Stock. If any shares of Common Stock
----------------------------
required to be reserved for purposes of exercise of this Warrant require
registration with or approval of any governmental authority under any federal or
state law (other than the Securities Act) before such shares may be issued upon
exercise, the Company will, at its expense and as expeditiously as possible, use
its best efforts to cause such shares to be duly registered or approved, as the
case may be. At any such time, but only for so long, as Common Stock is
registered under the Exchange Act and listed on any national securities
exchange, the Company will, at its expense, obtain promptly and maintain the
approval for listing in each such exchange, upon official notice of issuance,
the shares of Common Stock issuable upon exercise of the then outstanding
Warrants and maintain the listing of such shares after their issuance; and the
Company will also list on such national securities exchange, will register under
the Exchange Act and will maintain, for so long as any shares of Common Stock
are listed, such listing of, any Other Securities that at any time are issuable
upon exercise of the Warrants, if and at the time that any securities of the
same class shall be listed on such national securities exchange by the Company.
8. Restrictions on Transfer. 8.1. Restrictive Legends. Except as
------------------------
otherwise permitted by this section 8, each Warrant (including each Warrant
issued upon the transfer of any Warrant) shall be stamped or otherwise imprinted
with a legend in substantially the following form:
"The issuance and sale of shares upon the exercise of this
Warrant have not been registered under the Securities Act of 1933, as
amended, and accordingly neither this Warrant nor any such shares may
be transferred in the absence of such registration or any exemption
therefrom under such Act. This Warrant and such shares may be
transferred only in compliance with the conditions specified in this
Warrant."
Except as otherwise permitted by this section 8, each certificate for
Common Stock (or Other Securities) issued upon the exercise of any Warrant,
and each certificate issued upon the transfer of any such Common Stock (or
Other Securities), shall be stamped or otherwise imprinted with a legend in
substantially the following form:
12
<PAGE>
"The issuance and sale of the securities represented by this
certificate have not been registered under the Securities Act of 1933,
as amended, and such securities may not be transferred except pursuant
to an effective registration statement, or an exemption from
registration, under said Act."
8.2. Notice of Proposed Transfer; Opinions of Counsel. Prior to any
------------------------------------------------
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of such holder's intention to effect
such transfer and to comply in all other respects with this section 8.2. Each
such notice (1) shall describe the manner and circumstances of the proposed
transfer and (2) be accompanied by (a) an opinion of counsel for the holder or,
if agreed to by the Board of Directors of the Company, an opinion of counsel to
the Company, which opinion shall be reasonably satisfactory to the Company or
(b) a no-action letter from the Commission addressed to the Company, such holder
or either of their counsel to the effect that no registration statement is
required because of the availability of an exemption from registration under the
Securities Act.
8.3. Termination of Restrictions. The restrictions imposed by this
---------------------------
section 8 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) when such securities
shall have been effectively registered under the Securities Act or (b) when, in
the opinion of counsel for the holder thereof, which opinion shall be reasonably
satisfactory to the Company, such restrictions are no longer required in order
to insure compliance with the Securities Act. Whenever such restrictions shall
cease and terminate as to any Restricted Securities, the holder thereof shall be
entitled to receive from the Company, without expense (other than applicable
transfer taxes, if any), new securities of like tenor not bearing the applicable
legends required by section 8.1.
8.4. Expenses; Benefits to Certain Transferees. The Company will pay
-----------------------------------------
the reasonable fees, expenses and disbursements of counsel for the holder of
Restricted Securities (other than in-house counsel) and counsel for the Company
in connection with all opinions rendered pursuant to this section 8.
9. Availability of Information. The Company will comply with the
---------------------------
reporting requirements of Section 13 and 15(d) of the Exchange Act and will
comply with all other public information reporting requirements of the
Commission (including Rule 144 promulgated by the Commission under the
Securities Act) from time to time in effect and relating to the availability of
an exemption from the Securities Act for the sale of any Restricted Securities.
The Company will also cooperate with each holder of any Restricted Securities in
supplying such information as may be necessary for such holder to complete and
file any information reporting forms presently or hereafter required by the
Commission as a
13
<PAGE>
condition to the availability of an exemption from the Securities Act for the
sale of any Restricted Securities. The Company will furnish to each holder of
any Warrants, within 15 days upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Company to its stockholders, and copies of all
regular and periodic reports filed by the Company with any securities exchange
or with the Commission. If the Company is not required to file such reports
with the Commission, it shall furnish to each holder of any Warrants, (i) as
soon as practicable after the end of each fiscal year (but not later than 120
days), audited consolidated financial statements of the Company together with
the report of the independent certified public accountant, (ii) as soon as
practicable after the end of each of the first three quarters of each fiscal
year (but not later than 60 days), consolidated financial information and
statements of the Company for such quarter, and (iii) material disclosure items
the Company would be required to disclose pursuant to Form 8-K (or a successor
form) under the Exchange Act, but only when and to the extent the Company
provides such information to any of its lenders or other securityholders or to
any lenders or securityholders of its Affiliates.
10. Reservation of Stock, etc. The Company will at all times reserve
-------------------------
and keep available, solely for issuance and delivery upon exercise of the
Warrants, the number of shares of Common Stock (or Other Securities) from time
to time issuable upon exercise of all Warrants at the time outstanding. All such
securities issuable upon exercise of any Warrants shall be duly authorized and,
when issued upon such exercise, shall be validly issued and, in the case of
shares, fully paid and nonassessable with no liability on the part of the
holders thereof.
11. Ownership, Transfer and Substitution of Warrants. 11.1.
------------------------------------------------
Ownership of Warrants. The Company may treat the person in whose name any
- ---------------------
Warrant is registered on the register kept at the principal office of the
Company as the owner and holder thereof for all purposes, notwithstanding any
notice to the contrary, except that, if and when any Warrant is properly
assigned in blank, the Company may (but shall not be obligated to) treat the
bearer thereof as the owner of such Warrant for all purposes, notwithstanding
any notice to the contrary. Subject to section 8, a Warrant, if properly
assigned, may be exercised by a new holder without a new Warrant first having
been issued.
11.2. Office; Transfer and Exchange of Warrants.
-----------------------------------------
(a) The Company will maintain its principal office within the
continental boundaries of the United States and all notices, presentations
and demands in respect of this Warrant may be made upon it at such
location.
(b) Upon the surrender of any Warrant, properly endorsed, for
registration of transfer or for exchange at the principal office of the
Company,
14
<PAGE>
the Company at its expense will (subject to compliance with section 8, if
applicable) execute and deliver to or upon the order of the holder thereof
a new Warrant or Warrants of like tenor, in the name of such holder or as
such holder (upon payment by such holder of any applicable transfer taxes)
may direct, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock called for on the face or faces of the
Warrant or Warrants so surrendered.
11.3. Replacement of Warrants. Upon receipt of evidence reasonably
-----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant (which, in the case of a holder of a Warrant which is an insurance
company (as defined in the Securities Act), an investment company registered
under the Investment Company Act of 1940, any employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974, any
domestic or foreign bank, savings and loan association (as defined in Section
(a)(1)(vi) of Rule 144A under the Securities Act) or an original holder of this
Warrant and its nominee (an "institutional holder"), may be a written statement
as to such loss, theft, destruction or mutilation, which statement shall be
reasonably satisfactory in form and substance to the Company) and, in the case
of any such loss, theft or destruction of any Warrant, upon delivery of
indemnity (which, in the case of an institutional holder of a Warrant, may be
such holder's unsecured written agreement of indemnity) reasonably satisfactory
to the Company in form and amount or, in the case of any such mutilation, upon
surrender of such Warrant for cancellation at the principal office of the
Company, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
12. Definitions. As used herein, unless the context otherwise
-----------
requires, the following terms have the following respective meanings:
Additional Shares of Common Stock: All shares (including treasury
---------------------------------
shares) of Common Stock issued or sold (or deemed issued or sold pursuant to
section 2.3 or 2.4) by the Company after the date hereof, whether or not
subsequently reacquired or retired by the Company, other than shares issued upon
the exercise of the Warrants.
Affiliate: With respect to a Person, any other Person that directly,
---------
or indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person.
Business Day: Any day other than a Saturday or a Sunday or a day on
------------
which commercial banking institutions in the City of New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are specified)
shall mean calendar days.
15
<PAGE>
Commission: The Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act.
Common Stock: As defined in the introduction to this Warrant, such
------------
term to include any stock into which such Common Stock shall have been changed
or any stock resulting from any reclassification of such Common Stock, and all
other stock of any class or classes (however designated) of the Company the
holders of which have the right, without limitation as to amount, either to all
or to a share of the dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference.
Company: As defined in the introduction to this Warrant, such term to
-------
include any corporation which shall succeed to or assume the obligations of the
Company hereunder in compliance with section 3.
Convertible Securities: Any evidences of indebtedness, shares of stock
----------------------
(other than Common Stock) or other securities directly or indirectly convertible
into or exchangeable for Common Stock.
Current Market Price: On any date specified herein, the average daily
--------------------
Market Price during the period of the most recent 20 days, ending on such date,
on which the national securities exchanges were open for trading, except that if
no Common Stock is then listed or admitted to trading on any national securities
exchange or quoted in the over-the-counter market, the Current Market Price
shall be the Market Price on such date.
Exchange Act: The Securities Exchange Act of 1934, or any similar
------------
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
Independent Financial Expert: A nationally recognized investment
----------------------------
banking firm that does not have a direct or indirect financial interest in the
Company or any of its affiliates and has not been and, at the time it is called
upon to give independent financial advice to the Company, is not (and none of
whose directors, officers, employees or affiliates is) a promoter, director or
officer of the Company or any of its affiliates, and has not been retained to
provide, within the past two years, any advice or opinions to the Company or any
of its affiliates except as an Independent Financial Expert.
Initiating Holders: Any holder or holders of Registrable Securities
------------------
holding at least a majority of the Registrable Securities by number of shares at
the time and initiating a request pursuant to section 20.1 for the registration
of all or part of such holder's or holders' Registrable Securities.
16
<PAGE>
Market Price: On any date specified herein, the amount per share of
------------
the Common Stock, equal to (a) the last sale price of such Common Stock, regular
way, on such date or, if no such sale takes place on such date, the average of
the closing bid and asked prices thereof on such date, in each case as
officially reported on the principal national securities exchange on which such
Common Stock is then listed or admitted to trading, or (b) if such Common Stock
is not then listed or admitted to trading on any national securities exchange
but is designated as a national market system security by the NASD, the last
trading price of the Common Stock on such date, or (c) if there shall have been
no trading on such date or if the Common Stock is not so designated, the average
of the closing bid and asked prices of the Common Stock on such date as shown by
the NASD automated quotation system, or (d) if such Common Stock is not then
listed or admitted to trading on any national exchange or quoted in the
over-the-counter market, the fair value thereof determined in good faith by the
Board of Directors of the Company as of the last day of the most recently
completed fiscal quarter of the Company; provided that, at the request of the
--------
holders of a majority of the outstanding Warrants, such fair value determined by
the Board of Directors must be confirmed in writing to the holders by an
Independent Financial Expert, which shall be selected by the Board of Directors
of the Company, and retained on customary terms and conditions and at the
expense of the Company, the Independent Financial Expert shall use one or more
valuation methods that the Independent Financial Expert, in its best
professional judgment, determines to be most appropriate. The Independent
Financial Expert shall consult with management of the Company in order to allow
management to comment on the Independent Financial Expert's valuation.
NASD: The National Association of Securities Dealers, Inc.
----
Options: Rights, options and warrants, except for any rights, options
-------
or warrants distributed to members of the management of the Company or any
direct or indirect subsidiary of the Company, to subscribe for, purchase or
otherwise acquire Common Stock or Convertible Securities.
Other Securities: Any stock (other than Common Stock) and other
----------------
securities of the Company or any other Person (corporate or otherwise) which the
holders of the Warrants at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
section 3 or otherwise.
Person: A corporation, an association, a partnership, an organization,
------
a business, an individual, a government or political subdivision thereof or a
governmental agency.
17
<PAGE>
Registrable Securities: All shares of Common Stock issued or issuable
----------------------
upon exercise of the Warrants and any other securities of the Company or any of
its subsidiaries issued in exchange for, upon a reclassification, combination or
subdivision of, or in a distribution with respect to, such Common Stock or in
connection with a merger, consolidation or other reorganization of the Company.
As to any particular Registrable Securities that have been issued, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of under such registration statement, (ii) such securities have been distributed
to the public pursuant to Rule 144 promulgated under the Securities Act, (iii)
such securities shall have been otherwise transferred or disposed of, new
certificates therefor not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent transfer or disposition of
such securities shall not require registration or qualification of such
securities under the Securities Act or any similar state law then in force, or
(iv) such securities shall have ceased to be outstanding.
Registration Expenses: Any and all out-of-pocket expenses incident to
---------------------
the Company's performance of or compliance with section 20 hereof, including,
without limitation, all Commission, stock exchange or NASD registration, filing
and listing fees, all fees and expenses of complying with securities and blue
sky laws (including the reasonable fees and disbursements of counsel in
connection with blue sky qualifications and NASD filings), all fees and expenses
of the transfer agent and registrar for the Common Stock, all printing expenses,
the fees and disbursements of counsel for the Company and the Company's
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, and the reasonable fees and disbursements of one counsel retained by
the holders of Registrable Securities being registered to represent such group
of holders (which counsel shall be satisfactory to the holders of a majority of
the shares of Registrable Securities being registered), but excluding
underwriting discounts and commissions and applicable transfer and documentary
stamp taxes, if any, which shall be borne by the seller of the securities in all
cases.
Registration Rights Agreement: The Registration Rights Agreement dated
-----------------------------
as of May 17, 1996 among Rykoff-Sexton, Inc., Merrill Lynch Capital Appreciation
Partnership No. B-XVIII, L.P., Merrill Lynch KECALP L.P. 1994, ML Offshore LBO
Partnership No. B-XVIII, ML IBK Positions, Inc., MLCP Associates L.P. No. II,
Merrill Lynch KECALP L.P. 1991, Merrill Lynch Capital Appreciation Partnership
No. XIII, L.P., ML Offshore LBO Partnership No. XIII, ML Employees LBO
Partnership No. I, L.P., Merrill Lynch KECALP L.P. 1987, Merchant Banking L.P.
No. II, MLCP Associates L.P. No. IV, The Equitable Life Assurance Society of the
United States, Equitable Deal Flow Fund, L.P., Equitable Variable Life Insurance
Company and Frank H. Bevevino.
18
<PAGE>
Restricted Securities: All of the following: (a) any Warrants bearing
---------------------
the applicable legend or legends referred to in section 8.1, (b) any shares of
Common Stock which have been issued upon the exercise of Warrants and which are
evidenced by a certificate or certificates bearing the applicable legend or
legends referred to in such section and (c) any shares of Common Stock which are
at the time issuable upon the exercise of Warrants and which, when so issued,
will be evidenced by a certificate or certificates bearing the applicable legend
or legends referred to in such section.
Securities Act: The Securities Act of 1933, or any similar federal
--------------
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
Stockholders Securities: Securities proposed to be sold by those
-----------------------
stockholders who exercise their registration rights pursuant to section 4 of the
Registration Rights Agreement.
Warrant Price: As defined in section 2.1.
-------------
Warrants: As defined in the introduction to this Warrant.
--------
13. No Rights or Liabilities as Stockholder. Nothing contained in
---------------------------------------
this Warrant shall be construed as conferring upon the holder hereof any rights
as a stockholder of the Company or as imposing any obligation on such holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
14. Notices. All notices and other communications under this Warrant
-------
shall be in writing and shall be mailed by registered or certified mail, return
receipt requested, addressed (a) if to any holder of any Warrant, at the
registered address of such holder as set forth in the register kept at the
principal office of the Company, or (b) if to the Company, to the attention of
its Senior Vice President and General Counsel at its principal office, provided
--------
that the exercise of any Warrant shall be effective in the manner provided in
section 1.
15. Miscellaneous. This Warrant shall be construed and enforced in
-------------
accordance with and governed by the laws of the State of New York. The section
headings in this Warrant are for purposes of convenience only and shall not
constitute a part hereof. In case any provision in this Warrant shall be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
16. Expiration. The right to exercise this Warrant shall expire at
----------
5:00 p.m., New York City time, on the earlier of (i) September 30, 2005 and
(ii) the
19
<PAGE>
registration pursuant to section 20 of all of the shares of Common Stock
issuable upon exercise of this Warrant or the termination of the restrictions on
such shares described in section 8.3(b), provided the holders of the Warrants
receive 30 days' notice of the termination of such restrictions. The Company
shall give notice to the holder of this Warrant on September 30, 2004 and
September 1, 2005 if the right to exercise this Warrant will expire pursuant to
paragraph (i); provided that, if the Company shall fail to give notice on
--------
September 1, 2005, this Warrant shall not expire until 5:00 p.m., New York City
time, on a date 30 days after the date the Company shall give such notice of the
expiration of the right to exercise this Warrant.
17. Persons Benefitting. This Warrant shall be binding upon and
-------------------
inure to the benefit of the Company and its respective successors, assigns,
beneficiaries, executors and administrators, and the holder from time to time of
this Warrant. Nothing in this Agreement is intended or shall be construed to
confer upon any Person, other than the Company and the holder of this Warrant,
any right, remedy or claim under or by reason of this Warrant or any part
hereof.
18. Amendments. The Company may, with the consent of the holders of
----------
at least 75% of the outstanding Warrants, by supplemental agreement or
otherwise, make any amendments to this Warrant, including section 3.3; provided,
--------
however, without the consent of every holder affected thereby, the Company may
- -------
not amend the definition of Warrant Price or amend Sections 2 or 3 (except
section 3.3) of this Warrant.
19. Payments to Warrantholders. Any payment by the Company with
--------------------------
respect to the Warrants shall be made at the principal office of the Company,
located on the date hereof, at 9830 Patuxent Woods Drive, Columbia, Maryland
21046.
20. Registration Rights. 20.1. Registration on Request.
------------------- -----------------------
(a) Request. Upon the written request of one or more Initiating
-------
Holders, requesting that the Company effect the registration under the
Securities Act of all or part of such Initiating Holders' Registrable
Securities and specifying the intended method of disposition thereof, the
Company will promptly give written notice of such requested registration to
all registered holders of Registrable Securities, and thereupon the Company
will use its best efforts to effect the registration under the Securities
Act of
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request,
20
<PAGE>
(ii) all other Registrable Securities the holders of which shall
have made a written request to the Company for registration thereof
within 30 days after the giving of such written notice by the Company
(which request shall specify the intended method of disposition of such
Registrable Securities), and
(iii) all shares of Common Stock which the Company or any other
holder of Common Stock may elect to register in connection with the
offering of Registrable Securities pursuant to this section 20.1,
all to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities
and the additional shares of Common Stock, if any, so to be registered.
No written request may be made pursuant to this section 20.1 prior to
the eighth anniversary of September 4, 1992. Subject to section 20.1(e),
the Company shall not be obligated to effect more than one registration
pursuant to this paragraph whether or not all outstanding Registrable
Securities are included in such registration.
(b) Expenses. The Company will pay all Registration Expenses
--------
incurred in connection with any registration requested pursuant to this
section 20.1, and underwriting discounts and commissions and transfer taxes
and documentary stamp taxes, if any, relating to the sale or disposition by
a holder of Registrable Securities shall be paid by such holder.
(c) Effective Registration Statement. A registration requested
--------------------------------
pursuant to this section 20.1 shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has become
effective and remained effective for the period set forth in section
20.3(ii), provided that a registration which does not become effective
--------
after the Company has filed a registration statement with respect thereto
solely by reason of the refusal to proceed of the Initiating Holders (other
than any refusal to proceed based upon advice of their counsel that the
registration statement contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein not
misleading) shall be deemed to have been effected by the Company at the
request of such Initiating Holders, (ii) if after it has become effective,
such registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or
court for any reason, or (iii) if the conditions to closing specified in
the purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied, other than by reason of some act
or omission by such Initiating Holders.
21
<PAGE>
(d) Selection of Underwriters. If a requested registration pursuant
-------------------------
to this section 20.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the Company, provided, that each
managing underwriter shall be a nationally recognized investment banking
firm.
(e) Priority in Requested Registrations. If a requested registration
-----------------------------------
pursuant to section 20.1 involves an underwritten offering, and the
managing underwriter shall advise the Company in writing (with a copy to
each holder of Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering (i)
within a price range acceptable to the holders of majority of the
Registrable Securities so requested to be included or (ii) without
otherwise materially and adversely affecting the offering of the shares
being sold, then the Company will include in such registration, to the
extent of the number which the Company is so advised can be sold in such
offering, (A) first, all Registrable Securities requested to be registered,
-----
and second, securities the Company proposes to sell and other securities of
------
the Company included in such registration by the holders thereof and (B) in
case the number of Registrable Securities the registration of which shall
have been requested by all holders thereof shall in the aggregate exceed
the maximum number of shares specified by such managing underwriter, the
Registrable Securities the registration of which shall have been requested
by each holder thereof shall be included in such registration on a pro rata
--- ----
basis in the proportion that such Registrable Securities the registration
of which shall have been requested by such holder bears to the aggregate
Registrable Securities the registration of which shall have been requested
by all holders thereof. To the extent Registrable Securities are not
included in the registration as a result of this section 20.1(e), the right
of the holders thereof to register such Registrable Securities pursuant to
this section 20.1 shall not be deemed to have been effected.
20.2. Incidental Registration.
-----------------------
(a) Right to Include Registrable Securities. If the Company at any
---------------------------------------
time proposes to register any of its Common Stock under the Securities Act
(other than a registration (i) on Form S-4, S-8 or any similar forms,
(ii) in connection with the acquisition by the Company of another company
or (iii) relating to shares of Common Stock issuable upon exercise of
employee stock options or in connection with any employee benefit or
similar plan of the Company), for sale, whether or not for its own account,
on a form and in a manner that would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will give
notice (the "Registration Notice") to the holders of Registrable Securities
at least 40 calendar days
22
<PAGE>
prior to the anticipated filing date of the registration statement relating
to such registration of its intention to do so, describing such securities
and specifying the form and manner of the proposed registration (including,
without limitation, (x) whether such registration will be in connection
with an underwritten offering of the Common Stock and, if so, the identity
of the investment banker (or investment bankers) managing the offering
(collectively, the "managing underwriter") and whether such offering will
be pursuant to a "best efforts" or "firm commitment" underwriting and (y)
the price (net of any underwriting commissions, discounts and the like) at
which the Registrable Securities, if any, are reasonably expected to be
sold if disclosure of such price is acceptable to the managing
underwriter). Upon the written request of any such holder of Registrable
Securities (a "Requesting Holder") to include in such proposed registration
Registrable Securities for sale for his account, which notice is delivered
to the Company within 30 calendar days after the Registration Notice is
deemed to be given and which request shall specify the number of
Registrable Securities intended to be disposed of by such Requesting
Holder, the Company will effect the registration under the Securities Act
of all of the Registrable Securities that the Company has been so requested
to register; provided, however, that:
-------- -------
(i) if, at any time after giving such written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such
securities, the Company shall give written notice of such determination
to each Requesting Holder, and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith);
(ii) if such registration involves a firm commitment or best
efforts underwritten offering (an "Underwritten Offering"), all
Requesting Holders must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions
as apply to the Company or the other selling stockholders and must
enter into the underwriting agreement which the Company or the other
selling stockholders enter into and any other related agreements; and
(iii) in case of a determination by the Company or the other
selling stockholders to delay the registration of its equity
securities, the Company shall be permitted to delay the registration of
such Registrable Securities for the same period as the delay in
registering such other equity securities.
23
<PAGE>
(b) Expenses. The Registration Expenses incurred in connection with
--------
each registration of Registrable Securities requested pursuant to this
section 20.2 shall be paid by the Company, and each Requesting Holder shall
pay all underwriting discounts and commissions and transfer taxes and
documentary stamp taxes, if any, relating to the sale or disposition by
such holder of Registrable Securities pursuant to a registration statement
effected pursuant to this section 20.2.
(c) Priority in Incidental Registration. If a registration pursuant
-----------------------------------
to this section 20.2 involves an Underwritten Offering and the managing
underwriter advises the Company that, in its judgment, the number of shares
proposed to be included in such offering (including all Registrable
Securities) exceeds the number which can be sold without having an adverse
effect on such offering, including the price at which such securities can
be sold, then the Company will promptly so advise each Requesting Holder
and will include in such registration (i) first, the securities the Company
-----
or the person initiating such registration proposes to sell and
(ii) second, the number of such Registrable Securities and the number of
------
Stockholders Securities, if any, requested to be included in such
registration that, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, such amount to be
allocated pro rata among all such Requesting Holders and the holders of
Stockholders Securities.
(d) Selection of Underwriters. In connection with any Underwritten
-------------------------
Offering pursuant to this section 20.2, the Company shall have the right to
select the managing underwriter with respect to the offering.
(e) No registration effected under this section 20.2 shall relieve
the Company of its obligations to effect any registration pursuant to
section 20.1.
20.3. Registration Procedures. If and whenever the Company is required
-----------------------
to use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in section 20.1 or 20.2, the
Company will, as expeditiously as possible:
(i) prepare and file with the Commission, in the case of a
registration pursuant to section 20.1, within 150 days after the
request by the Initiating Holders to register their Registrable
Securities, a registration statement with respect to such Registrable
Securities on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate, as the case may be, and
which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution
thereof, and use its best efforts to cause such registration statement
to become and
24
<PAGE>
remain effective; provided that before filing with the Commission a
--------
registration statement or prospectus or any amendments or supplements
thereto, the Company will (A) furnish to one counsel, selected by the
holders of a majority of the Registrable Securities covered by such
registration statement, copies of all such documents proposed to be
filed, which documents will be subject to the timely review of such
counsel, and (B) notify each holder of Registrable Securities covered
by such registration statement of (x) any request by the Commission to
amend such registration statement or amend or supplement any
prospectus, or (y) any stop order issued or threatened by the
Commission, and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days or such
shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold (but not before
the expiration of the 90-day period referred to in Section 4(3) of the
Securities Act and Rule 174, or any successor thereto, thereunder, if
applicable) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement;
(iii) furnish to each seller of Registrable Securities covered
by the registration statement and to each underwriter, if any, of such
Registrable Securities, without charge, such number of copies of such
registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto), and the prospectus included in
such registration statement (including each preliminary prospectus),
and such other documents, as such holder may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities owned by such holder;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as any
seller thereof, and underwriter, if any, of Registrable Securities
covered by such registration statement reasonably requests and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such seller and each underwriter, if any, to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by
25
<PAGE>
such holder; provided, however, that the Company shall not for any
-------- -------
such purpose be required to (A) qualify to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
section 20.3(iv), it is not then so qualified, (B) subject itself to
taxation in any such jurisdiction, or (C) take any action which would
subject it to consent to general or unlimited service of process in any
such jurisdiction where it is not then so subject;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to
enable the seller or sellers thereof to consummate the disposition of
such Registrable Securities;
(vi) immediately notify each seller of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event which comes to the Company's attention
if, as a result of such event, the prospectus included in such
registration statement, as then in effect, includes any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading and, at
the request of any such seller, deliver a reasonable number of copies
of an amended or supplemental prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they were made, not misleading;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, in each case as soon as practicable, an
earnings statement covering a period of at least twelve months,
beginning with the first day of the Company's first full fiscal quarter
after the effective date of the registration statement (as the term
"effective date" is defined in Rule 158(c) under the Securities Act),
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act including, at the option of the Company, Rule 158
thereunder;
(viii) use its reasonable best efforts to cause all such
Registrable Securities to be listed on a national securities exchange
or the National Association of Securities Dealers National Market
System, as the case
26
<PAGE>
may be, and to enter into such customary agreements including a
listing application and indemnification agreement in customary form,
provided that the applicable listing requirements are satisfied, and
--------
to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement no later than the
effective date of such registration statement;
(ix) use its best efforts to obtain a "cold comfort" letter
from the independent public accountants for the Company in customary
form and covering matters of the type customarily covered by such
letters as the holders of a majority of the Registrable Securities
being sold reasonably request and provided that such request is
reasonable in the managing underwriter's point of view;
(x) execute and deliver all instruments and documents
(including, in an Underwritten Offering, an underwriting agreement in
customary form) and take such other actions and obtain such
certificates and opinions as the holders of a majority of the
Registrable Securities being sold reasonably request in order to effect
an underwritten public offering of such Registrable Securities; the
Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such
Registrable Securities as the Company may from time to time reasonably
request in writing in connection with effecting such offering;
(xi) permit any seller which the Board of Directors determines
in good faith after consultation with such seller and its advisors to
be a controlling person of the Company (within the meaning of the
Securities Act or the Exchange Act) to participate in the preparation
of such registration statement and to include therein material,
furnished to the Company in writing, which in the reasonable judgment
of such seller should be included and which is acceptable to the
Company.
Each seller of Registrable Securities will, upon receipt of any notice
from the Company of the happening of any event of the kind described in
section 20.3(vi), forthwith discontinue disposition of the Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such seller's receipt of the copies of the supplemented or
amended prospectus contemplated by section 20.3(vi), and, if so directed by
the Company, such seller will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such
seller's possession, of the prospectus covering such Registrable Securities
at the time of receipt of such notice.
27
<PAGE>
20.4. Underwritten Offerings.
----------------------
(a) If a registration pursuant to section 20.1 or 20.2 involves an
Underwritten Offering, each holder of Registrable Securities agrees, whether or
not such holder's Registrable Securities are included in such registration, not
to effect any public sale or distribution, including any sale pursuant to Rule
144 under the Securities Act, of any Registrable Securities, or of any security
convertible into or exchangeable or exercisable for any Registrable Securities
(other than as part of such Underwritten Offering), without the consent of the
managing underwriter, during a period commencing seven calendar days before and
ending 90 calendar days (or such number of days as the managing underwriter
shall designate, but not more than 180 days) after the effective date of such
registration.
(b) The Company agrees, if so required by the managing underwriter, not to
effect any public sale or distribution of Common Stock or securities convertible
into Common Stock during the seven days prior to and the 60 days after any
Underwritten Offering pursuant to section 20.1 has become effective, except as
part of such Underwritten Offering and except pursuant to registrations on Form
S-4 or S-8 or any similar forms.
(c) If requested by the underwriters for any underwritten offering by
holders of Registrable Securities pursuant to a registration requested under
section 20.1, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, each such holder and the underwriters, and to
contain such representations and warranties by the Company and such other terms
as are generally prevailing in agreements of this type, including, without
limitation, indemnities to the effect and to the extent provided in section
20.5. The holders of the Registrable Securities will cooperate with the Company
in the negotiation of the underwriting agreement and will give consideration to
the reasonable suggestions of the Company regarding the form thereof. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement.
28
<PAGE>
20.5. Indemnification.
---------------
(a) Indemnification by the Company. In the event of any registration of
------------------------------
any securities of the Company under the Securities Act pursuant to section 20.1
or 20.2, the Company will, and it hereby does, indemnify and hold harmless, to
the extent permitted by law, the holders of any Registrable Securities covered
by such registration statement, its directors, trustees and officers or general
and limited partners (and directors, trustees and officers thereof and, if such
holder is a portfolio or investment fund, its investment advisors or agents),
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of the Securities Act, as follows:
(i) against any and all loss, liability, claim, damage or expense,
joint or several, arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained, on the effective
date thereof, in any registration statement (or any amendment or supplement
thereto), including all documents incorporated therein by reference, or in
any preliminary prospectus or prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense,
joint or several, to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense reasonably incurred by them in
connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company
29
<PAGE>
by or on behalf of any underwriter or such holder expressly for use in the
preparation of any registration statement (or any amendment thereto) or any
preliminary prospectus or prospectus (or any amendment or supplement thereto);
and provided, further, that the Company will not be liable to (i) any Person who
-------- -------
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter within the meaning of
the Securities Act or (ii) any such holder, in each case, under the indemnity
agreement in this section 20.5(a), with respect to any preliminary prospectus or
the final prospectus or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, liability, claim, damage or
expense of such underwriter or controlling Person or such holder results from
the fact that such underwriter or holder sold Registrable Securities to a Person
to whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter or holder. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such holder or any such director, trustee, officer, general or limited
partner, investment advisor or agent, underwriter or controlling Person and
shall survive the transfer of such securities by such holder.
(b) Indemnification by the Sellers. The Company may require, as a
------------------------------
condition to including any Registrable Securities in any registration statement
filed in accordance with section 20.1 or 20.2, that it shall have received an
undertaking, reasonably satisfactory to it, from the prospective seller of such
Registrable Securities or any underwriter, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in section 20.5(a)) the
Company and its directors, officers and controlling Persons, and their
respective directors, officers, general and limited partners, managing
directors, and, in the case of an undertaking from a prospective seller of
Registrable Securities, any underwriter, and their respective controlling
Persons with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller or underwriter, specifically stating that
it is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company, any seller, or any underwriter, as the case may be, or
any of their respective directors, trustees, officers, controlling Persons,
general or limited partners or managing directors and shall survive the transfer
of such securities by
30
<PAGE>
such underwriter. The obligations of the Company and such sellers pursuant to
this section 20.5 are to be several; provided, however, that, with respect to
-------- -------
each claim pursuant to this section 20.5, the Company shall be liable for the
full amount of such claim and each such seller's maximum liability under this
section shall be limited to an amount equal to the net proceeds actually
received by such seller (after deducting any underwriting discount and expenses)
from the sale of Registrable Securities being sold pursuant to such registration
statement or prospectus by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding
involving a claim referred to in this section 20.5, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided,
--------
however, that the failure of any indemnified party to give notice as provided
- -------
herein shall not relieve the indemnifying party of its obligations under this
section 20.5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, in which case the
indemnifying party shall not be liable for the fees and expenses of (i) more
than one counsel for all holders of Registrable Securities selected by a
majority of the holders of Registrable Securities being registered, (ii) more
than one counsel for the underwriters or (iii) more than one counsel for the
Company in connection with any one action or separate but similar or related
actions. An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
The indemnifying party will not, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in
31
<PAGE>
respect of which indemnification may be sought hereunder (whether or not
such indemnified party or any Person who controls such indemnified party is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability arising out of such claim, action, suit or
proceeding.
Notwithstanding anything to the contrary set forth herein, and without
limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim; provided, however, that such counsel shall be required
-------- -------
to cooperate with any counsel retained by the Company, unless they are
adverse parties.
(d) Other Indemnification. The Company and each seller of
---------------------
Registrable Securities shall provide for the foregoing indemnity (with
appropriate modifications) in any underwriting agreement with respect to
any required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other than
the Securities Act .
20.6. Contribution. If the indemnification provided for in section
------------
20.5 is unavailable or insufficient to hold harmless an indemnified party under
section 20.5(a) or (b), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in section 20.5(a) or (b) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other in connection with
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations,
including, without limitation, the relative benefits received by each party from
the offering of the Registrable Securities, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or omission.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statements or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this section 20.6
were to be determined by pro rata or per capita allocation (even if the
underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this section 20.6. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this section 20.6 shall be deemed to
include any legal or other expenses reasonably
32
<PAGE>
incurred by such indemnified party in connection with investigating or defending
any action or claim (which shall be limited as provided in section 20.5(c) if
the indemnifying party has assumed the defense of any such action in accordance
with the provisions thereof) which is the subject of this section 20.6.
Promptly after receipt by an indemnified party under this section 20.6 of notice
of the commencement of any action against such party in respect of which a claim
for contribution may be made against an indemnifying party under this section
20.6, such indemnified party shall notify the indemnifying party in writing of
the commencement thereof if the notice specified in section 20.5(c) has not been
given with respect to such action; provided that the omission so to notify the
--------
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise under this section 20.6,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. The Company and each holder of Registrable Securities
agrees with each other and the underwriters of the Registrable Securities, if
requested by such underwriters, that (i) the underwriters' portion of such
contribution shall not exceed the underwriting discount and (ii) the amount of
such contribution of a seller of Registrable Securities shall not exceed an
amount equal to the net proceeds actually received by such seller from the sale
of Registrable Securities in the offering to which the losses, liabilities,
claims, damages or expenses of the indemnified parties relate. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
JP FOODSERVICE, INC.
By: /s/ George T. Megas
------------------------------
Vice President-Finance
[Seal]
/s/ David M. Abramson
- ----------------------------
Secretary
33
<PAGE>
FORM OF SUBSCRIPTION
--------------------
[To be executed only upon exercise of Warrant]
To JP FOODSERVICE, INC.
The undersigned registered holder of the within Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder, shares
of Common Stock of JP FOODSERVICE, INC. and herewith makes payment of $
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to , whose address is .
Dated:
-----------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of
Warrant)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
34
<PAGE>
FORM OF ASSIGNMENT
------------------
[To be executed only upon transfer of Warrant]
For valued received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto the rights represented
by such Warrant to purchase shares of Common Stock of JP FOODSERVICE,
INC. to which such Warrant relates, and appoints Attorney to make such
transfer on the books of JP FOODSERVICE, INC. maintained for such purpose, with
full power of substitution in the premises .
Dated:
-----------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of
Warrant)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
Signed in the presence of:
- --------------------------
35
<PAGE>
The issuance and sale of shares upon the exercise of this Warrant have
not been registered under the Securities Act of 1933, as amended, and
accordingly neither this Warrant nor any such shares may be
transferred in the absence of such registration or an exemption
therefrom under such Act. This Warrant and such shares may be
transferred only in compliance with the conditions specified in this
Warrant.
JP FOODSERVICE, INC.
Common Stock Purchase Warrant
Expiring September 30, 2005
No. W-2 December 23, 1997
CUSIP No. 466232 11 3
JP FOODSERVICE, INC., a Delaware corporation (herein, together with its
successors and assigns, the "Company"), for value received, hereby certifies
that Bankers Trust New York Corporation, or registered assigns, is entitled to
purchase from the Company 70,697 duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock, par value $.01 per share (the "Common
Stock") of the Company at the purchase price per share of $13.18696, at any time
or from time to time prior to 5:00 p.m., New York City time, on September 30,
2005 (or such other date as may be determined pursuant to section 16), all
subject to the terms, conditions and adjustments set forth below in this
Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the "Warrants",
such term to include all such warrants issued in exchange or substitution
therefor) originally issued by the Company in connection with the transactions
contemplated by the Agreement and Plan of Merger dated as of June 30, 1997, as
amended, among the Company, Hudson Acquisition Corp. and Rykoff-Sexton, Inc. In
connection with such transactions, the Warrants were issued in replacement of
Common Stock Purchase Warrants dated May 17, 1996 of Rykoff-Sexton, Inc.
evidencing the right to purchase an aggregate of 331,761 shares of common stock
of Rykoff-Sexton, Inc. The Warrants originally so issued evidence rights to
purchase an aggregate of 229,763 shares of Common Stock subject to adjustment as
provided herein. Certain capitalized terms used in this Warrant are defined in
section 12; references to a "section" are, unless otherwise specified, to one of
the sections of this Warrant.
<PAGE>
1. Exercise of Warrant. 1.1. Manner of Exercise. This Warrant may be
------------------- ------------------
exercised by the holder hereof, in whole or in part, during normal business
hours on any Business Day, by surrender of this Warrant to the Company at its
principal office maintained pursuant to section 11.2(a), accompanied by (i) a
subscription in substantially the form attached to this Warrant (or a reasonable
facsimile thereof) duly executed by such holder, (ii) payment, in cash or by
certified or official bank check payable to the order of the Company in the
amount obtained by multiplying (a) the number of shares of Common Stock (without
giving effect to any adjustment thereof) designated in such subscription by (b)
$13.18696, whereupon such holder shall be entitled to receive the number of duly
authorized, validly issued, fully paid and nonassessable shares of Common Stock
(or Other Securities determined as provided in sections 2 through 4) and (iii)
the written representation by such holder that: (a) such holder is acquiring
the Common Stock being acquired by it pursuant to the exercise of this Warrant
for its own account for investment and not with a view to the distribution of
such Common Stock in violation of the Securities Act; and (b) (A) if such holder
is an insurance company, such holder is not acquiring the Common Stock or any
interest therein with assets allocated to any separate account maintained by
such holder in which any employee benefit plan (or its related trust) has any
interest or (B) if such holder is a bank, no part of the funds used to acquire
the Common Stock will be drawn from any trust fund or other account held by such
holder in which any employee benefit plan has any interest. As used in this
section, the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned thereto in Section 3 of the Employee Retirement
Income Security Act of 1974, as amended.
1.2. When Exercise Effective. Each exercise of this Warrant shall be deemed
-----------------------
to have been effected immediately prior to the close of business on the Business
Day on which this Warrant shall have been surrendered to the Company as provided
in section 1.1, and at such time the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in section 1.3 shall be deemed
to have become the holder or holders or record thereof.
1.3. Delivery of Stock Certificates, etc. As soon as practicable after the
------------------------------------
exercise of this Warrant, in whole or in part, and in any event within ten
Business Days thereafter, the Company at its expense (including the payment by
it of any applicable issue taxes) will cause to be issued in the name of and
delivered to the holder hereof or, subject to section 8, as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, (a) a
certificate or certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock (or Other Securities) to
which such holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which such holder would otherwise be entitled, cash in an
amount equal to the same fraction of the Market Price per share on the Business
Day next preceding the date of such exercise and (b) in case such exercise is in
part only, a new Warrant or Warrants of like tenor, calling in the aggregate on
the face or faces thereof for issuance of the number of
2
<PAGE>
shares of Common Stock equal (without giving effect to any adjustment therein)
to the number of such shares called for on the face of this Warrant minus the
number of such shares so designated by such holder upon such exercise as
provided in section 1.1.
2. Adjustment of Common Stock Issuable Upon Exercise. 2.1. General;
------------------------------------------------- -------
Warrant Price. The number of shares of Common Stock which the holder of this
- -------------
Warrant shall be entitled to receive upon each exercise hereof shall be
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this section 2) be issuable upon such
exercise, as designated by the holder hereof pursuant to section 1.1, by a
fraction of which (a) the numerator is $13.18696 and (b) the denominator is the
Warrant Price in effect on the date of such exercise. The "Warrant Price" shall
initially be $13.18696 per share, shall be adjusted and readjusted from time to
time as provided in this section 2 and, as so adjusted or readjusted, shall
remain in effect until a further adjustment or readjustment thereof is required
by this section 2.
2.2. Adjustment of Warrant Price; Issuance of Additional Shares of Common
--------------------------------------------------------------------
Stock and Dividends. (a) In case the Company at any time or from time to time
- -------------------
after the date hereof shall issue or sell Additional Shares of Common Stock
(including Additional Shares of Common Stock deemed to be issued pursuant to
section 2.3 or 2.4) without consideration or for a consideration per share less
than the Current Market Price, then, and in each such case, subject to section
2.7, such Warrant Price shall be reduced, concurrently with such issue or sale,
to a price (calculated to the nearest .001 of a cent) determined by multiplying
such Warrant Price by a fraction
(i) the numerator of which shall be (A) the number of shares of Common
Stock outstanding immediately prior to such issue or sale plus (B) the number
of shares of Common Stock which the aggregate consideration received by the
Company for the total number of such Additional Shares of Common Stock so
issued or sold would purchase at the Current Market Price per share, and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such issue or sale,
provided that, for the purposes of this section 2.2, (x) immediately after any
- --------
Additional Shares of Common Stock are deemed to have been issued pursuant to
section 2.3 or 2.4, such Additional Shares of Common Stock shall be deemed to be
outstanding, and (y) treasury shares shall not be deemed to be outstanding and
the disposition of any thereof by the Company shall be considered an issuance or
sale of Additional Shares of Common Stock for purposes of this section 2.
(b) Extraordinary Dividends and Other Distributions. In case the Company at
-----------------------------------------------
any time or from time to time after the date hereof shall declare, order,
3
<PAGE>
pay or set apart any sum or property for or make a dividend or other
distribution (including, without limitation, any distribution of other or
additional stock or other securities or property or Options by way of dividend
or spinoff, reclassification, recapitalization or similar corporate
rearrangement) on the Common Stock, other than any regular periodic dividend,
payable in cash out of earned surplus or net profits for the year in which the
dividend is incurred or the previous year, and other than a dividend payable in
Additional Shares of Common Stock (in which case the provisions of section 2.4
shall apply), then, and in each such case, subject to section 2.7, at the
irrevocable option of the Company made at the time of the notice referred to in
section 6(a), either
(A) the Warrant Price in effect immediately prior to the close
of business on the record date fixed for the determination
of holders of any class of securities entitled to receive
such dividend or distribution shall be reduced, effective as
of the close of business on such record date, to a price
(calculated to the nearest .001 of a cent) determined by
multiplying such Warrant Price by a fraction:
(x) the numerator of which shall be the Current Market
Price in effect on such record date or, if the Common
Stock trades on an ex-dividend basis, on the date prior
to the commencement of ex-dividend trading, less the
amount of such dividend or distribution (as determined
in good faith in accordance with section 2.5 by a
resolution of the Board of Directors of the Company)
applicable to one share of Common Stock, and
(y) the denominator of which shall be such Current Market
Price in effect on such record date or, if the Common
Stock trades on an ex-dividend basis, on the date prior
to the commencement of ex-dividend trading; or
(B) the Company shall pay over to each holder of Warrants,
immediately upon exercise thereof by such holder on or after
the payment date for such dividend or distribution, the
securities and other property (including cash) which such
holder would have received (together with all distributions
thereon) if such holder had exercised, immediately prior to
the record date fixed in connection with such dividend, the
Warrants held by it, and the Company shall take whatever
steps are necessary or appropriate to keep in reserve at all
times such securities and other property (including cash) as
shall be required to
4
<PAGE>
fulfill its obligations hereunder in respect of the shares
issuable upon the exercise of all the Warrants.
2.3. Treatment of Options and Convertible Securities. In case the Company
-----------------------------------------------
at any time or from time to time after the date hereof shall issue, sell, grant
or assume, or shall fix a record date for the determination of holders of any
class of securities entitled to receive, any Options or Convertible Securities,
then, and in each such case, the maximum number of Additional Shares of Common
Stock (as set forth in the instrument relating thereto, without regard to any
provisions contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue, sale, grant or assumption or, in case such a record date
shall have been fixed, as of the close of business on such record date (or, if
the Common Stock trades on an ex-dividend basis, on the date prior to the
commencement of ex-dividend trading), provided that such Additional Shares of
--------
Common Stock shall not be deemed to have been issued unless the consideration
per share (determined pursuant to section 2.5) of such shares would be less than
the Current Market Price on the date of and immediately prior to such issue,
sale, grant, or assumption or immediately prior to the close of business on such
record date (or, if the Common Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading), as the case may be, and
provided, further, that in any such case in which Additional Shares of Common
- -------- -------
Stock are deemed to be issued,
(a) no further adjustment of the Warrant Price shall be made upon the
subsequent issue or sale of shares of Common Stock upon the exercise of
such Options or the conversion or exchange of such Convertible Securities;
(b) if such Options or Convertible Securities by their terms provide,
with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of
Additional Shares of Common Stock issuable, upon the exercise, conversion
or exchange thereof (by change of rate or otherwise), the Warrant Price
computed upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date, or date prior to the commencement
of ex-dividend trading, as the case may be, with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect such increase or
decrease insofar as it affects such Options, or the rights of conversion or
exchange under such Convertible Securities, which are outstanding at such
time;
(c) upon the expiration (or purchase by the Company and cancellation or
retirement) of any such Options which shall not have been exercised or the
expiration of any rights of conversion or exchange under any such
Convertible Securities which (or purchase by the Company and any
5
<PAGE>
cancellation or retirement of any such Convertible Security the rights of
conversion or exchange under which) shall not have been exercised, the
Warrant Price computed upon the original issue, sale, grant or assumption
thereof (or upon the occurrence of the record date, or date prior to the
commencement of ex-dividend trading, as the case may be, with respect
thereto), and any subsequent adjustments based thereon, shall, upon such
expiration (or such cancellation or retirement, as the case may be), be
recomputed as if (i) in the case of such Convertible Securities or Options
for Common Stock, the only Additional Shares of Common Stock issued or sold
were the Additional Shares of Common Stock, if any, actually issued or sold
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities and the consideration received therefor was the
consideration actually received by the Company for the issue, sale, grant
or assumption of all such Options, whether or not exercised, plus the
consideration actually received by the Company upon such exercise, or for
the issuance or sale of all such Convertible Securities which were actually
converted or exchanged, plus the additional consideration, if any, actually
received by the Company upon such conversion or exchange; and (ii) in the
case of such Options for Convertible Securities, only the Convertible
Securities, if any, actually issued or sold upon the exercise thereof were
issued at the time of the issuance, sale, grant or assumption of such
Options, and the consideration received by the Company for the Additional
Shares of Common Stock deemed to have then been issued was the
consideration actually received by the Company for the issuance, sale,
grant or assumption of all such Options, whether or not exercised, plus the
consideration deemed to have been received by the Company (pursuant to
section 2.5) upon the issuance or sale of the Convertible Securities with
respect to which such Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c) above shall have
the effect of increasing the Warrant Price by an amount in excess of the
amount of the adjustment thereof originally made in respect of the issue,
sale, grant or assumption of such Options or Convertible Securities;
provided, however, that this provision shall take into account intervening
-------- -------
adjustments made to the Warrant Price pursuant to other provisions of
section 2; and
(e) in the case of any such Options which expire by their terms not
more than 45 days after the date of issue, sale, grant or assumption
thereof, no adjustment of the Warrant Price shall be made until the
expiration or exercise of all such Options, whereupon such adjustment shall
be made in the manner provided in subdivision (c) above.
2.4. Treatment of Stock Dividends, Stock Splits, etc. In case the
------------------------------------------------
Company at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
6
<PAGE>
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective.
2.5. Computation of Consideration. For the purposes of this section 2,
----------------------------
(a) the consideration for the issuance or sale of any Additional Shares
of Common Stock shall, irrespective of the accounting treatment of such
consideration:
(i) insofar as it consists of cash, be computed at the net amount
of cash received by the Company,
(ii) insofar as it consists of property (including securities)
other than cash, be computed at the fair market value thereof at the
time of such issuance or sale, as determined in good faith by a
resolution of the Board of Directors of the Company, and
(iii) in case Additional Shares of Common Stock are issued or sold
together with other stock or securities or other assets of the Company
for a consideration which covers both, be the portion of such
consideration so received, computed as provided in clauses (i) and (ii)
above, allocable to such Additional Shares of Common Stock, all as
determined in good faith by a resolution of the Board of Directors of
the Company;
(b) Additional Shares of Common Stock deemed to have been issued
pursuant to section 2.3, relating to Options and Convertible Securities,
shall be deemed to have been issued for a consideration per share
determined by dividing
(i) the total amount, if any, received and receivable by the
Company as consideration for the issue, sale, grant or assumption of the
Options or Convertible Securities in question, plus the minimum aggregate
amount of additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such consideration to protect against dilution)
payable to the Company upon the exercise in full of such Options or the
conversion or exchange of such Convertible Securities or, in the case of
Options for Convertible Securities, the exercise of such Options for
Convertible Securities and the conversion
7
<PAGE>
or exchange of such Convertible Securities, in each case computing
such consideration as provided in the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock (as set forth in the
instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number to protect against
dilution) issuable upon the exercise of such Options or the conversion or
exchange of such Convertible Securities; and
(c) Additional Shares of Common Stock deemed to have been issued pursuant
to section 2.4, relating to stock dividends, stock splits, etc., shall be
deemed to have been issued for no consideration.
2.6. Adjustments for Combinations, etc. In case the outstanding shares of
----------------------------------
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.7. Minimum Adjustment of Warrant Price. If the amount of any adjustment
-----------------------------------
of the Warrant Price required pursuant to this section 2 would be less than one
percent (1%) of the Warrant Price in effect at the time such adjustment is
otherwise so required to be made, such amount shall be carried forward and
adjustment with respect thereto made at the time of and together with any
subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate at least one percent (1%) of such
Warrant Price; provided, however, that upon the exercise of any Warrant, all
-------- -------
necessary adjustments (calculated to the nearest .001 of a cent) not theretofore
made to the Warrant Price relating thereto by reason of the initial clause of
this sentence, up to and including the date of such exercise, shall be made.
3. Consideration, Merger, etc. 3.1. Adjustments for Consolidation,
--------------------------- ------------------------------
Merger, Sale of Assets, Reorganization, etc. In case the Company after the date
- --------------------------------------------
hereof (a) shall consolidate with or merge into any other Person and shall not
be the continuing or surviving corporation of such consolidation or merger, or
(b) shall permit any other Person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving Person but, in connection
with such consolidation or merger, the Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (c) shall sell, lease or transfer or otherwise dispose of all or
substantially all of its properties or assets to any other Person and thereafter
shall be dissolved, or (d) shall effect a capital reorganization or
reclassification (other than a
8
<PAGE>
reclassification described in Section 2.4 or 2.6) of the Common Stock then, and
in the case of each such transaction, proper provision shall be made so that,
upon the basis and the terms and in the manner provided in this Warrant, the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such transaction, shall be entitled to receive (at the aggregate
Warrant Price in effect at the time of such consummation for all Common Stock
issuable upon such exercise immediately prior to such consummation), in lieu of
the Common Stock issuable upon such exercise prior to such consummation, the
stock and other securities, cash and property to which such holder would have
been entitled upon such consummation if such holder had exercised the rights
represented by this Warrant immediately prior thereto, subject to adjustments
(subsequent to such corporate action) as nearly equivalent as possible to the
adjustments provided for in section 2 and this section 3.
3.2. Assumption of Obligations. Notwithstanding anything contained in the
-------------------------
Warrants to the contrary, the Company will not effect any of the transactions
described in clauses (a) through (d) of section 3.1 unless, prior to the
consummation thereof, each Person (other than the Company) which may be required
to deliver any stock, securities, cash or property upon the exercise of this
Warrant as provided herein shall assume, by written instrument delivered to, and
reasonably satisfactory to, the holders of at least a majority of the shares of
Common Stock issuable upon exercise of all the then outstanding Warrants, (a)
the obligations of the Company under this Warrant (and if the Company shall
survive the consummation of such transaction, such assumption shall be in
addition to, and shall not release the Company from, any continuing obligations
of the Company under this Warrant), and (b) the obligation to deliver to such
holder such shares of stock, securities, cash or property as, in accordance with
the foregoing provisions of this section 3, such holder may be entitled to
receive, and such Person shall have similarly delivered to such holder an
opinion of counsel for such Person, which counsel shall be reasonably
satisfactory to the holders of at least a majority of the shares of Common Stock
issuable upon exercise of all the then outstanding Warrants, stating that this
Warrant shall thereafter continue in full force and effect and the terms hereof
(including, without limitation, all of the provisions of this section 3) shall
be applicable to the stock, securities, cash or property which such Person may
be required to deliver upon any exercise of this Warrant or the exercise of any
rights pursuant hereto.
3.3. Other Dilutive Events. In case any event shall occur as to which the
---------------------
provisions of section 2 or section 3 are not strictly applicable but the failure
to make any adjustment would not, in the reasonable opinion of the holders of a
majority of the shares of Common Stock issuable upon exercise of the Warrants or
the Company, fairly protect the purchase rights represented by any Warrant in
accordance with the essential intent and principles of such sections, then, in
each such case, upon the written request of the holders of a majority of the
shares of Common Stock issuable upon exercise of the Warrants, the Company
shall, at its cost and expense, appoint a firm of independent certified public
accountants of
9
<PAGE>
national standing (which may be the regular auditors of the Company), which
shall give their opinion upon the adjustment, if any, on a basis consistent with
the essential intent and principles established in sections 2 and 3, necessary
to preserve, without dilution, the purchase rights represented by such Warrant.
Upon receipt of such opinion, the Company will promptly mail a copy thereof to
each holder of Warrants and upon the request of the holders of a majority of the
shares of Common Stock issuable upon exercise of the Warrants, shall make the
adjustments described therein.
4. Prohibited Actions. The Company will not, by amendment of its certificate
------------------
or articles of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issuance or sale of securities
or any other voluntary action, avoid the observance or performance of any of the
terms of this Warrant. Without limiting the generality of the foregoing, the
Company (a) will not permit the par value of any shares of Common Stock
receivable upon the exercise of this Warrant to exceed the amount payable
therefor upon such exercise, (b) will take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of Common Stock on the exercise of the Warrants
from time to time outstanding and (c) will not take any action which results in
any adjustment of the Warrant Price if the total number of shares of Common
Stock (or Other Securities) issuable after the action upon the exercise of all
of the Warrants would exceed the total number of shares of Common Stock (or
Other Securities) then authorized by the Company's certificate or articles of
incorporation and available for the purpose of issue upon such exercise.
5. Report as to Adjustments. In each case of any adjustment or readjustment
------------------------
in the shares of Common Stock (or Other Securities) issuable upon the exercise
of this Warrant, the Company will promptly compute such adjustment or
readjustment in accordance with the terms of this Warrant and prepare a report
setting forth such adjustment or readjustment and showing in reasonable detail
the method of calculation thereof and the facts upon which such adjustment or
readjustment is based, including a statement of (a) the number of shares of
Common Stock outstanding or deemed to be outstanding, (b) the Warrant Price in
effect immediately prior to such adjustment and as adjusted and readjusted (if
required by section 2) on account thereof, and (c) the consideration received or
to be received by the Company for any Additional Shares of Common Stock issued
or sold or deemed to have been issued. The Company will mail, within 30 days of
such event requiring such adjustment, a copy of each such report to each holder
of a Warrant and will, upon the written request at any time of any holder of a
Warrant, furnish to such holder a like report setting forth the Warrant Price at
the time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all such reports and the reports referred to in
the last sentence of this section 5 at its principal office and will cause the
same to be available for inspection at such office during normal business hours
by any holder of a Warrant or its representatives or any prospective purchaser
of a Warrant designated by the
10
<PAGE>
holder thereof. In addition to the report referred to above, the holders of not
less than a majority of the Common Stock issuable upon exercise of the
outstanding Warrants may request the Company, at the Company's cost and expense,
to cause independent certified public accountants of national standing (which
may be the regular auditors of the Company) to verify such computation and will
deliver to each holder a report showing in reasonable detail how such
verification was effected.
6. Notices of Corporate Action. In the event of
---------------------------
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a regular periodic dividend, payable in
cash out of earned surplus or net profits for the year in which the dividend
is incurred or the previous year) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class
or any other securities or property, or to receive any other right, which
notice in the case of a dividend or distribution of the type described in
section 2.2 shall inform each holder of a Warrant of the Company's option
under such section, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger involving the Company and any other Person or any transfer of all or
substantially all the assets of the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or winding up
of the Company,
the Company will mail to each holder of a Warrant a notice specifying (i) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, and (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding up. Such notice shall be
mailed at least 20 days prior to the date therein specified.
7. Registration of Common Stock. If any shares of Common Stock required to
----------------------------
be reserved for purposes of exercise of this Warrant require registration with
or approval of any governmental authority under any federal or state law
11
<PAGE>
(other than the Securities Act) before such shares may be issued upon exercise,
the Company will, at its expense and as expeditiously as possible, use its best
efforts to cause such shares to be duly registered or approved, as the case may
be. At any such time, but only for so long, as Common Stock is registered under
the Exchange Act and listed on any national securities exchange, the Company
will, at its expense, obtain promptly and maintain the approval for listing in
each such exchange, upon official notice of issuance, the shares of Common Stock
issuable upon exercise of the then outstanding Warrants and maintain the listing
of such shares after their issuance; and the Company will also list on such
national securities exchange, will register under the Exchange Act and will
maintain, for so long as any shares of Common Stock are listed, such listing of,
any Other Securities that at any time are issuable upon exercise of the
Warrants, if and at the time that any securities of the same class shall be
listed on such national securities exchange by the Company.
8. Restrictions on Transfer. 8.1. Restrictive Legends. Except as otherwise
------------------------ -------------------
permitted by this section 8, each Warrant (including each Warrant issued upon
the transfer of any Warrant) shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"The issuance and sale of shares upon the exercise of this Warrant have not
been registered under the Securities Act of 1933, as amended, and accordingly
neither this Warrant nor any such shares may be transferred in the absence of
such registration or any exemption therefrom under such Act. This Warrant and
such shares may be transferred only in compliance with the conditions
specified in this Warrant."
Except as otherwise permitted by this section 8, each certificate for Common
Stock (or Other Securities) issued upon the exercise of any Warrant, and each
certificate issued upon the transfer of any such Common Stock (or Other
Securities), shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The issuance and sale of the securities represented by this certificate
have not been registered under the Securities Act of 1933, as amended, and such
securities may not be transferred except pursuant to an effective registration
statement, or an exemption from registration, under said Act."
8.2. Notice of Proposed Transfer; Opinions of Counsel. Prior to any transfer
------------------------------------------------
of any Restricted Securities which are not registered under an effective
registration statement under the Securities Act, the holder thereof will give
written notice to the Company of such holder's intention to effect such transfer
and to comply in all other respects with this section 8.2. Each such notice (1)
shall describe the manner and circumstances of the proposed transfer and (2) be
12
<PAGE>
accompanied by (a) an opinion of counsel for the holder or, if agreed to by the
Board of Directors of the Company, an opinion of counsel to the Company, which
opinion shall be reasonably satisfactory to the Company or (b) a no-action
letter from the Commission addressed to the Company, such holder or either of
their counsel to the effect that no registration statement is required because
of the availability of an exemption from registration under the Securities Act.
8.3. Termination of Restrictions. The restrictions imposed by this section 8
---------------------------
upon the transferability of Restricted Securities shall cease and terminate as
to any particular Restricted Securities (a) when such securities shall have been
effectively registered under the Securities Act or (b) when, in the opinion of
counsel for the holder thereof, which opinion shall be reasonably satisfactory
to the Company, such restrictions are no longer required in order to insure
compliance with the Securities Act. Whenever such restrictions shall cease and
terminate as to any Restricted Securities, the holder thereof shall be entitled
to receive from the Company, without expense (other than applicable transfer
taxes, if any), new securities of like tenor not bearing the applicable legends
required by section 8.1.
8.4. Expenses; Benefits to Certain Transferees. The Company will pay the
-----------------------------------------
reasonable fees, expenses and disbursements of counsel for the holder of
Restricted Securities (other than in-house counsel) and counsel for the Company
in connection with all opinions rendered pursuant to this section 8.
9. Availability of Information. The Company will comply with the reporting
---------------------------
requirements of Section 13 and 15(d) of the Exchange Act and will comply with
all other public information reporting requirements of the Commission (including
Rule 144 promulgated by the Commission under the Securities Act) from time to
time in effect and relating to the availability of an exemption from the
Securities Act for the sale of any Restricted Securities. The Company will also
cooperate with each holder of any Restricted Securities in supplying such
information as may be necessary for such holder to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of an exemption from the Securities Act for the
sale of any Restricted Securities. The Company will furnish to each holder of
any Warrants, within 15 days upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Company to its stockholders, and copies of all
regular and periodic reports filed by the Company with any securities exchange
or with the Commission. If the Company is not required to file such reports
with the Commission, it shall furnish to each holder of any Warrants, (i) as
soon as practicable after the end of each fiscal year (but not later than 120
days), audited consolidated financial statements of the Company together with
the report of the independent certified public accountant, (ii) as soon as
practicable after the end of each of the first three quarters of each fiscal
year (but not later than 60 days), consolidated financial information and
statements of the Company for such quarter, and (iii) material disclosure items
the Company would be required to disclose pursuant to Form 8-K (or a successor
form)
13
<PAGE>
under the Exchange Act, but only when and to the extent the Company provides
such information to any of its lenders or other securityholders or to any
lenders or securityholders of its Affiliates.
10. Reservation of Stock, etc. The Company will at all times reserve and
-------------------------
keep available, solely for issuance and delivery upon exercise of the Warrants,
the number of shares of Common Stock (or Other Securities) from time to time
issuable upon exercise of all Warrants at the time outstanding. All such
securities issuable upon exercise of any Warrants shall be duly authorized and,
when issued upon such exercise, shall be validly issued and, in the case of
shares, fully paid and nonassessable with no liability on the part of the
holders thereof.
11. Ownership, Transfer and Substitution of Warrants. 11.1. Ownership of
------------------------------------------------ ------------
Warrants. The Company may treat the person in whose name any Warrant is
- --------
registered on the register kept at the principal office of the Company as the
owner and holder thereof for all purposes, notwithstanding any notice to the
contrary, except that, if and when any Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as the
owner of such Warrant for all purposes, notwithstanding any notice to the
contrary. Subject to section 8, a Warrant, if properly assigned, may be
exercised by a new holder without a new Warrant first having been issued.
11.2. Office; Transfer and Exchange of Warrants.
-----------------------------------------
(a) The Company will maintain its principal office within the continental
boundaries of the United States and all notices, presentations and demands in
respect of this Warrant may be made upon it at such location.
(b) Upon the surrender of any Warrant, properly endorsed, for registration of
transfer or for exchange at the principal office of the Company, the Company at
its expense will (subject to compliance with section 8, if applicable) execute
and deliver to or upon the order of the holder thereof a new Warrant or Warrants
of like tenor, in the name of such holder or as such holder (upon payment by
such holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face or faces of the Warrant or Warrants so surrendered.
11.3. Replacement of Warrants. Upon receipt of evidence reasonably
-----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant (which, in the case of a holder of a Warrant which is an insurance
company (as defined in the Securities Act), an investment company registered
under the Investment Company Act of 1940, any employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974, any
domestic or foreign bank, savings and loan association (as defined in Section
14
<PAGE>
(a)(1)(vi) of Rule 144A under the Securities Act) or an original holder of this
Warrant and its nominee (an "institutional holder"), may be a written statement
as to such loss, theft, destruction or mutilation, which statement shall be
reasonably satisfactory in form and substance to the Company) and, in the case
of any such loss, theft or destruction of any Warrant, upon delivery of
indemnity (which, in the case of an institutional holder of a Warrant, may be
such holder's unsecured written agreement of indemnity) reasonably satisfactory
to the Company in form and amount or, in the case of any such mutilation, upon
surrender of such Warrant for cancellation at the principal office of the
Company, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
12. Definitions. As used herein, unless the context otherwise requires, the
-----------
following terms have the following respective meanings:
Additional Shares of Common Stock: All shares (including treasury shares) of
---------------------------------
Common Stock issued or sold (or deemed issued or sold pursuant to section 2.3 or
2.4) by the Company after the date hereof, whether or not subsequently
reacquired or retired by the Company, other than shares issued upon the exercise
of the Warrants.
Affiliate: With respect to a Person, any other Person that directly, or
---------
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person.
Business Day: Any day other than a Saturday or a Sunday or a day on which
------------
commercial banking institutions in the City of New York are authorized by law to
be closed. Any reference to "days" (unless Business Days are specified) shall
mean calendar days.
Commission: The Securities and Exchange Commission or any other federal
----------
agency at the time administering the Securities Act.
Common Stock: As defined in the introduction to this Warrant, such term to
------------
include any stock into which such Common Stock shall have been changed or any
stock resulting from any reclassification of such Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all or to a
share of the dividends and liquidating dividends after the payment of dividends
and distributions on any shares entitled to preference.
Company: As defined in the introduction to this Warrant, such term to include
-------
any corporation which shall succeed to or assume the obligations of the Company
hereunder in compliance with section 3.
15
<PAGE>
Convertible Securities: Any evidences of indebtedness, shares of stock (other
----------------------
than Common Stock) or other securities directly or indirectly convertible into
or exchangeable for Common Stock.
Current Market Price: On any date specified herein, the average daily Market
--------------------
Price during the period of the most recent 20 days, ending on such date, on
which the national securities exchanges were open for trading, except that if no
Common Stock is then listed or admitted to trading on any national securities
exchange or quoted in the over-the-counter market, the Current Market Price
shall be the Market Price on such date.
Exchange Act: The Securities Exchange Act of 1934, or any similar federal
------------
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
Independent Financial Expert: A nationally recognized investment banking firm
----------------------------
that does not have a direct or indirect financial interest in the Company or any
of its affiliates and has not been and, at the time it is called upon to give
independent financial advice to the Company, is not (and none of whose
directors, officers, employees or affiliates is) a promoter, director or officer
of the Company or any of its affiliates, and has not been retained to provide,
within the past two years, any advice or opinions to the Company or any of its
affiliates except as an Independent Financial Expert.
Initiating Holders: Any holder or holders of Registrable Securities holding
------------------
at least a majority of the Registrable Securities by number of shares at the
time and initiating a request pursuant to section 20.1 for the registration of
all or part of such holder's or holders' Registrable Securities.
Market Price: On any date specified herein, the amount per share of the
------------
Common Stock, equal to (a) the last sale price of such Common Stock, regular
way, on such date or, if no such sale takes place on such date, the average of
the closing bid and asked prices thereof on such date, in each case as
officially reported on the principal national securities exchange on which such
Common Stock is then listed or admitted to trading, or (b) if such Common Stock
is not then listed or admitted to trading on any national securities exchange
but is designated as a national market system security by the NASD, the last
trading price of the Common Stock on such date, or (c) if there shall have been
no trading on such date or if the Common Stock is not so designated, the average
of the closing bid and asked prices of the Common Stock on such date as shown by
the NASD automated quotation system, or (d) if such Common Stock is not then
listed or admitted to trading on any national exchange or quoted in the over-
the-counter market, the fair value thereof determined in good faith by the Board
of Directors of the Company as of the last day of the most recently completed
fiscal quarter of the Company; provided that, at the request of the holders of a
--------
majority of the outstanding Warrants, such fair value determined by the Board of
Directors must be confirmed
16
<PAGE>
in writing to the holders by an Independent Financial Expert, which shall be
selected by the Board of Directors of the Company, and retained on customary
terms and conditions and at the expense of the Company, the Independent
Financial Expert shall use one or more valuation methods that the Independent
Financial Expert, in its best professional judgment, determines to be most
appropriate. The Independent Financial Expert shall consult with management of
the Company in order to allow management to comment on the Independent Financial
Expert's valuation.
NASD: The National Association of Securities Dealers, Inc.
----
Options: Rights, options and warrants, except for any rights, options or
-------
warrants distributed to members of the management of the Company or any direct
or indirect subsidiary of the Company, to subscribe for, purchase or otherwise
acquire Common Stock or Convertible Securities.
Other Securities: Any stock (other than Common Stock) and other securities of
----------------
the Company or any other Person (corporate or otherwise) which the holders of
the Warrants at any time shall be entitled to receive, or shall have received,
upon the exercise of the Warrants, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in exchange for or
in replacement of Common Stock or Other Securities pursuant to section 3 or
otherwise.
Person: A corporation, an association, a partnership, an organization, a
------
business, an individual, a government or political subdivision thereof or a
governmental agency.
Registrable Securities: All shares of Common Stock issued or issuable upon
----------------------
exercise of the Warrants and any other securities of the Company or any of its
subsidiaries issued in exchange for, upon a reclassification, combination or
subdivision of, or in a distribution with respect to, such Common Stock or in
connection with a merger, consolidation or other reorganization of the Company.
As to any particular Registrable Securities that have been issued, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of under such registration statement, (ii) such securities have been distributed
to the public pursuant to Rule 144 promulgated under the Securities Act, (iii)
such securities shall have been otherwise transferred or disposed of, new
certificates therefor not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent transfer or disposition of
such securities shall not require registration or qualification of such
securities under the Securities Act or any similar state law then in force, or
(iv) such securities shall have ceased to be outstanding.
17
<PAGE>
Registration Expenses: Any and all out-of-pocket expenses incident to the
---------------------
Company's performance of or compliance with section 20 hereof, including,
without limitation, all Commission, stock exchange or NASD registration, filing
and listing fees, all fees and expenses of complying with securities and blue
sky laws (including the reasonable fees and disbursements of counsel in
connection with blue sky qualifications and NASD filings), all fees and expenses
of the transfer agent and registrar for the Common Stock, all printing expenses,
the fees and disbursements of counsel for the Company and the Company's
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, and the reasonable fees and disbursements of one counsel retained by
the holders of Registrable Securities being registered to represent such group
of holders (which counsel shall be satisfactory to the holders of a majority of
the shares of Registrable Securities being registered), but excluding
underwriting discounts and commissions and applicable transfer and documentary
stamp taxes, if any, which shall be borne by the seller of the securities in all
cases.
Registration Rights Agreement: The Registration Rights Agreement dated as of
-----------------------------
May 17, 1996 among Rykoff-Sexton, Inc., Merrill Lynch Capital Appreciation
Partnership No. B-XVIII, L.P., Merrill Lynch KECALP L.P. 1994, ML Offshore LBO
Partnership No. B-XVIII, ML IBK Positions, Inc., MLCP Associates L.P. No. II,
Merrill Lynch KECALP L.P. 1991, Merrill Lynch Capital Appreciation Partnership
No. XIII, L.P., ML Offshore LBO Partnership No. XIII, ML Employees LBO
Partnership No. I, L.P., Merrill Lynch KECALP L.P. 1987, Merchant Banking L.P.
No. II, MLCP Associates L.P. No. IV, The Equitable Life Assurance Society of the
United States, Equitable Deal Flow Fund, L.P., Equitable Variable Life Insurance
Company and Frank H. Bevevino.
Restricted Securities: All of the following: (a) any Warrants bearing the
---------------------
applicable legend or legends referred to in section 8.1, (b) any shares of
Common Stock which have been issued upon the exercise of Warrants and which are
evidenced by a certificate or certificates bearing the applicable legend or
legends referred to in such section and (c) any shares of Common Stock which are
at the time issuable upon the exercise of Warrants and which, when so issued,
will be evidenced by a certificate or certificates bearing the applicable legend
or legends referred to in such section.
Securities Act: The Securities Act of 1933, or any similar federal statute,
--------------
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Stockholders Securities: Securities proposed to be sold by those stockholders
-----------------------
who exercise their registration rights pursuant to section 4 of the Registration
Rights Agreement.
Warrant Price: As defined in section 2.1.
-------------
18
<PAGE>
Warrants: As defined in the introduction to this Warrant.
--------
13. No Rights or Liabilities as Stockholder. Nothing contained in this
---------------------------------------
Warrant shall be construed as conferring upon the holder hereof any rights as a
stockholder of the Company or as imposing any obligation on such holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
14. Notices. All notices and other communications under this Warrant shall
-------
be in writing and shall be mailed by registered or certified mail, return
receipt requested, addressed (a) if to any holder of any Warrant, at the
registered address of such holder as set forth in the register kept at the
principal office of the Company, or (b) if to the Company, to the attention of
its Senior Vice President and General Counsel at its principal office, provided
--------
that the exercise of any Warrant shall be effective in the manner provided in
section 1.
15. Miscellaneous. This Warrant shall be construed and enforced in
-------------
accordance with and governed by the laws of the State of New York. The section
headings in this Warrant are for purposes of convenience only and shall not
constitute a part hereof. In case any provision in this Warrant shall be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
16. Expiration. The right to exercise this Warrant shall expire at 5:00
----------
p.m., New York City time, on the earlier of (i) September 30, 2005 and (ii) the
registration pursuant to section 20 of all of the shares of Common Stock
issuable upon exercise of this Warrant or the termination of the restrictions on
such shares described in section 8.3(b), provided the holders of the Warrants
receive 30 days' notice of the termination of such restrictions. The Company
shall give notice to the holder of this Warrant on September 30, 2004 and
September 1, 2005 if the right to exercise this Warrant will expire pursuant to
paragraph (i); provided that, if the Company shall fail to give notice on
--------
September 1, 2005, this Warrant shall not expire until 5:00 p.m., New York City
time, on a date 30 days after the date the Company shall give such notice of the
expiration of the right to exercise this Warrant.
17. Persons Benefitting. This Warrant shall be binding upon and inure to the
-------------------
benefit of the Company and its respective successors, assigns, beneficiaries,
executors and administrators, and the holder from time to time of this Warrant.
Nothing in this Agreement is intended or shall be construed to confer upon any
Person, other than the Company and the holder of this Warrant, any right, remedy
or claim under or by reason of this Warrant or any part hereof.
19
<PAGE>
18. Amendments. The Company may, with the consent of the holders of
----------
at least 75% of the outstanding Warrants, by supplemental agreement or
otherwise, make any amendments to this Warrant, including section 3.3; provided,
--------
however, without the consent of every holder affected thereby, the Company may
- -------
not amend the definition of Warrant Price or amend Sections 2 or 3 (except
section 3.3) of this Warrant.
19. Payments to Warrantholders. Any payment by the Company with
--------------------------
respect to the Warrants shall be made at the principal office of the Company,
located on the date hereof, at 9830 Patuxent Woods Drive, Columbia, Maryland
21046.
20. Registration Rights. 20.1. Registration on Request.
------------------- -----------------------
(a) Request. Upon the written request of one or more Initiating
-------
Holders, requesting that the Company effect the registration under the
Securities Act of all or part of such Initiating Holders' Registrable
Securities and specifying the intended method of disposition thereof, the
Company will promptly give written notice of such requested registration to
all registered holders of Registrable Securities, and thereupon the Company
will use its best efforts to effect the registration under the Securities
Act of
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request,
(ii) all other Registrable Securities the holders of which shall
have made a written request to the Company for registration thereof
within 30 days after the giving of such written notice by the Company
(which request shall specify the intended method of disposition of
such Registrable Securities), and
(iii) all shares of Common Stock which the Company or any other
holder of Common Stock may elect to register in connection with the
offering of Registrable Securities pursuant to this section 20.1,
all to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities
and the additional shares of Common Stock, if any, so to be registered.
No written request may be made pursuant to this section 20.1 prior to
the eighth anniversary of September 4, 1992. Subject to section 20.1(e),
the Company shall not be obligated to effect more than one registration
pursuant to this paragraph whether or not all outstanding Registrable
Securities are included in such registration.
20
<PAGE>
(b) Expenses. The Company will pay all Registration Expenses incurred
--------
in connection with any registration requested pursuant to this section 20.1, and
underwriting discounts and commissions and transfer taxes and documentary stamp
taxes, if any, relating to the sale or disposition by a holder of Registrable
Securities shall be paid by such holder.
(c) Effective Registration Statement. A registration requested
--------------------------------
pursuant to this section 20.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective and
remained effective for the period set forth in section 20.3(ii), provided that a
--------
registration which does not become effective after the Company has filed a
registration statement with respect thereto solely by reason of the refusal to
proceed of the Initiating Holders (other than any refusal to proceed based upon
advice of their counsel that the registration statement contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein not misleading) shall be deemed to have been effected by
the Company at the request of such Initiating Holders, (ii) if after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason, or (iii) if the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied, other than by reason of some act or
omission by such Initiating Holders.
(d) Selection of Underwriters. If a requested registration pursuant
-------------------------
to this section 20.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the Company, provided, that each
--------
managing underwriter shall be a nationally recognized investment banking firm.
(e) Priority in Requested Registrations. If a requested registration
-----------------------------------
pursuant to section 20.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that, in its opinion, the number
of securities requested to be included in such registration (including
securities of the Company which are not Registrable Securities) exceeds the
number which can be sold in such offering (i) within a price range acceptable to
the holders of majority of the Registrable Securities so requested to be
included or (ii) without otherwise materially and adversely affecting the
offering of the shares being sold, then the Company will include in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering, (A) first, all Registrable Securities requested to be
-----
registered, and second, securities the Company proposes to sell and other
------
securities of the Company included in such registration by the holders thereof
and (B) in case the number of Registrable Securities the registration of which
21
<PAGE>
shall have been requested by all holders thereof shall in the aggregate exceed
the maximum number of shares specified by such managing underwriter, the
Registrable Securities the registration of which shall have been requested by
each holder thereof shall be included in such registration on a pro rata basis
--- ----
in the proportion that such Registrable Securities the registration of which
shall have been requested by such holder bears to the aggregate Registrable
Securities the registration of which shall have been requested by all holders
thereof. To the extent Registrable Securities are not included in the
registration as a result of this section 20.1(e), the right of the holders
thereof to register such Registrable Securities pursuant to this section 20.1
shall not be deemed to have been effected.
20.2. Incidental Registration.
-----------------------
(a) Right to Include Registrable Securities. If the Company at any time
---------------------------------------
proposes to register any of its Common Stock under the Securities Act (other
than a registration (i) on Form S-4, S-8 or any similar forms, (ii) in
connection with the acquisition by the Company of another company or (iii)
relating to shares of Common Stock issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company), for sale, whether or not for its own account, on a form and in a
manner that would permit registration of Registrable Securities for sale to the
public under the Securities Act, it will give notice (the "Registration Notice")
to the holders of Registrable Securities at least 40 calendar days prior to the
anticipated filing date of the registration statement relating to such
registration of its intention to do so, describing such securities and
specifying the form and manner of the proposed registration (including, without
limitation, (x) whether such registration will be in connection with an
underwritten offering of the Common Stock and, if so, the identity of the
investment banker (or investment bankers) managing the offering (collectively,
the "managing underwriter") and whether such offering will be pursuant to a
"best efforts" or "firm commitment" underwriting and (y) the price (net of any
underwriting commissions, discounts and the like) at which the Registrable
Securities, if any, are reasonably expected to be sold if disclosure of such
price is acceptable to the managing underwriter). Upon the written request of
any such holder of Registrable Securities (a "Requesting Holder") to include in
such proposed registration Registrable Securities for sale for his account,
which notice is delivered to the Company within 30 calendar days after the
Registration Notice is deemed to be given and which request shall specify the
number of Registrable Securities intended to be disposed of by such Requesting
Holder, the Company will effect the registration under the Securities Act of all
of the Registrable Securities that the Company has been so requested to
register; provided, however, that:
-------- -------
22
<PAGE>
(i) if, at any time after giving such written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company shall give written notice of such determination to each Requesting
Holder, and thereupon shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith);
(ii) if such registration involves a firm commitment or best efforts
underwritten offering (an "Underwritten Offering"), all Requesting Holders
must sell their Registrable Securities to the underwriters selected by the
Company on the same terms and conditions as apply to the Company or the
other selling stockholders and must enter into the underwriting agreement
which the Company or the other selling stockholders enter into and any
other related agreements; and
(iii) in case of a determination by the Company or the other selling
stockholders to delay the registration of its equity securities, the
Company shall be permitted to delay the registration of such Registrable
Securities for the same period as the delay in registering such other
equity securities.
(b) Expenses. The Registration Expenses incurred in connection with each
--------
registration of Registrable Securities requested pursuant to this section 20.2
shall be paid by the Company, and each Requesting Holder shall pay all
underwriting discounts and commissions and transfer taxes and documentary stamp
taxes, if any, relating to the sale or disposition by such holder of Registrable
Securities pursuant to a registration statement effected pursuant to this
section 20.2.
(c) Priority in Incidental Registration. If a registration pursuant to
-----------------------------------
this section 20.2 involves an Underwritten Offering and the managing underwriter
advises the Company that, in its judgment, the number of shares proposed to be
included in such offering (including all Registrable Securities) exceeds the
number which can be sold without having an adverse effect on such offering,
including the price at which such securities can be sold, then the Company will
promptly so advise each Requesting Holder and will include in such registration
(i) first, the securities the Company or the person initiating such registration
-----
proposes to sell and (ii) second, the number of such Registrable Securities and
------
the number of Stockholders Securities, if any, requested to be included in such
registration that, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred
23
<PAGE>
to above, such amount to be allocated pro rata among all such Requesting
Holders and the holders of Stockholders Securities.
(d) Selection of Underwriters. In connection with any Underwritten
-------------------------
Offering pursuant to this section 20.2, the Company shall have the right to
select the managing underwriter with respect to the offering.
(e) No registration effected under this section 20.2 shall relieve
the Company of its obligations to effect any registration pursuant to
section 20.1.
20.3. Registration Procedures. If and whenever the Company is
-----------------------
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in section 20.1 or
20.2, the Company will, as expeditiously as possible:
(i) prepare and file with the Commission, in the case of a
registration pursuant to section 20.1, within 150 days after the
request by the Initiating Holders to register their Registrable
Securities, a registration statement with respect to such Registrable
Securities on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate, as the case may be,
and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution
thereof, and use its best efforts to cause such registration statement
to become and remain effective; provided that before filing with the
--------
Commission a registration statement or prospectus or any amendments or
supplements thereto, the Company will (A) furnish to one counsel,
selected by the holders of a majority of the Registrable Securities
covered by such registration statement, copies of all such documents
proposed to be filed, which documents will be subject to the timely
review of such counsel, and (B) notify each holder of Registrable
Securities covered by such registration statement of (x) any request
by the Commission to amend such registration statement or amend or
supplement any prospectus, or (y) any stop order issued or threatened
by the Commission, and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days or such
shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold (but not before
the expiration of the 90-day period referred to in Section 4(3) of the
Securities Act and Rule 174, or any successor thereto, thereunder, if
applicable) and comply with the provisions of the
24
<PAGE>
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement;
(iii) furnish to each seller of Registrable Securities covered by the
registration statement and to each underwriter, if any, of such Registrable
Securities, without charge, such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), and the prospectus included in such registration statement
(including each preliminary prospectus), and such other documents, as such
holder may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such holder;
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as any seller thereof, and underwriter, if
any, of Registrable Securities covered by such registration statement reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller and each underwriter, if any, to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such holder; provided, however, that the Company shall not for any such
-------- -------
purpose be required to (A) qualify to do business as a foreign corporation in
any jurisdiction where, but for the requirements of this section 20.3(iv), it is
not then so qualified, (B) subject itself to taxation in any such jurisdiction,
or (C) take any action which would subject it to consent to general or unlimited
service of process in any such jurisdiction where it is not then so subject;
(v) use its best efforts to cause such Registrable Securities covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities;
(vi) immediately notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
which comes to the Company's attention if, as a result of such event, the
prospectus included in such registration statement, as then in effect, includes
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances
25
<PAGE>
under which they were made, not misleading and, at the request of any such
seller, deliver a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading;
(vii) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission and make available to its security holders, in
each case as soon as practicable, an earnings statement covering a period of at
least twelve months, beginning with the first day of the Company's first full
fiscal quarter after the effective date of the registration statement (as the
term "effective date" is defined in Rule 158(c) under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act including, at the option of the Company, Rule 158 thereunder;
(viii) use its reasonable best efforts to cause all such Registrable
Securities to be listed on a national securities exchange or the National
Association of Securities Dealers National Market System, as the case may be,
and to enter into such customary agreements including a listing application and
indemnification agreement in customary form, provided that the applicable
--------
listing requirements are satisfied, and to provide a transfer agent and
registrar for such Registrable Securities covered by such registration statement
no later than the effective date of such registration statement;
(ix) use its best efforts to obtain a "cold comfort" letter from the
independent public accountants for the Company in customary form and covering
matters of the type customarily covered by such letters as the holders of a
majority of the Registrable Securities being sold reasonably request and
provided that such request is reasonable in the managing underwriter's point of
view;
(x) execute and deliver all instruments and documents (including, in an
Underwritten Offering, an underwriting agreement in customary form) and take
such other actions and obtain such certificates and opinions as the holders of a
majority of the Registrable Securities being sold reasonably request in order to
effect an underwritten public offering of such Registrable Securities; the
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Securities as the
Company may from time to time
26
<PAGE>
reasonably request in writing in connection with effecting such offering;
(xi) permit any seller which the Board of Directors determines in
good faith after consultation with such seller and its advisors to be a
controlling person of the Company (within the meaning of the Securities Act
or the Exchange Act) to participate in the preparation of such registration
statement and to include therein material, furnished to the Company in
writing, which in the reasonable judgment of such seller should be included
and which is acceptable to the Company.
Each seller of Registrable Securities will, upon receipt of any notice from
the Company of the happening of any event of the kind described in section
20.3(vi), forthwith discontinue disposition of the Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such seller's receipt of the copies of the supplemented or amended
prospectus contemplated by section 20.3(vi), and, if so directed by the Company,
such seller will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such seller's possession, of the
prospectus covering such Registrable Securities at the time of receipt of such
notice.
20.4. Underwritten Offerings.
----------------------
(a) If a registration pursuant to section 20.1 or 20.2 involves an
Underwritten Offering, each holder of Registrable Securities agrees, whether or
not such holder's Registrable Securities are included in such registration, not
to effect any public sale or distribution, including any sale pursuant to Rule
144 under the Securities Act, of any Registrable Securities, or of any security
convertible into or exchangeable or exercisable for any Registrable Securities
(other than as part of such Underwritten Offering), without the consent of the
managing underwriter, during a period commencing seven calendar days before and
ending 90 calendar days (or such number of days as the managing underwriter
shall designate, but not more than 180 days) after the effective date of such
registration.
(b) The Company agrees, if so required by the managing underwriter, not
to effect any public sale or distribution of Common Stock or securities
convertible into Common Stock during the seven days prior to and the 60 days
after any Underwritten Offering pursuant to section 20.1 has become effective,
except as part of such Underwritten Offering and except pursuant to
registrations on Form S-4 or S-8 or any similar forms.
(c) If requested by the underwriters for any underwritten offering by
holders of Registrable Securities pursuant to a registration requested under
section 20.1, the Company will enter into an underwriting agreement
27
<PAGE>
with such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, each such holder and the
underwriters, and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in section 20.5. The holders of the Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof. The holders of Registrable Securities to be distributed by
such underwriters shall be parties to such underwriting agreement.
20.5. Indemnification.
---------------
(a) Indemnification by the Company. In the event of any registration of
------------------------------
any securities of the Company under the Securities Act pursuant to section 20.1
or 20.2, the Company will, and it hereby does, indemnify and hold harmless, to
the extent permitted by law, the holders of any Registrable Securities covered
by such registration statement, its directors, trustees and officers or general
and limited partners (and directors, trustees and officers thereof and, if such
holder is a portfolio or investment fund, its investment advisors or agents),
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of the Securities Act, as follows:
(i) against any and all loss, liability, claim, damage or expense,
joint or several, arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained, on the effective
date thereof, in any registration statement (or any amendment or supplement
thereto), including all documents incorporated therein by reference, or in
any preliminary prospectus or prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense,
joint or several, to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
28
<PAGE>
(iii) against any and all expense reasonably incurred by them
in connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of an untrue
statement or alleged untrue statement or omission or alleged omission made
in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any underwriter or such holder expressly for
use in the preparation of any registration statement (or any amendment
thereto) or any preliminary prospectus or prospectus (or any amendment or
supplement thereto); and provided, further, that the Company will not be
-------- -------
liable to (i) any Person who participates as an underwriter in the offering
or sale of Registrable Securities or any other Person, if any, who controls
such underwriter within the meaning of the Securities Act or (ii) any such
holder, in each case, under the indemnity agreement in this section
20.5(a), with respect to any preliminary prospectus or the final prospectus
or the final prospectus as amended or supplemented, as the case may be, to
the extent that any such loss, liability, claim, damage or expense of such
underwriter or controlling Person or such holder results from the fact that
such underwriter or holder sold Registrable Securities to a Person to whom
there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as
then amended or supplemented, whichever is most recent, if the Company has
previously furnished copies thereof to such underwriter or holder. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such director,
trustee, officer, general or limited partner, investment advisor or agent,
underwriter or controlling Person and shall survive the transfer of such
securities by such holder.
(b) Indemnification by the Sellers. The Company may require, as a
------------------------------
condition to including any Registrable Securities in any registration
statement filed in accordance with section 20.1 or 20.2, that it shall have
received an undertaking, reasonably satisfactory to it, from the
prospective seller of such Registrable Securities or any underwriter, to
indemnify and hold harmless (in the same manner and to the same extent as
set forth in section 20.5(a)) the Company and its directors, officers and
controlling Persons, and their respective directors, officers, general and
limited partners, managing directors, and, in the case of an undertaking
from a prospective seller of Registrable Securities, any underwriter, and
their respective controlling Persons with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any
29
<PAGE>
preliminary, final or summary prospectus contained therein, or any
amendment or supplement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller
or underwriter, specifically stating that it is for use in the preparation
of such registration statement, preliminary, final or summary prospectus or
amendment or supplement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company,
any seller, or any underwriter, as the case may be, or any of their
respective directors, trustees, officers, controlling Persons, general or
limited partners or managing directors and shall survive the transfer of
such securities by such underwriter. The obligations of the Company and
such sellers pursuant to this section 20.5 are to be several; provided,
--------
however, that, with respect to each claim pursuant to this section 20.5,
-------
the Company shall be liable for the full amount of such claim and each such
seller's maximum liability under this section shall be limited to an amount
equal to the net proceeds actually received by such seller (after deducting
any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such registration statement or prospectus
by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
-----------------------
party hereunder of written notice of the commencement of any action or
proceeding involving a claim referred to in this section 20.5, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
-------- -------
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this section 20.5, except to
the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate
in and to assume the defense thereof, jointly with any other indemnifying
party similarly notified, to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, unless in
such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist in respect of such
claim, in which case the indemnifying party shall not be liable for the
fees and expenses of (i) more than one counsel for all holders of
Registrable Securities selected by a majority of the holders of Registrable
Securities being registered, (ii) more than one counsel for the
underwriters or (iii) more than one counsel for the Company in connection
with any one action or separate but similar or related actions. An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and
30
<PAGE>
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional counsel or
counsels.
The indemnifying party will not, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not
such indemnified party or any Person who controls such indemnified party is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability arising out of such claim, action, suit or
proceeding.
Notwithstanding anything to the contrary set forth herein, and without
limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim; provided, however, that such counsel shall be required
-------- -------
to cooperate with any counsel retained by the Company, unless they are
adverse parties.
(d) Other Indemnification. The Company and each seller of
---------------------
Registrable Securities shall provide for the foregoing indemnity (with
appropriate modifications) in any underwriting agreement with respect to
any required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other than
the Securities Act.
20.6. Contribution. If the indemnification provided for in section
------------
20.5 is unavailable or insufficient to hold harmless an indemnified party under
section 20.5(a) or (b), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in section 20.5(a) or (b) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other in connection with
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations,
including, without limitation, the relative benefits received by each party from
the offering of the Registrable Securities, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or omission.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the
31
<PAGE>
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statements or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
section 20.6 were to be determined by pro rata or per capita allocation (even if
the underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in the first sentence of this section 20.6. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this section 20.6 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim (which
shall be limited as provided in section 20.5(c) if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof) which is the subject of this section 20.6. Promptly after receipt by
an indemnified party under this section 20.6 of notice of the commencement of
any action against such party in respect of which a claim for contribution may
be made against an indemnifying party under this section 20.6, such indemnified
party shall notify the indemnifying party in writing of the commencement thereof
if the notice specified in section 20.5(c) has not been given with respect to
such action; provided that the omission so to notify the indemnifying party
--------
shall not relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise under this section 20.6, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. The Company and each holder of Registrable Securities agrees with each
other and the underwriters of the Registrable Securities, if requested by such
underwriters, that (i) the underwriters' portion of such contribution shall not
exceed the underwriting discount and (ii) the amount of such contribution of a
seller of Registrable Securities shall not exceed an amount equal to the net
proceeds actually received by such seller from the sale of Registrable
Securities in the offering to which the losses, liabilities, claims, damages or
expenses of the indemnified parties relate. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
JP FOODSERVICE, INC.
By: /s/ George T. Megas
----------------------------
Vice President-Finance
[Seal]
/s/ David M. Abramson
- ------------------------
Secretary
32
<PAGE>
FORM OF SUBSCRIPTION
--------------------
[To be executed only upon exercise of Warrant]
To JP FOODSERVICE, INC.
The undersigned registered holder of the within Warrant hereby irrevocably
exercises such Warrant for, and purchases thereunder, shares of Common
Stock of JP FOODSERVICE, INC. and herewith makes payment of $ therefor,
and requests that the certificates for such shares be issued in the name of, and
delivered to , whose address is .
Dated: ----------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of
Warrant)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
33
<PAGE>
FORM OF ASSIGNMENT
------------------
[To be executed only upon transfer of Warrant]
For valued received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto the rights represented by
such Warrant to purchase shares of Common Stock of JP FOODSERVICE, INC.
to which such Warrant relates, and appoints Attorney to make such
transfer on the books of JP FOODSERVICE, INC. maintained for such purpose, with
full power of substitution in the premises.
Dated: ----------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of
Warrant)
----------------------------------
(Street Address)
----------------------------------
(City) (State) (Zip Code)
Signed in the presence of:
- --------------------------
34
<PAGE>
EXHIBIT 10.1.1
FIVE YEAR CREDIT AGREEMENT
Dated as of December 23, 1997
among
RYKOFF-SEXTON, INC.,
and
JP FOODSERVICE DISTRIBUTORS, INC.,
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A.,
as Administrative Agent,
NATIONSBANC MONTGOMERY SECURITIES, INC.
and
CHASE SECURITIES, INC.,
as Co-Arrangers,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
and
BANK OF AMERICA, NT & SA,
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS.......................................................1
SECTION 1.01. Defined Terms...........................................1
-------------
SECTION 1.02. Accounting Terms, Etc..................................32
---------------------
SECTION 1.03. Terms Generally........................................33
---------------
SECTION 1.04. Directly or Indirectly.................................33
----------------------
ARTICLE II. THE LOANS......................................................33
SECTION 2.01. Revolving Loans........................................33
---------------
SECTION 2.02. Swingline Loan Subfacility.............................37
--------------------------
SECTION 2.03. Letter of Credit Subfacility...........................39
----------------------------
SECTION 2.04 Competitive Loan Subfacility...........................44
----------------------------
SECTION 2.05. Voluntary Termination..................................46
---------------------
SECTION 2.06. Fees...................................................46
----
ARTICLE III. ADDITIONAL PROVISIONS REGARDING LOANS.........................48
SECTION 3.01. Default Rate...........................................48
------------
SECTION 3.02. Prepayments............................................48
-----------
SECTION 3.03. Extension and Conversion...............................50
------------------------
SECTION 3.04. Alternate Rate of Interest.............................50
--------------------------
SECTION 3.05. Reserve Requirements; Change in Circumstances..........51
---------------------------------------------
SECTION 3.06. Change in Legality.....................................52
------------------
SECTION 3.07. Indemnity..............................................53
---------
SECTION 3.08. Mandatory Assignment; Commitment Termination...........53
--------------------------------------------
SECTION 3.09. Concerning Joint and Several Liability of the
---------------------------------------------
Borrowers..............................................54
---------
ARTICLE IV. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S. TAXES;
EVIDENCE OF LOANS..............................................56
SECTION 4.01. Payments and Computations..............................56
-------------------------
SECTION 4.02. Pro Rata Treatment.....................................57
------------------
SECTION 4.03. Sharing of Payments....................................57
-------------------
SECTION 4.04. Net Payments...........................................58
------------
SECTION 4.05. U.S. Taxes.............................................58
----------
SECTION 4.06. Evidence of Loans......................................60
-----------------
ARTICLE V. CONDITIONS PRECEDENT............................................61
SECTION 5.01. Conditions to Closing Date.............................61
--------------------------
SECTION 5.02. Each Extension of Credit...............................63
------------------------
ARTICLE VI. FINANCIAL STATEMENTS; INFORMATION..............................64
SECTION 6.01. Reporting Requirements.................................64
----------------------
ARTICLE VII. INSPECTION OF PROPERTIES AND BOOKS............................69
SECTION 7.01. Inspection Rights of Administrative Agent and
---------------------------------------------
Lenders................................................69
-------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII. COVENANTS....................................................70
SECTION 8.01. Maintenance of Certain Financial Conditions............70
-------------------------------------------
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt............70
-------------------------------------------
SECTION 8.03. Liens..................................................71
-----
SECTION 8.04. Sale Leasebacks........................................74
---------------
SECTION 8.05. Restricted Payments; Restricted Investments............74
-------------------------------------------
SECTION 8.06. Subsidiary Stock and Debt..............................76
-------------------------
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc.............77
------------------------------------------
SECTION 8.08. Transactions with Affiliates; Tax Consolidation........78
-----------------------------------------------
SECTION 8.09. Nature of Business.....................................79
------------------
SECTION 8.10. Books and Records; Fiscal Year.........................79
------------------------------
SECTION 8.11. Corporate Existence; Licenses..........................80
-----------------------------
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc..80
-----------------------------------------------------
SECTION 8.13. Maintenance of Properties..............................80
-------------------------
SECTION 8.14. Insurance..............................................81
---------
SECTION 8.15. Compliance with Laws...................................81
--------------------
SECTION 8.16. Environmental Matters..................................82
---------------------
SECTION 8.17. Maintenance of Office..................................82
---------------------
SECTION 8.18. Future Restricted Subsidiaries.........................82
------------------------------
SECTION 8.19. Year 2000..............................................83
---------
ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS................83
SECTION 9.01. Organization and Authority of the Borrowers, etc.......83
------------------------------------------------
SECTION 9.02. Subsidiaries...........................................84
------------
SECTION 9.03. Qualification..........................................84
-------------
SECTION 9.04. Financial Statements...................................85
--------------------
SECTION 9.05. Changes, etc...........................................85
-------------
SECTION 9.06. Compliance with Laws, Other Instruments, etc...........85
--------------------------------------------
SECTION 9.07. Consents and Approvals.................................86
----------------------
SECTION 9.08. Debt, etc..............................................86
----------
SECTION 9.09. Title to Property; Leases; Investments; Existing
------------------------------------------------
Affiliate Agreements...................................86
--------------------
SECTION 9.10. Litigation.............................................87
----------
SECTION 9.11. Taxes..................................................87
-----
SECTION 9.12. Compliance with ERISA..................................88
---------------------
SECTION 9.13. Use of Loan Proceeds; Margin Regulations...............89
----------------------------------------
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc.....89
--------------------------------------------------
SECTION 9.15. Status Under Certain Statutes; Other Regulations.......90
------------------------------------------------
SECTION 9.16. Labor Matters..........................................90
-------------
SECTION 9.17. Full Disclosure........................................90
---------------
SECTION 9.18. Environmental Matters..................................90
---------------------
SECTION 9.19. Solvency...............................................91
--------
ARTICLE X. EVENTS OF DEFAULT...............................................91
SECTION 10.01. Events of Default.....................................92
-----------------
SECTION 10.02. Acceleration; Remedies................................95
----------------------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE XI. ADMINISTRATIVE AGENT...........................................96
SECTION 11.01. Appointment and Authorization.........................96
-----------------------------
SECTION 11.02. General Immunity......................................96
----------------
SECTION 11.03. Consultation with Professionals.......................97
-------------------------------
SECTION 11.04. Documents.............................................97
---------
SECTION 11.05. Rights as a Lender....................................97
------------------
SECTION 11.06. Responsibility of Administrative Agent................97
--------------------------------------
SECTION 11.07. Action by Administrative Agent........................97
------------------------------
SECTION 11.08. Notices of Event of Default, Etc......................98
---------------------------------
SECTION 11.09. Indemnification of Administrative Agent...............98
---------------------------------------
SECTION 11.10. No Representations....................................99
------------------
SECTION 11.11. Resignation; Removal..................................99
--------------------
SECTION 11.12. Syndication Agent, Documentation Agent and
Co-Arrangers.........................................100
ARTICLE XII. MISCELLANEOUS................................................100
SECTION 12.01. Notices..............................................100
-------
SECTION 12.02. Survival of Agreement................................101
---------------------
SECTION 12.03. Binding Effect.......................................101
--------------
SECTION 12.04. Benefit of Agreement.................................101
--------------------
SECTION 12.05. No Waiver; Remedies Cumulative.......................103
------------------------------
SECTION 12.06. Payment of Expenses, Etc.............................103
-------------------------
SECTION 12.07. Amendments, Waivers and Consents.....................104
--------------------------------
SECTION 12.08. Counterparts.........................................105
------------
SECTION 12.09. Headings.............................................105
--------
SECTION 12.10. Survival of Indemnification..........................105
---------------------------
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue;
------------------------------------------------
Waiver of Jury Trial.................................105
--------------------
SECTION 12.12. Severability.........................................106
------------
SECTION 12.13. Term.................................................106
----
SECTION 12.14. Entirety.............................................106
--------
</TABLE>
iii
<PAGE>
SCHEDULES
---------
Schedule I Lenders, Lender Addresses and Commitment Percentages
Schedule II Existing Letters of Credit
Schedule III Form of Guarantor Joinder Agreement
Schedule IV Form of Guaranty Agreement
Schedule V Form of Notice of Borrowing
Schedule VA-1 Form of Competitive Bid Request
Schedule VA-2 Form of Notice of Receipt of Competitive Bid Request
Schedule VA-3 Form of Competitive Bid
Schedule VA-4 Form of Competitive Bid Accept/Reject Letter
Schedule VI Form of Notice of Extension/Conversion
Schedule VII Existing Investments of the Borrowers and Subsidiaries
Schedule VIII Information Concerning Subsidiaries and Qualification
Schedule IX Existing Debt of the Borrowers and Subsidiaries
Schedule X Existing Affiliate Agreements
Schedule XI Environmental Matters
Schedule XII Approvals
Schedule XIII Existing Leases of the Borrowers and Subsidiaries
Schedule XIV Form of Lender Assignment Agreement
Schedule XV Anticipated RSI Sales
iv
<PAGE>
THIS FIVE YEAR CREDIT AGREEMENT (as amended from time to time, the "Agreement"),
---------
dated as of December 23, 1997, is made by and among RYKOFF-SEXTON, INC., a
Delaware corporation, and JP FOODSERVICE DISTRIBUTORS, INC., a Delaware
corporation; the lenders listed on Schedule I (the "Lenders"); NATIONSBANK,
---------- -------
N.A., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"); NATIONSBANC MONTGOMERY SECURITIES, INC. and CHASE
--------------------
SECURITIES, INC., as Co-Arrangers; THE CHASE MANHATTAN BANK, as Syndication
Agent; and BANK OF AMERICA, NT & SA, as Documentation Agent.
WHEREAS, the Borrowers have requested that the Lenders provide a $550 million
five year revolving credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility available
to the Borrowers on the terms and conditions hereafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
-------------
As used in this Agreement, the following terms shall have the meanings
specified below:
"Acquired Assets" shall have the meaning assigned to such term in the
---------------
definition of "Operating Cash Flow".
"Acquired Subsidiary" shall have the meaning assigned to such term in the
-------------------
definition of "Operating Cash Flow".
"Acquired Unit Adjustment" shall have the meaning assigned to such term in
------------------------
the definition of "Operating Cash Flow".
"Additional Portion" shall have the meaning assigned to such term in
------------------
Section 8.07(f)(ii).
"Administrative Agent" shall have the meaning assigned to such term in the
--------------------
heading hereof.
"Administrative Agent's Fee Letter" means that letter agreement dated as of
---------------------------------
August 15, 1997 among the Borrowers and the Administrative Agent, as amended and
modified.
<PAGE>
"Affiliate" shall mean, with respect to any designated Person, any other
---------
Person (a) directly or indirectly, through one or more intermediaries,
controlling or controlled by or under direct or indirect common control with
such designated Person, (b) which beneficially owns or holds 5% or more of the
shares of any class of Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of such designated Person, or
(c) 5% or more of any class of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by such designated Person; provided, however, that
-------- -------
none of the Lenders shall be deemed to be an Affiliate of the Borrowers or any
of their Subsidiaries solely by reason of ownership of any obligations of the
Borrowers to such Lender hereunder and under the other Credit Documents or by
reason of having the benefits of any agreements or covenants of the Borrowers
contained in this Agreement. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Stock (or other equity interest) or by contract or
otherwise.
"Agents' Fees" shall have the meaning assigned to such term in Section
------------
2.06(c).
"Agreement" shall have the meaning assigned to such term in the heading
---------
hereof.
"Anticipated RSI Sales" shall mean the sale by either Borrower or any of
---------------------
their Restricted Subsidiaries of assets listed for sale (i) as of the Closing
Date, as identified on Schedule XV attached, or expected to be sold in
connection with the integration of the Borrowers and the Restricted Subsidiaries
following the consummation of the Merger Transaction, including the
manufacturing business and redundant assets from mergers and acquisitions, and
(ii) after the Closing Date as the Borrowers may request, subject to the
reasonable review and approval by the Administrative Agent, provided that the
Board of Directors shall determine that such assets are redundant and provide an
explanation for its conclusion and the sale shall be identified and approved
within a period of two (2) years from the Closing Date (although consummation of
any such sale may occur thereafter).
"Applicable Margin" shall mean, for purposes of calculating (i) the
-----------------
applicable interest rate for any day for any Eurodollar Loan, (ii) the
applicable rate for the Facility Fee for any day for purposes of Section 2.06(a)
or (iii) the Standby Letter of Credit Fee for any standby Letter of Credit for
purposes of Section 2.06(b)(i), the applicable margin corresponding to the Total
Debt Ratio described below in effect as of the most recent Determination Date:
2
<PAGE>
<TABLE>
<CAPTION>
Applicable
Applicable Margin
Margin Applicable for
for Margin Standby
Pricing Total Debt Eurodollar for Letters of
Level Ratio Loans Facility Fee Credit
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
VI Greater than 4.5 to 1.0 55.0 bps 20.0 bps 55.0 bps
V Equal to or less than 4.5 to 45.0 bps 17.5 bps 45.0 bps
1.0 but greater than 4.0 to 1.0
IV Equal to or less than 4.0 to 1.0 35.0 bps 15.0 bps 35.0 bps
but greater than 3.5 to 1.0
III Equal to or less than 3.5 to 27.5 bps 12.5 bps 27.5 bps
1.0 but greater than 3.0 to 1.0
II Equal to or less than 3.0 to 22.5 bps 10.0 bps 22.5 bps
1.0 but greater than 2.5 to 1.0
I Equal to or less than 2.5 to 1.0 17.5 bps 7.5 bps 17.5 bps
</TABLE>
Determination of the appropriate Applicable Margins based on the Total Debt
Ratio shall be made as of each Determination Date. The Total Debt Ratio in
effect as of a Determination Date shall establish the Applicable Margins that
shall be effective as of the date designated by the Administrative Agent as the
Applicable Margin Change Date. The Administrative Agent shall determine the
Applicable Margins as of each Determination Date occurring after the Closing
Date and shall promptly notify the Borrowers and the Lenders of the Applicable
Margins so determined and of the related Applicable Margin Change Date. Such
determinations by the Administrative Agent of the Applicable Margin shall be
rebuttably presumptive evidence thereof absent manifest error. As of the
Closing Date and until the first Applicable Margin Change Date, (a) the
Applicable Margin for purposes of calculating the applicable interest rate for
any Eurodollar Loan shall be 45.0 bps, (b) the Applicable Margin for purposes of
calculating the Facility Fee shall be 17.5 bps and (c) the Applicable Margin for
purposes of calculating the Standby Letter of Credit Fee shall be 45.0 bps.
"Applicable Margin Change Date" shall mean, with respect to any
-----------------------------
Determination Date, a date designated by the Administrative Agent that is not
more than five (5) Business Days after receipt by the Administrative Agent of
the Required Financial Information for such Determination Date.
"Asset Disposition" means (i) the sale or other disposition of any property
-----------------
or asset by the Borrowers and their Restricted Subsidiaries other than as
permitted by the provisions of Section 8.07(a) through (e), and (ii) receipt by
the Borrowers and their Restricted Subsidiaries of any cash insurance proceeds
or condemnation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to their property or assets; but
excluding, in any event, Anticipated RSI Sales and Tax Reduction Transactions.
3
<PAGE>
"Attributable Debt" shall mean, with respect to any Sale Leaseback which
-----------------
occurs after the date hereof (other than a Sale Leaseback which shall have been
entered into in compliance with Section 8.04(b)), as of any date of
determination, the lesser of (a) the fair market value of the property subject
to such Sale Leaseback (as determined by the Board of Directors) at the time of
sale thereof and (b) the present value (discounted in accordance with GAAP at
the debt rate implicit in the lease of such property) as of such date of
determination of all amounts (whether designated as rentals or additional or
supplemental rentals or otherwise) payable by the lessee during the remaining
term of such Sale Leaseback (including any period for which such Sale Leaseback
has been extended and any renewal periods as to which the lessor has the
option), excluding, however, amounts so payable on account of maintenance,
ordinary repairs, insurance, taxes, assessments and other charges which cover
the cost of, or reimburse the lessor for, costs related to such Sale Leaseback
or the property subject thereto or to the use, holding or operation thereof.
"Base Rate" shall mean, for any day, a rate per annum (rounded upwards, if
---------
necessary, to the nearest whole multiple of 1/16 of 1%) equal to the greater of
(a) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% or (b)
the Prime Rate in effect on such day. For purposes hereof, (i) "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by NationsBank as its prime rate in effect at its principal office in Charlotte,
North Carolina; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective and (ii) "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System, or, if
such rate is not so released for any day which is a Business Day, the arithmetic
average (rounded upwards to the next 1/100th of 1%), as determined by the
Administrative Agent, of the quotations for the day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be rebuttably presumptive
evidence thereof absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability of the
Administrative Agent, despite its reasonable efforts, to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" shall mean any Loan bearing interest at a rate determined
--------------
by reference to the Base Rate in accordance with the provisions of Article II.
"Board of Directors" shall mean, the Board of Directors of a Borrower or a
------------------
duly authorized committee of directors lawfully exercising the relevant powers
of such Board of Directors.
"Borrower Group Member" shall mean the Borrowers, each Subsidiary, and each
---------------------
of their respective predecessors and (a) each corporation that is or was at any
time a member of the same
4
<PAGE>
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as the Borrowers or any Subsidiary, or any of their respective
predecessors, (b) each trade or business, whether or not incorporated, that is
or was at any time under common control (within the meaning of Section 414(c) of
the Code) with the Borrowers or any Subsidiary, or any of their respective
predecessors, and (c) each trade or business, whether or not incorporated, that
is or was at any time a member of the same affiliated service group (within the
meaning of Sections 414(m) and (o) of the Code) as the Borrowers or any
Subsidiary, or any of their respective predecessors.
"Borrower Premises" shall mean real property in which the Borrowers, any
-----------------
Subsidiary, or any Person which has been a Subsidiary at any time has or ever
had any direct or indirect interest, including, without limitation, ownership
thereof, or any arrangement for the lease, rental or other use thereof, or the
retention or claim of any mortgage or security interest therein or thereon.
"Borrowers" means JPFDI and RSI, together with successors and permitted
---------
assigns.
"Business Day" shall mean any day (other than a day which is a Saturday,
------------
Sunday or legal holiday in the State of North Carolina) on which banks are open
for business in Charlotte, North Carolina and New York, New York; provided,
--------
however, that, when used in connection with a Eurodollar Loan, the term
- -------
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Business or Condition", of any Person, shall mean the business,
-------- ---------
operations, assets, properties, earnings or condition (financial or other) of
such Person, provided that, such term, when used without reference to any
--------
particular Person, shall mean the Business or Condition of the Borrowers and
their Restricted Subsidiaries taken as a whole.
"Capital Lease" shall mean, as applied to any Person, any lease of any
-------------
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person or in the notes thereto, other
than, in the case of any Restricted Subsidiary, any such lease under which a
Borrower or a Predominantly Owned Restricted Subsidiary is the lessor.
"Capital Lease Obligation" shall mean, as at any date, with respect to any
------------------------
Capital Lease, the amount of the obligation of the lessee thereunder which
would, in accordance with GAAP, appear on a balance sheet of such lessee or in
the notes thereto in respect of such Capital Lease.
"Change of Control" shall mean any acquisition subsequent to the Closing
-----------------
Date by any Person or group of Persons (within the meaning of Section 13 or 14
of the Exchange Act), of (a) beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of a majority of the Voting Stock of the Company
or (b) all or substantially all of the properties and assets of the Company.
For purposes of this definition, "acquisition" by any Person or Persons of the
Voting Stock or properties and assets referred to in the preceding sentence
shall mean the earlier of (i) the actual possession thereof and (ii) the
consummation of any transaction or series of
5
<PAGE>
transactions which, with the passage of time, will give such Person or Persons
the actual possession thereof.
"Change of Control Offer" shall mean the offer by RSI to purchase the
-----------------------
Indenture Notes required to be made pursuant to Article XI of the Indenture as a
result of and following consummation of the Merger Transaction.
"Chase" shall mean The Chase Manhattan Bank, a New York state banking
-----
association.
"Closing Date" shall mean the date of this Agreement.
------------
"Closing Date Intangibles" shall mean all goodwill and other intangible
------------------------
assets that appear on a consolidated balance sheet of the Borrowers and their
Restricted Subsidiaries prepared in accordance with GAAP as of the Closing Date
immediately after giving effect to the consummation of the Merger Transaction.
"Co-Arrangers" shall mean NationsBanc Montgomery Securities, Inc. and Chase
------------
Securities, Inc.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
----
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time.
"Commission" shall mean the Securities and Exchange Commission and any
----------
other similar or successor agency of the Federal government administering the
Securities Act and the Exchange Act.
"Commitment" shall mean, (i) with respect to each Lender, the commitment of
----------
such Lender (A) to make Revolving Loans in an aggregate principal amount at any
time outstanding of up to such Lender's Commitment Percentage multiplied by the
Revolving Committed Amount (as such Revolving Committed Amount may be reduced
from time to time pursuant to Section 2.05 or increased from time to time
pursuant to Section 2.01(e)), and (B) to purchase Participation Interests in the
Swingline Loans in accordance with the provisions of Section 2.02(b)(iii) and in
the Letters of Credit in accordance with the provision of Section 2.03(c), (ii)
with respect to the Swingline Lender, the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding of
up to the Swingline Committed Amount and (iii) with respect to the Issuing
Lender, the commitment of the Issuing Lender to issue Letters of Credit in an
aggregate face amount at any time outstanding (together with the amounts of any
unreimbursed drawings thereon) of up to the LOC Committed Amount.
"Commitment Percentage" shall mean, for each Lender, the percentage
---------------------
identified as its Commitment Percentage opposite such Lender's name on Schedule
--------
I, as such percentage may be modified in connection with any increase and
- -
reallocation of commitments in accordance with the terms of Section 2.01(e) or
any assignment made in accordance with the terms of Section 12.04(b).
6
<PAGE>
"Company" means JP Foodservice, Inc., a Delaware corporation.
-------
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
---------------
pursuant to the terms of Section 2.04.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Lender in
--------------------
accordance with the provisions of Section 2.04, the fixed rate of interest
offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for Competitive
-----------------------
Bids in accordance with the provisions of Section 2.04(b).
"Competitive Bid Request Fee" shall have the meaning assigned to such term
---------------------------
in Section 2.06(d).
"Competitive Loan" means a loan made by a Lender in its discretion pursuant
----------------
to the provisions of Section 2.04.
"Competitive Loan Lenders" means, at any time, those Lenders which have
------------------------
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to such
-------------------------------
term in Section 2.04(a).
"Computation Period" shall have the meaning assigned to such term in
------------------
Section 8.05.
"Consolidated Net Income" shall mean, for any period, the net income (or
-----------------------
deficit) of the Borrowers and their Restricted Subsidiaries for such period
(taken as a cumulative whole) determined in accordance with GAAP on a
consolidated basis, after deducting portions of income properly attributable to
outside minority interests, if any, in the stock and surplus of any Restricted
Subsidiary; provided, however, that there shall in any event be excluded from
-------- -------
Consolidated Net Income (without duplication):
(a) amortization of Closing Date Intangibles;
(b) the income (or deficit) of any Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with a
Borrower or a Restricted Subsidiary;
(c) any amount representing the interest of a Borrower or any Restricted
Subsidiary in the earnings of any Person other than a Restricted
Subsidiary, except to the extent that any such earnings have been actually
received by a Borrower or such Restricted Subsidiary in the form of cash
dividends or similar distributions;
7
<PAGE>
(d) any portion of the net income of a Restricted Subsidiary which for
any reason is unavailable for the payment of dividends to a Borrower or
another Restricted Subsidiary;
(e) any deferred credit (or amortization of a deferred credit)
representing the excess of the equity in any Person at the date of
acquisition thereof over the cost of the Investment in such Person;
(f) the proceeds of any life insurance policy;
(g) any item properly classified as extraordinary in accordance with
GAAP; and
(h) all non-cash, non-recurring expenses, to the extent taken into
account in computing earnings or unusual or extraordinary items, charges
taken with respect to mergers and other expenses funded by equity such as
401(k) stock contributions, performance stock awards and the like;
and provided further, however, that (x) in determining Consolidated Net Income
-------- ------- -------
for any period during which JPFDI shall have sold the Everett Facility, losses
from such sale or other disposition shall be disregarded to the extent the
aggregate amount of all such losses (computed without regard to Closing Date
Intangibles allocable to such facility) does not exceed $3,300,000 on an after
tax basis and (y) gains in excess of losses during any period from the sale or
other disposition by the Borrowers or the Restricted Subsidiaries in the
ordinary course of business of trucks, forklifts, trailers, scrubbers, sweepers,
refrigerators or like equipment shall not be excluded from Consolidated Net
Income for such period.
"Consolidated Net Tangible Assets" shall mean, as of any date, the
--------------------------------
consolidated assets of the Borrowers and their Restricted Subsidiaries appearing
on a consolidated balance sheet of the Borrowers and their Restricted
Subsidiaries prepared in accordance with GAAP as of such date plus all
receivables outstanding under Permitted Receivables Financings less the sum
(without duplication) of all amounts which would appear on such balance sheet in
respect of (a) reserves for depreciation, depletion, obsolescence and/or
amortization of properties and all other reserves properly attributable to
assets set aside in connection with the business conducted by the Borrowers and
their Restricted Subsidiaries, (b) goodwill, trademarks, tradenames, copyrights,
patents, licenses, permits, franchises, unamortized debt discount and expense,
experimental and organization expense and all other assets which under GAAP are
deemed intangible, (c) any write-up in the book value of any assets subsequent
to the date of the most recent audited financial statements referred to in
Section 9.04, (d) Restricted Investments (valued at the book value thereof) and
(e) all liabilities other than minority interests, deferred taxes and Funded
Debt.
"Consolidated Net Worth" shall mean, as of any date, (a) the sum of capital
----------------------
stock (but excluding capital stock subscribed for but unissued) and surplus
(including retained earnings, additional paid-in capital and the balance of the
current profit and loss account not transferred to surplus) accounts of the
Borrowers and their Restricted Subsidiaries appearing on a consolidated
8
<PAGE>
balance sheet of the Borrowers and their Restricted Subsidiaries prepared in
accordance with GAAP as of such date, after eliminating all amounts properly
attributable to outside minority interests in Restricted Subsidiaries plus (b)
the amount of the aggregate amortization of Closing Date Intangibles expensed in
accordance with GAAP subsequent to the Closing Date to and including such date
of determination to the extent such amortization has reduced the surplus
accounts of the Borrowers and their Restricted Subsidiaries appearing on a
balance sheet of the Borrowers and their Restricted Subsidiaries prepared in
accordance with GAAP as of the Closing Date (after giving effect to the
consummation of the Merger Transaction).
"Credit Documents" shall mean this Agreement, the LOC Documents, the
----------------
Guaranty Agreement (including any Guarantor Joinder Agreement) and all other
related agreements and documents issued or delivered under this Agreement or
under the Guaranty Agreement (including any Guarantor Joinder Agreement) or
pursuant hereto or thereto.
"Credit Obligations" shall have the meaning provided in Section 3.09(b).
------------------
"Debt" shall mean, as applied to any Person, as of any date of
----
determination (without duplication):
(a) all obligations of such Person for borrowed money or evidenced by
bonds, debentures, notes, drafts or similar instruments, or upon which
interest payments are customarily made except for all such obligations of
each Restricted Subsidiary or Borrower to one or more of the Company, the
Borrowers and the other Restricted Subsidiaries;
(b) all obligations of such Person for all or any part of the deferred
purchase price of property or services (other than trade accounts payable
arising in the ordinary course of business which are not overdue by more
than 45 days or which are being contested in good faith by appropriate
proceedings) or for the cost of property constructed or of improvements;
(c) all obligations secured by any Lien other than a Lien deemed to
exist in connection with any Permitted Receivables Financing (including any
related filings of financing statements) provided that (i) for purposes of
Section 8.01(c), all Permitted Receivables Financing Amounts shall be
considered Debt, (ii) the Borrowers or any of their Restricted Subsidiaries
may consummate a Permitted Receivables Financing otherwise permitted by the
terms of this Agreement notwithstanding the provisions of Section 8.02, and
(iii) for no purpose other than determination of "Total Debt Ratio" as used
herein (including as used in the definition of "Applicable Margin" and in
Section 8.01(c)) shall any obligation incurred by the Borrowers or any of
their Restricted Subsidiaries pursuant to any Permitted Receivables
Financing be considered Debt, and it being understood and agreed that the
Permitted Receivables Financing Amount in respect of any Permitted
Receivables Financing shall be deemed to be an obligation secured by Liens
in connection with a Permitted Receivables Financing on or payable out of
the
9
<PAGE>
proceeds of production from property owned or held by such Person even
though such Person has not assumed or become liable for the payment of such
obligations;
(d) all Capital Lease Obligations of such Person;
(e) all preferred stock issued by such Person or required by the terms
thereof to be redeemed, or for which mandatory sinking fund payments are
due, by a fixed date;
(f) the aggregate amount of the net liability exposure of such Person
under all Hedging Agreements relating to speculative hedge arrangements
(those hedge arrangements which are required to be marked-to-market under
GAAP) as determined under GAAP; and
(g) all Guaranties by such Person of or with respect to obligations of
the character referred to in the foregoing clauses (a) through (f) of
another Person;
provided, however, that in determining the Debt of JPFDI, so long as the Sara
- -------- -------
Lee Offset Agreement shall remain in full force and effect and shall be
effective to permit the offset of principal and interest due under the Sara Lee
Note against principal and interest due under PYA's Note (or to establish
JPFDI's obligation in respect of the indebtedness evidenced by the Sara Lee Note
from and after a prepayment in full of PYA's Note as the remaining principal
balance of the Sara Lee Note after offset against amounts owing thereon of the
principal of and accrued and unpaid interest to the date of prepayment on the
PYA Note), the Debt evidenced by the Sara Lee Note shall be deemed equal to the
net amounts for which JPFDI is obligated under the Sara Lee Offset Agreement.
"Default" shall mean the occurrence of any default which upon notice, lapse
-------
of time or both would constitute an Event of Default.
"Determination Date" shall mean each date which shall be the last day of a
------------------
fiscal quarter of the Borrowers.
"Disposed Assets" shall have the meaning assigned to such term in the
---------------
definition of "Operating Cash Flow".
"Disposed Subsidiary" shall have the meaning assigned to such term in the
-------------------
definition of "Operating Cash Flow".
"Disposed Unit Adjustment" shall have the meaning assigned to such term in
------------------------
the definition of "Operating Cash Flow".
"Documentation Agent" means Bank of America, NT & SA, as identified in the
-------------------
heading hereto.
"Dollars", "dollars" or "$" shall mean lawful money of the United States of
------- ------- -
America.
10
<PAGE>
"Eligible Assignee" shall mean (i) any Lender or any Affiliate or
-----------------
Subsidiary of a Lender, and (ii) any other commercial bank reasonably acceptable
to the Administrative Agent and the Borrowers.
"Environmental Claims" shall have the meaning assigned to such term in
--------------------
Section 9.18(c).
"Environmental Law" shall mean any past, present or future Federal, state
-----------------
or local law, or any regulation, ordinance, code, plan, Order, permit, grant,
franchise, concession, restriction or agreement issued, entered, promulgated or
approved thereunder, relating to (a) the environment, human health or safety,
including, without limitation, emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment, or (b) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport, or handling of Hazardous
Substances.
"Environmental Permits" shall mean, collectively, any and all permits,
---------------------
consents, licenses, approvals and registrations of any nature at any time
required pursuant to or in order to comply with any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Eurocurrency Liabilities" shall have the meaning assigned to such term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Loan" shall mean any Revolving Loan bearing interest at a rate
---------------
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean for the Interest Period for each Eurodollar
---------------
Loan comprising part of the same borrowing (including conversions, extensions
and renewals), a per annum interest rate equal to the per annum rate determined
by the Administrative Agent on the basis of the offered rates for deposits in
dollars for a period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), which appear on the
Reuters Screen LIBO Page as of 11:00 a.m. (London time) two (2) Business Days
before the first day of such Interest Period (provided that, if at least two
--------
such offered rates appear on the Reuters Screen LIBO Page, the rate in respect
of such Interest Period will be the arithmetic mean of such offered rates). As
used herein, "Reuters Screen LIBO Page" means the display designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Eurodollar Rate Reserve Percentage" shall mean, in respect of any Lender
----------------------------------
and any Interest Period relating to any Eurodollar Loan of such Lender, the
reserve percentage applicable
11
<PAGE>
to such Lender during such Interest Period under Regulation D of the Board of
Governors of the Federal Reserve System (or, if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentages shall be so applicable)
for determining the reserve requirement (including, without limitation, any
marginal reserve requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (such Eurocurrency
Liabilities having a term equal to such Interest Period).
"Event of Default" shall have the meaning assigned to such term in Section
----------------
10.01.
"Everett Facility" shall mean the facility owned by JPFDI on the date
----------------
hereof in Everett, Massachusetts.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
------------
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same may be in effect from time to time.
"Existing Affiliate Agreements" shall have the meaning assigned to such
-----------------------------
term in Section 8.08(a).
"Existing Letters of Credit" shall mean each Letter of Credit outstanding
--------------------------
as of the Closing Date and more fully described on Schedule II.
-----------
"Extension of Credit" shall mean the making of any Loan (including any
-------------------
Swingline Loan) hereunder or the issuance, or the extension of the maturity
date, of any Letter of Credit hereunder.
"Facility Fee" shall have the meaning assigned to such term in Section
------------
2.06(a).
"Federal Funds Effective Rate" shall have the meaning assigned to such term
----------------------------
within the definition of "Base Rate".
"Fees" shall mean all fees payable pursuant to Section 2.06.
----
"Fixed Charge Coverage Ratio" shall mean, for the Borrowers and their
---------------------------
Restricted Subsidiaries as of any Determination Date, the number obtained by
dividing (a) Net Income Available for Fixed Charges for the period ("Coverage
--------
Period") of four consecutive fiscal quarters ended on such Determination Date
- ------
(on a pro forma basis (after giving effect to the Merger Transaction) for any
Determination Date that occurs prior to the third quarter of fiscal year 1999)
by (b) Fixed Charges for such Coverage Period.
"Fixed Charges" shall mean, for any period, the sum of the following
-------------
amounts: (a) Interest Expense for such period, plus (b) the aggregate amount of
----
Operating Lease Rentals accrued (whether or not actually paid) during such
period.
12
<PAGE>
"Foreign Bank" shall have the meaning assigned to such term in the
------------
definition of "Restricted Investment".
"Fractional Share Cash Payments" shall mean payments of cash by the Company
------------------------------
in lieu of issuance of fractional shares of common stock of the Company in
connection with the Merger Transaction.
"Funded Debt" shall mean, as applied to any Person, as of any date of
-----------
determination thereof, all Debt of such Person, whether secured or unsecured,
having a final maturity (or which, pursuant to the terms of a revolving credit
agreement or otherwise, is renewable or extendable at the option of such Person
for a period ending) more than one year after such date of determination,
notwithstanding the fact that (a) payments in respect thereof (whether
installment, serial maturity or sinking fund payments or otherwise) are required
to be made by such Person on demand or within one year after such date or (b)
all or any part of the amount thereof is at the time also included in current
liabilities of such Person.
"Further Period" shall have the meaning assigned to such term in Section
--------------
8.07(f)(ii).
"GAAP" shall mean generally accepted accounting principles as from time to
----
time set forth in the opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants and in statements by the
Financial Accounting Standards Board or in such opinions and statements of such
other entities as shall be approved by a significant segment of the accounting
profession in the United States of America, but subject to Section 1.02.
"Governmental Body" shall mean any Federal, state, municipal, local or
-----------------
other governmental department, commission, board, bureau, agency,
instrumentality, political subdivision or taxing authority, of any country.
"Guarantors" shall mean the Company and each of the Restricted Subsidiaries
----------
of the Borrowers which is a party to the Guaranty Agreement, including each
Subsidiary of the Borrowers which becomes a party to the Guaranty Agreement
pursuant to a Guarantor Joinder Agreement.
"Guarantor Joinder Agreement" shall mean a Guarantor Joinder Agreement
---------------------------
substantially in the form of Schedule III.
------------
"Guaranty" shall mean, as applied to any Person, any direct or indirect
--------
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of which such
Person is otherwise in any manner directly or indirectly liable, including,
without limitation, any such obligation in effect guaranteed by such Person
through any agreement (contingent or otherwise) to (a) purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
13
<PAGE>
advances, stock purchases, capital contributions or otherwise), or (b) maintain
the solvency or any balance sheet or other financial condition of the obligor of
such obligation, or (c) make payment for any products, materials or supplies or
for any transportation or services regardless of the non-delivery or non-
furnishing thereof, in any such case if the purpose or intent of such agreement
is to provide assurance that such obligation will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected against loss in respect thereof. For purposes
of all computations made under this Agreement, the amount of any Guaranty shall
be equal to the amount of the obligation guaranteed or, if not stated or
determined, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreement" shall mean the Guaranty Agreement in the form attached
------------------
as Schedule IV.
-----------
"Hazardous Substances" shall mean and include those substances included
--------------------
within the definitions of "hazardous substances," "hazardous materials," "toxic
substances" or "solid waste" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. (S) 9601 et seq.), as amended
-- ----
by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. (S) 99-499 100
Stat. 1613), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. (S)
6901 et seq.) and the Hazardous Materials Transportation Act, (49 U.S.C. (S)
-- ----
1801 et seq.), and in the regulations promulgated pursuant to said laws, all as
-- ----
amended; and in any event shall include medical wastes, infectious wastes,
asbestos, paint containing lead, and urea formaldehyde.
"Hedging Agreement" shall mean any agreement entered into by a Person for
-----------------
protection against future fluctuations in interest rates, foreign exchange
rates, commodities prices, or the like (including, but not limited to, interest
rate and/or currency swap arrangements, interest rate, currency and/or
commodities future or option contracts, and other similar agreements) and which
creates a contingent obligation of such Person to make any payments (other than
payments in respect of any fee or charge for contracting to provide the
protection provided by such agreement) to the holder(s) thereof or
counterparty(ies) thereunder upon the culmination or termination of such
agreement or otherwise.
"IDB Debt" shall mean Debt incurred to finance the construction or
--------
acquisition of industrial or pollution control facilities pursuant to state or
local law, and recourse to a Borrower and its Restricted Subsidiaries in respect
of which is limited solely to the property subject to such Liens.
"Indenture" shall mean the Indenture dated as of November 1, 1993 between
---------
RSI and Norwest Bank Minnesota, N.A., as trustee, pursuant to which RSI issued
the Indenture Notes, as amended by the Supplemental Indenture dated as of May
17, 1996 by and among RSI, the guarantors set forth therein, and Norwest Bank
Minnesota, N.A., as trustee, as the same may be further restated, extended,
renewed, amended or otherwise modified and in effect from time to time.
14
<PAGE>
"Indenture Guarantees" shall mean those certain Indenture Guarantees from
--------------------
JPFDI and each Subsidiary of the Borrowers which as of the Closing Date shall be
a Restricted Subsidiary, substantially in the form of Exhibit B to the Indenture
---------
as originally executed and delivered, providing among other things for the
subordinated guaranty by JPFDI and each Restricted Subsidiary party thereto of
all amounts from time to time owing by RSI under the Indenture, as such
Indenture Guarantees may be amended or otherwise modified from time to time
(including by any joinder agreement effective to constitute as a Guarantor under
and within the meaning thereof any Subsidiary which on or following the Closing
Date shall be designated or redesignated a Restricted Subsidiary and which shall
be or concurrently become a Guarantor under and within the meaning of the
Indenture Guarantees in compliance with Section 8.18).
"Indenture Note" shall mean any one of the 8-7/8% Senior Subordinated Notes
--------------
due 2003 issued by RSI pursuant to the Indenture, as the same may be restated,
extended, renewed, amended, or otherwise modified and in effect from time to
time.
"Interest Expense" shall mean, as applied to any Person, for any period,
----------------
the sum of the following amounts for such Person: (a) the aggregate amount of
all interest accrued (whether or not actually paid) during such period on Debt
(including, without limitation, (i) imputed interest on Capital Lease
Obligations and (ii) all imputed interest, whether in the form of "yield",
"discount" or other similar item, that accrues in respect of the Permitted
Receivables Financing Amount of any Permitted Receivables Financing entered into
by such Person (or by any Subsidiary of such Person or any other Person
"controlled" (as such term is defined in the Securities Act) by such Person),
together with any fees payable thereunder, plus (b) amortization of debt
----
discount and expense during such period (excluding deferred financing
amortization), plus (c) all fees and commissions payable in connection with any
----
letters of credit during such period. Unless otherwise specified, any reference
to Interest Expense for any period is intended as a reference to the sum for
such period of said amounts for the Borrowers and their Restricted Subsidiaries
on a consolidated basis in accordance with GAAP after eliminating all amounts
properly attributable to outside minority interests in Restricted Subsidiaries.
"Interest Payment Date" shall mean (i) as to any Base Rate Loan, the last
---------------------
day of each March, June, September and December, the date of repayment of the
principal of such Loan and the Maturity Date, (ii) as to any Eurodollar Loan or
Competitive Loan, the last day of each Interest Period for such Loan and the
Maturity Date, and in addition where the applicable Interest Period is more than
3 months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter and (iii) as to any Quoted Rate Swingline
Loan, the last day of each month (or such other dates as to which the Swingline
Lender and the Borrowers may agree). If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" shall mean (i) as to any Eurodollar Loan, a period of
---------------
one, two, three or six months' duration, as the Borrowers may elect, commencing
in each case on the date of the
15
<PAGE>
borrowing (including conversions, extensions and renewals), (ii) as to any
Quoted Rate Swingline Loan, a period commencing in each case on the date of the
borrowing and ending on the date agreed to by the Borrowers and the Swingline
Lender in accordance with the provisions of Section 2.02(b)(i) (such ending date
in any event to be not more than 7 Business Days from the date of borrowing) ,
and (iii) as to any Competitive Loan, a period commencing in each case on the
date of borrowing and ending on the date specified in the applicable Competitive
Bid whereby the offer to make such Competitive Loan was extended (such ending
date in any event to be not less than 7 nor more than 180 days from the date of
borrowing); provided, however, (A) if any Interest Period would end on a day
-------- -------
which is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that, with respect to any Eurodollar Loan, where
the next succeeding Business Day falls in the next succeeding calendar month,
then on the next preceding Business Day), (B) no Interest Period shall extend
beyond the Maturity Date and (C) in the case of Eurodollar Loans, where an
Interest Period begins on a day for which there is no numerically corresponding
day in the calendar month in which the Interest Period is to end, such Interest
Period shall, subject to clause (A) above, end on the last Business Day of such
calendar month.
"Investment" shall mean, as applied to any designated Person, any direct or
----------
indirect purchase or other acquisition by such designated Person for cash or
other property of (a) stock, debt or other securities of any other Person, or
any direct or indirect loan, advance, extension of credit or capital
contribution by such designated Person to any other Person or any Guaranty by
such designated Person with respect to the Debt of such other Person, including
all Debt of and accounts receivable from any such other Person which are not
current assets or did not arise from sales to such other Person in the ordinary
course of business, or (b) any interest in any kind of property or assets,
whether real, personal or mixed, tangible or intangible. In computing the
amount involved in any Investment, (i) undistributed earnings of, and interest
accrued in respect of Debt owing by, any such other Person accrued after the
date of such Investment shall not be included, (ii) there shall not be deducted
from the amounts invested in any such other Person any amounts received as
earnings (in the form of dividends, interest or otherwise) on such Investment or
as loans or advances from such other Person, and (iii) unrealized increases or
decreases in value, or write-ups, write-downs or write-offs, of Investments in
any such other Person shall be disregarded.
"Issuing Lender" shall mean, as to Existing Letters of Credit, those
--------------
Lenders identified as an Issuing Lender on Schedule II, and, as to Letters of
-----------
Credit issued hereunder, NationsBank and any other Lender as the Borrowers may
request and such Lender may agree, and their respective successors and assigns.
"Issuing Lender Fees" shall have the meaning assigned to such term in
-------------------
Section 2.06(b)(iii).
"JPFDI" means JP Foodservice Distributors, Inc., a Delaware corporation.
-----
16
<PAGE>
"Lenders" shall have the meaning assigned to such term in the heading
-------
hereof. The term "Lenders" shall also include within the meaning thereof any
Person which becomes a Lender in accordance with the terms of Section 2.01(e) or
Section 12.04(b).
"Letter of Credit" shall mean (i) any standby letter of credit or any
----------------
trade, documentary or merchandise letter of credit issued by the Issuing Lender
for the account of a Borrower in accordance with the terms of Section 2.03 and
(ii) each Existing Letter of Credit.
"Licenses" shall have the meaning assigned to such term in Section 9.14.
--------
"Lien" shall mean, as to any Person, any mortgage, lien (statutory or
----
other), pledge, assignment, hypothecation, adverse claim, charge, security
interest or other encumbrance in or on, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional
sale, trust receipt or other title retention agreement or Capital Lease with
respect to, any property or asset of such Person, or the signing or filing of a
financing statement which names such Person as debtor, or the signing of any
security agreement authorizing any other party as the secured party thereunder
to file any financing statement which names such Person as debtor. For purposes
of this Agreement, a Person shall be deemed to be the owner of any property
which it has placed in trust for the benefit of holders of Debt of such Person
which Debt is deemed to be extinguished under GAAP but for which such Person
remains legally liable, and such trust shall be deemed to be a Lien.
"Loan" or "Loans" shall mean the Revolving Loans (or any Revolving Loan
---- -----
bearing interest at the Base Rate or the Eurodollar Rate and referred to as a
Base Rate Loan or a Eurodollar Loan), the Swingline Loans and/or the Competitive
Loans, individually or collectively, as appropriate.
"LOC Committed Amount" shall have the meaning assigned to such term in
--------------------
Section 2.03(a).
"LOC Documents" shall mean, with respect to any Letter of Credit, such
-------------
Letter of Credit, any amendments thereto, any application therefor, and any
agreements pursuant to which the account party agrees to reimburse the issuing
bank on account of draws under such Letter of Credit.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
---------------
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit (including without limitation Existing Letters of Credit) then
outstanding, assuming compliance with all requirements for drawings referred to
in such Letters of Credit plus (ii) the aggregate amount of all drawings under
----
Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.
For purposes of clause (i) hereof, each trade Letter of Credit shall be deemed
to be outstanding from the date of issuance thereof until and including the date
on which such trade Letter of Credit is fully drawn.
17
<PAGE>
"Mandate Letter" shall mean the letter agreement dated August 15, 1997,
--------------
among the Borrowers, NationsBank and NationsBanc Montgomery Securities, Inc.
"Mandatory Borrowing" shall have the meaning assigned to such term in
-------------------
Section 2.02(b)(iii).
"Material Adverse Change"; "Material Adverse Effect"; "Materially Adverse"
----------------------- ----------------------- ------------------
in, on or to, as appropriate, any Person, shall mean a material adverse change
in such Person's Business or Condition, a material adverse effect on such
Person's Business or Condition or an event which is materially adverse to such
Person's Business or Condition; provided that, (a) any such term, when used
--------
without reference to any particular Person, shall mean such change in or effect
on or event adverse to, as the case may be, the Borrowers and their Restricted
Subsidiaries taken as a whole, and (b) any impairment in any material respect of
the ability of the Borrowers and their Restricted Subsidiaries taken as a whole
to pay any principal, interest or Fees in accordance with the terms hereof and
of the other Credit Documents, any material impairment of the ability of the
Borrowers and their Restricted Subsidiaries taken as a whole to perform the
other material obligations of such Persons under this Agreement and the other
Credit Documents, or any circumstance or occurrence which (except a default by
the Lenders, the Administrative Agent, the Co-Arrangers, the Syndication Agent
or the Documentation Agent) would impair the enforceability as against the
Borrowers or any Restricted Subsidiary of any material term of this Agreement or
any of the other Credit Documents, shall in any case be deemed to have resulted
in a material adverse change in, to have a material adverse effect on, and to be
materially adverse to, the Borrowers' Business or Condition.
"Maturity Date" shall mean December 23, 2002.
-------------
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
----------------
June 30, 1997, as amended as of September 3, 1997 and November 5, 1997, together
with all exhibits and schedules thereto, by and among the Company, Hudson
Acquisition Corp., a wholly owned subsidiary of the Company, and RSI.
"Merger Transaction" shall mean the transaction in which, among other
------------------
things, (i) RSI shall be merged with and into Hudson Acquisition Corp., a wholly
owned subsidiary of the Company, and (ii) each issued and outstanding share of
common stock of RSI, other than shares, if any, owned by RSI, the Company or
Hudson Acquisition Corp. shall be converted into the right to receive 0.775 of a
share of common stock of the Company, all upon the terms and conditions set
forth in the Merger Agreement.
"Merger Transaction Costs" shall mean costs associated with the Merger
------------------------
Transaction, which costs shall not be materially greater than the amounts
disclosed in the Registration Statement (approximately $107,000,000 pre-tax),
including, without limitation, the following costs: (i) legal, accounting,
financial advisory and other professional fees; (ii) employee severance and
change in control costs; (iii) costs of facility consolidations; (iv)
governmental filing fees and printing costs related to the Registration
Statement; and (v) the makewhole amounts payable in connection with payment of
the Notes; provided that such costs may exceed
18
<PAGE>
the amounts so disclosed so long as the payment or incurrence of such excess
costs does not have a Material Adverse Effect.
"Moody's" shall have the meaning assigned to such term in the definition of
-------
"Restricted Investment".
"Multiemployer Plan" shall mean a plan defined as such in Section 3(37) of
------------------
ERISA to which any Borrower Group Member is making or incurring an obligation to
make, or has made or incurred an obligation to make, contributions.
"Multiple Employer Plan" shall mean a Plan to which any Borrower Group
----------------------
Member, and at least one employer other than a Borrower Group Member, is making
or incurring an obligation to make contributions or has made or incurred an
obligation to make contributions.
"NationsBank" shall mean NationsBank, N.A., a national banking association.
-----------
"Net Income Available for Fixed Charges" shall mean, for any period, (a)
--------------------------------------
the net income (or deficit) of the Borrowers and their Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP after eliminating all
non-cash or nonrecurring items (whether cash or non-cash and whether or not
deemed extraordinary in accordance with GAAP) for such period, plus (b) the sum
----
of the following amounts, in each case to the extent deducted in arriving at the
amount determined in accordance with the foregoing subdivision (a): (i)
Interest Expense, (ii) provisions for taxes imposed on or measured by income or
excess profits, (iii) Operating Lease Rentals accrued (whether or not actually
paid), and (iv) provision for depreciation and amortization; provided, however,
-------- -------
that in determining the net income (or deficit) of the Borrowers and their
Restricted Subsidiaries pursuant to the foregoing subdivision (a) for any period
during which JPFDI shall have sold or otherwise disposed of the Everett
Facility, losses from such sale or other disposition shall be disregarded to the
extent the aggregate amount of all such losses (computed without regard to
Closing Date Intangibles attributable to such facility) does not exceed
$3,300,000 on an after tax basis.
"Net Receivables" shall mean, on any day, in respect of any Permitted
---------------
Receivables Financing, the outstanding balance of accounts receivable sold,
transferred, pledged or otherwise subject to Liens, in each case, to or in favor
of a Receivables Financier (as hereinafter defined) in connection with such
Permitted Receivables Financing, excluding any accounts receivable not included
in the calculation of the Receivables Financier's percentage interest in the
Transferred Assets (as hereinafter defined) (it being understood that only the
percentage interest shall be included in this calculation) or borrowing base
(such excluded accounts receivable may include, without limiting the foregoing
in any manner, any such accounts receivable (x) not meeting the eligibility
criteria under such Permitted Receivables Financing, (y) exceeding the
applicable concentration limits set forth for such Permitted Receivables
Financing, or (z) which are or become defaulted, delinquent, charged-off or
otherwise cease to be creditworthy as set forth in, and as determined in
accordance with, such Permitted Receivables Financing).
19
<PAGE>
"Net Sale Proceeds" shall mean, with respect to any sale of assets, an
-----------------
amount equal to the excess of
(i) the greater of (x) the aggregate gross sale price of the
assets sold in such sale and (y) the fair market value of such assets (as
determined by the Board of Directors at the time of such sale) over
(ii) the reasonable and customary costs and expenses incurred
by a Borrower or a Restricted Subsidiary in effecting such sale.
"Net Worth Minimum" shall mean, as of any date, the sum of (i) eighty-five
-----------------
percent (85%) of Consolidated Net Worth as of December 31, 1997 (after giving
effect to the consummation of the Merger Transaction and after giving effect to
all Merger Transaction Costs) plus (ii) on the last day of each fiscal quarter
----
to occur after the Closing Date an amount (but not less than zero) equal to 50%
of the Consolidated Net Income of the Borrowers and their Restricted
Subsidiaries for such fiscal quarter, such increases to be cumulative, plus
----
(iii) eighty percent (80%) of the effect (positive or negative) on Consolidated
Net Worth from acquisitions permitted hereunder.
"Note" shall mean any one of the 8.55% Senior Notes due 2004 issued by
----
JPFDI pursuant to the Note Purchase Agreements, as the same may be restated,
extended, renewed, amended, or otherwise modified and in effect from time to
time.
"Note Guaranties" shall mean those certain Guaranty Agreements dated as of
---------------
November 10, 1994, from each Subsidiary of JPFDI which as of the Closing Date
shall be a Restricted Subsidiary, substantially in the form of Exhibit B-1 to
each of the Note Purchase Agreements as originally executed and delivered,
providing among other things for the guaranty by each Restricted Subsidiary
party thereto of all amounts from time to time owing by JPFDI under the
respective Note Purchase Agreements, as such Guaranty Agreements may be amended
or otherwise modified from time to time (including by any joinder agreement in
the form of Exhibit B-2 to each of said Note Purchase Agreements effective to
constitute as a Guarantor under and within the meaning thereof any Subsidiary of
JPFDI which on or following the Closing Date shall be designated or redesignated
a Restricted Subsidiary and which shall be or concurrently become a Guarantor
under and within the meaning of the Guaranty Agreements in compliance with
Section 8.18).
"Note Purchase Agreement" shall mean any one of the Note Purchase
-----------------------
Agreements dated as of November 10, 1994, as amended as of November 10, 1994 and
as of May 29, 1996, by and between JPFDI and the holder of the Note, as the same
may be further restated, extended, renewed, amended or otherwise modified and in
effect from time to time.
"Notice of Borrowing" shall mean a written notice of borrowing in
-------------------
substantially the form of Schedule V, as required by Section 2.01(b).
----------
20
<PAGE>
"Notice of Extension/Conversion" shall mean a written notice of continuance
------------------------------
or conversion of one or more Loans in substantially the form of Schedule VI, as
-----------
required by Section 3.03.
"Officers' Certificate" shall mean a certificate executed on behalf of a
---------------------
Borrower by two of its executive officers, one of whom shall be its Chairman of
the Board of Directors (if an officer) or its Chief Executive Officer, or
President or one of its Senior Vice Presidents, and one of whom shall be its
Chief Financial Officer or Treasurer.
"Operating Cash Flow" shall mean, for any period, (a) the net income (or
-------------------
deficit) of the Borrowers and their Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP after eliminating all non-cash or
nonrecurring items (whether cash or non-cash and whether or not deemed
extraordinary in accordance with GAAP) for such period; plus (b) the sum of the
----
following amounts, in each case to the extent deducted in arriving at such
amount determined in accordance with the foregoing subdivision (a):
(i) Interest Expense,
(ii) provisions for taxes imposed on or measured by income or excess
profits, and
(iii) provisions for depreciation and amortization,
plus (c) the sum (without duplication) of the following items to the extent not
- ----
included in the amounts determined pursuant to subdivisions (a) and (b) above
(such sum being herein called the "Acquired Unit Adjustment"):
------------------------
(i) the net income (or net deficit) for such period of each Person
which shall have become a Restricted Subsidiary during such period (an
"Acquired Subsidiary") after eliminating all non-cash or nonrecurring items
--------------------
(whether cash or non-cash and whether or not deemed extraordinary in
accordance with GAAP),
(ii) the net income (or net deficit) derived during such period from
any operating assets acquired by the Borrowers or a Restricted Subsidiary
during such period ("Acquired Assets"), and
---------------
(iii) the sum (without duplication) of the following items to the
extent deducted in determining net income of any Acquired Subsidiary or
derived from any Acquired Assets for such period: (A) Interest Expense of
such Acquired Subsidiary or associated with such Acquired Assets, (B)
provisions for taxes imposed on or measured by income or excess profits of
such Acquired Subsidiary or associated with such Acquired Assets, and (C)
provisions for depreciation and amortization of such Acquired Subsidiary or
associated with such Acquired Assets;
21
<PAGE>
minus (d) the sum of the following items to the extent included in the amounts
- -----
determined pursuant to subdivisions (a), (b) and (c) above (such sum being
herein called the "Disposed Unit Adjustment"):
------------------------
(i) the net income (or net deficit) for such period of each Person
which shall have ceased to be a Restricted Subsidiary during such period (a
"Disposed Subsidiary") after eliminating all non-cash or nonrecurring items
-------------------
(whether cash or non-cash and whether or not deemed extraordinary in
accordance with GAAP),
(ii) the net income (or net deficit) derived during such period from
any assets which were sold or otherwise disposed of by the Borrowers or a
Restricted Subsidiary during such period ("Disposed Assets"), and
---------------
(iii) the sum (without duplication) of the following items to the
extent deducted in determining net income of any Disposed Subsidiary or
derived from any Disposed Assets for such period: (A) Interest Expense of
such Disposed Subsidiary or associated with such Disposed Assets, (B)
provisions for taxes imposed on or measured by income or excess profits of
such Disposed Subsidiary or associated with such Disposed Assets for such
period, and (C) provisions for depreciation and amortization of such
Disposed Subsidiary or associated with such Disposed Assets;
provided, however, that (1) for purposes of determining Operating Cash Flow for
- -------- -------
any period, the Acquired Unit Adjustment and the Disposed Unit Adjustment shall
be determined by the Borrowers in accordance with sound financial practice (and
on the basis, to the extent available, of appropriate financial statements and
tax returns for such period) and shall be set forth in a certificate of the
principal financial officer of each of the Borrowers accompanied by calculations
in reasonable detail showing the manner of determination thereof, which
certificate shall be furnished to the Administrative Agent and each of the
Lenders not later than the certificate required to be furnished by the Borrowers
in respect of such period pursuant to Section 6.01(c), and (2) no amount shall
in any event be includable in Operating Cash Flow pursuant to subdivision (c) of
this definition for any period in respect of any Acquired Unit Adjustment unless
the amount and calculation thereof, as set forth in the certificate for such
period required by the foregoing clause (1), shall be reasonably acceptable to
the Required Lenders; and provided further, however, that in determining the net
-------- ------- -------
income (or deficit) of the Borrowers and their Restricted Subsidiaries pursuant
to the foregoing subdivision (a) for any period during which JPFDI shall have
sold or otherwise disposed of the Everett Facility, losses from such sale or
other disposition shall be disregarded to the extent the aggregate amount of all
such losses (computed without regard to Closing Date Intangibles attributable to
such facility) does not exceed $3,300,000 on an after tax basis.
"Operating Lease" shall mean an operating lease of property in accordance
---------------
with GAAP (real, personal or mixed) having an original term (including terms of
renewal or extension at the option of the lessor or the lessee, whether or not
any such option has been exercised) of more than one year, other than (a) a
Capital Lease and (b) in the case of any Subsidiary, any such lease under which
a Borrower or a Restricted Subsidiary is the lessor.
22
<PAGE>
"Operating Lease Rentals" shall mean, as applied to the Borrowers and their
-----------------------
Restricted Subsidiaries for any period, the total amount (whether designated as
rentals or additional or supplemental rentals or otherwise) payable as lessee
under all Operating Leases during such period, including amounts so payable
during such period by reason of a lease termination or a surrender of property
but excluding amounts so payable on account of maintenance, ordinary repairs,
insurance, taxes, assessments and other charges which cover the cost of, or
reimburse the lessor for, costs related to the applicable Operating Lease or the
property subject thereto or to the use, holding or operation thereof.
"Order" shall mean any order, writ, injunction, decree, judgment, award,
-----
determination, direction or demand.
"Participation Interest" shall mean the extension of credit by a Lender by
----------------------
way of a purchase of a participation in any Swingline Loans as provided in
Section 2.02(b)(iii), in Letters of Credit or LOC Obligations as provided in
Section 2.03(c) or in any Loans as provided in Section 4.03.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Payments" shall mean any payments of, or any payments made in
------------------
connection with or related to, (i) Merger Transaction Costs, (ii) Fractional
Share Cash Payments, (iii) a Change of Control Offer, (iv) a Redemption of the
Indenture Notes or (v) the prepayment of the Notes.
"Permitted Receivables Financing" shall mean any transaction involving one
-------------------------------
or more sales, contributions or other conveyances by a Borrower and/or any
Restricted Subsidiary of any accounts receivable (together with certain related
property relating thereto and the right to collections thereon, being the
"Transferred Assets") to a Subsidiary (including a Subsidiary which is a
- -------------------
Restricted Subsidiary) or Affiliate of a Borrower (with respect to any such
transaction, the "Receivables Financing SPC"), which Receivables Financing SPC
-------------------------
then either (x) sells (as determined in accordance with GAAP) such Transferred
Assets (or undivided interests therein) to any Person that is not a Subsidiary
or Affiliate of a Borrower (with respect to any such transaction, the
"Receivables Financier"), (y) borrows from such Receivables Financier and
- ----------------------
secures such borrowings by a pledge of such Transferred Assets and/or (z)
otherwise finances its acquisition of such Transferred Assets and, in connection
therewith, conveys an interest in such Transferred Assets to the Receivables
Financier, provided that (i) such receivables financing shall not involve any
--------
recourse to a Borrower or any Restricted Subsidiary (other than the Receivables
Financing SPC) for any reason other than (A) repurchases of non-eligible
receivables, (B) indemnifications for losses (including any adjustments for
dilutions), other than credit losses related to the receivables transferred in
such financing, and (C) payment of costs, fees, expenses and indemnities
relating to such receivables financing, (ii) such receivables financing shall
not include any Guaranty by a Borrower or any Restricted Subsidiary, it being
understood that payment by a Borrower or any Restricted Subsidiary of any amount
of the type
23
<PAGE>
described in the immediately preceding clause (i) which is owing by it to the
Receivables Financing SPC shall not be deemed to be a Guaranty notwithstanding
that an identical amount may be owing by the Receivables Financing SPC to the
Receivables Financier, (iii) the Administrative Agent shall be reasonably
satisfied with the structure of and documentation for any such transaction and
the terms of such transaction, including any applicable discount at which
receivables are sold to the Receivables Financier and any termination events,
shall be (in the good faith understanding of the Administrative Agent)
consistent with those prevailing in the market for similar transactions
involving receivables and originators of similar credit quality and a
receivables pool of similar characteristics or shall otherwise be reasonably
acceptable to the Administrative Agent, and (iv) the documentation for such
transaction shall not be amended or modified, to permit the acquisition of
interests in the Transferred Assets by the Receivables Financier in excess of
the Permitted Receivables Financing Over-Collateralization Amount, to change or
modify any provision of any Subordinated Intercompany Revolving Note or any
provision of any agreement relating to the calculation of any amount due or to
become due in respect thereof, or in any other manner which, in the reasonable
judgment of the Administrative Agent, is materially inconsistent with the terms
and provisions hereof (and/or any other amendment which deals with the
requirements for a Permitted Receivables Financing) (other than, in each case,
for the requirement that any such amendment or modification (or any of the
relevant documents affected thereby) satisfy the requirements set forth in the
immediately preceding clause (iii)) without the prior written approval of the
Administrative Agent (which approval shall not be unreasonably withheld). Each
of the Pre-Existing Receivables Financings constitutes a Permitted Receivables
Financing.
"Permitted Receivables Financing Amount" shall mean at any time with
--------------------------------------
respect to any Permitted Receivables Financing, the aggregate balance of all
cash received by the Receivables Financing SPC from the Receivables Financier in
respect of purchase proceeds or principal under such financing minus the
aggregate amount of all payments received by the Receivables Financier and
applied to the repayments of such amounts; it being understood and agreed that
any amounts previously applied as aforesaid which are subsequently required to
be repaid, disgorged or otherwise returned by the Receivables Financier shall be
deemed to have never been received and applied by the Receivables Financier.
"Permitted Receivables Financing Over-Collateralization Amount" shall mean,
-------------------------------------------------------------
with respect to any Permitted Receivables Financing, the excess from time to
time of (x) the outstanding face amount of the Net Receivables subject to the
Receivables Financier's interest in connection with such financing (it being
understood that if such interest is a percentage interest only that percentage
of such Net Receivables shall be included in this calculation) over (y) the
Permitted Receivables Financing Amount of such Permitted Receivables Financing.
"Person" shall mean any individual, corporation, association, partnership,
------
joint venture, limited liability company, trust or estate, organization,
business, government or agency or political subdivision thereof, or any other
entity.
"Plan" shall mean any employee pension benefit plan (as defined in Section
----
3(2) of ERISA), other than a Multiemployer Plan, subject to Title IV of ERISA or
the minimum funding
24
<PAGE>
standards under Section 412 of the Code or Section 302 of ERISA and established,
maintained or contributed to at any time by any Borrower Group Member.
"Predominantly Owned Restricted Subsidiary" shall mean any Restricted
-----------------------------------------
Subsidiary at least 80% of all of the equity interests of each class of which
and at least 80% of the voting interests of which shall at the time be owned by
a Borrower either directly or through one or more other Predominantly Owned
Restricted Subsidiaries.
"Pre-Existing Receivables Financings" shall mean the transactions provided
-----------------------------------
for in the Receivables Purchase Agreement dated as of May 30, 1996 among JPFDI,
Illinois Fruit & Produce Corp., Sky Bros., Inc., JPFD Funding Company and JP
Foodservice, Inc. and the Transfer and Administration Agreement dated as of May
30, 1996 among Enterprise Funding Corporation, JPFD Funding Company, JPFDI,
NationsBank and certain other financial institution investors, and the
transactions contemplated in the Rykoff-Sexton Receivables Master Trust Pooling
Agreement dated as of November 15, 1996 (the "Rykoff-Sexton Pooling Agreement")
-------------------------------
among RF Funding, Inc., US Foodservice, Inc. and The Chase Manhattan Bank, as
supplemented by the Series 1996-1 Supplement thereto dated as of November 15,
1996, including all fundings, financings, facilities and purchases of accounts
receivable outstanding under such agreements as of the Closing Date and any
subsequent increases or extensions of such fundings, financings, facilities or
purchases (including, in the case of the Rykoff-Sexton Pooling Agreement, the
issuance of additional certificates).
"Prime Rate" shall have the meaning assigned to such term within the
----------
definition of "Base Rate".
"Priority Debt Amount" shall mean, as of any date, that portion of Debt in
--------------------
an amount equal to the sum (without duplication) of (a) all Attributable Debt of
the Borrowers and their Restricted Subsidiaries as of such date, plus (b) the
----
aggregate principal amount outstanding on such date of all Debt of the Borrowers
and their Restricted Subsidiaries secured by Liens (other than Liens permitted
by Section 8.03(a) through (g)), plus (c) the aggregate principal amount
----
outstanding on such date of all Debt of Restricted Subsidiaries (exclusive of
(x) Debt of any Restricted Subsidiary pursuant to the Guaranty Agreement and the
Guaranty Agreement under the 364-Day Credit Agreement, (y) to the extent not
exceeding in aggregate principal amount for all Restricted Subsidiaries the
aggregate original principal amount of the Indenture Notes, Debt of any
Restricted Subsidiary pursuant to the Indenture Guarantees, and (z) to the
extent not exceeding in aggregate principal amount for all Restricted
Subsidiaries the aggregate original principal amount of the Notes, Debt of any
Restricted Subsidiary pursuant to the Note Guaranties).
"PYA" shall mean PYA/Monarch, Inc., a Delaware corporation.
---
"PYA's Note" shall mean that certain promissory note of PYA, dated March
----------
10, 1989, in the original principal amount of $110,000,000, and payable to
JPFDI, which bears interest at rates between 10.35% and 10.8% per annum, as such
note shall be in effect on the Closing Date.
25
<PAGE>
"Quoted Rate" shall mean, with respect to any Quoted Rate Swingline Loan,
-----------
the fixed percentage rate per annum offered by the Swingline Lender and accepted
by a Borrower with respect to such Swingline Loan as provided in accordance with
the provisions of Section 2.02.
"Quoted Rate Swingline Loan" shall mean a Swingline Loan bearing interest
--------------------------
at a Quoted Rate.
"Receivables Financier" shall have the meaning assigned to such term in the
---------------------
definition of "Permitted Receivables Financing" set forth in this Section 1.01.
"Receivables Financing SPC" shall have the meaning assigned to such term in
-------------------------
the definition of "Permitted Receivables Financing" set forth in this Section
1.01.
"Redemption of the Indenture Notes" shall mean (i) a redemption of the
---------------------------------
Indenture Notes, in whole or in part, by RSI pursuant to Article III of the
Indenture or (ii) a purchase of the Indenture Notes by the Company, a Borrower
or any Restricted Subsidiary pursuant to a tender offer or one or more privately
negotiated transactions.
"Registration Statement" shall mean the Company's Registration Statement on
----------------------
Form S-4 (File No. 333-32711) declared effected by the Commission on November
24, 1997.
"Reportable Event" shall mean any of the events set forth in Section
----------------
4043(b) of ERISA or the regulations thereunder.
"Required Financial Information" shall mean, with respect to the applicable
------------------------------
Determination Date, (i) the financial statements of each of the Borrowers
required to be delivered pursuant to Section 6.01 for the fiscal period or
quarter ending as of such Determination Date, and (ii) the Officers' Certificate
required by Section 6.01 to be delivered with the financial statements described
in clause (i) above.
"Required Lenders" shall mean, at any time, Lenders which are then in
----------------
compliance with their obligations hereunder (as reasonably determined by the
Administrative Agent) and holding in the aggregate at least 51% of (i) the
Commitments to make Revolving Loans or (ii) if the Commitments have been
terminated, the outstanding Loans and Participation Interests.
"Responsible Officer" shall mean any officer of a Borrower who shall be
-------------------
permitted to sign an Officers' Certificate (as provided in the definition of
that term set forth in this Section) and any other officer of such Borrower who
shall at any time hereafter perform substantially the same duties as are
performed on the date hereof by any such officer permitted to sign an Officers'
Certificate.
"Restricted Investments" shall mean all Investments other than:
----------------------
(a) Investments in (i) readily marketable direct obligations of the
United States of America or of any agency or instrumentality thereof the
obligations of which are
26
<PAGE>
backed by the full faith and credit of the United States of America or
readily marketable obligations unconditionally guaranteed by the United
States of America or by any such agency or instrumentality, in each case
maturing within three years from the date of acquisition thereof, (ii) U.S.
dollar denominated certificates of deposit, time deposits or bankers'
acceptances maturing within 270 days from the date of acquisition thereof
of any commercial bank (x) which is organized under the laws of and located
in the United States of America or a State thereof ("U.S. Bank") or Canada,
---------
Japan or a member country of the European Economic Community ("Foreign
-------
Bank"), (y) which has combined capital, surplus and undivided profits of at
----
least, in the case of a U.S. Bank, $100,000,000 and, in the case of a
Foreign Bank, $500,000,000, and (z) the long-term debt obligations of which
are rated at least A3 by Moody's Investors Service Inc. ("Moody's") or A-
-------
by Standard & Poor's Rating Group ("S&P"), (iii) money-market preferred
---
stock or auction rate preferred stock, in each case maturing or redeemable
at the option of the holder thereof no more than one year after the date of
acquisition thereof and having a rating of at least A-2 by Moody's or A by
S&P; (iv) obligations of any state of the United States or any political
subdivision thereof, the interest with respect to which is exempt from
federal income taxation under Section 103 of the Code, having a long term
rating of at least Aa-3 or AA-by Moody's or S&P, respectively, and maturing
within three years from the date of acquisition thereof; (v) open market
commercial paper of United States corporations maturing not later than 270
days after the issuance thereof and having a rating of at least P-2 by
Moody's or A-2 by S&P, and (vi) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are
administered by reputable financial institutions having capital of at least
$100,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a)(i) through (a)(v);
(b) Investments in a Borrower or Subsidiaries of the Borrowers
existing on the date hereof, and other Investments existing on the date
hereof and described in Schedule VII;
------------
(c) Investments in any Restricted Subsidiary or in any Person which
simultaneously therewith becomes a Restricted Subsidiary;
(d) Investments consisting of stock, obligations, securities or
other property received by the Borrowers or a Restricted Subsidiary in
settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors;
(e) Investments consisting of Guaranties by the Borrowers and their
Restricted Subsidiaries of the obligations of other Persons so long as at
the time of and immediately after giving effect to each such Investment,
the Borrowers are in compliance with Section 8.01(c) and Section 8.02;
27
<PAGE>
(f) Investments by the Borrowers and their Restricted Subsidiaries
in property to be used in the ordinary course of their business as
permitted to be conducted pursuant to Section 8.09; and
(g) Investments in addition to those described in the foregoing
subdivisions (a) through (f) of this definition, provided that, the amount
--------
of all such additional Investments shall not exceed $10,000,000 in the
aggregate.
"Restricted Payment" shall mean any payment or distribution or the
------------------
incurrence of any liability to make any payment or distribution, in cash,
property or other assets (other than shares of common stock of a Borrower) upon
or in respect of any share of any class of capital stock of the Borrowers or any
warrants, rights or options evidencing a right to purchase or acquire any
securities of a Borrower, including, without limiting the generality of the
foregoing, payments or distributions as dividends and payments or distributions
for the purpose of purchasing, acquiring, retiring or redeeming any such shares
of stock (or any warrants, rights or options to purchase or acquire any such
securities) or the making of any other distribution in respect of any such
shares of stock (or any warrants, rights or options evidencing a right to
purchase or acquire any such securities).
"Restricted Subsidiary" shall mean each Subsidiary existing on the date
---------------------
hereof which is not designated as an Unrestricted Subsidiary in Schedule VIII,
-------------
each other Subsidiary which is not hereafter designated by the Board of
Directors as an Unrestricted Subsidiary, and each Unrestricted Subsidiary which
is hereafter designated by the Board of Directors as a Restricted Subsidiary;
provided, however, that (a) any Restricted Subsidiary may be redesignated an
- -------- -------
Unrestricted Subsidiary as and to the extent provided in the definition of
"Unrestricted Subsidiary" set forth in this Section 1.01; (b) any Subsidiary
which shall be an Unrestricted Subsidiary at the commencement of any period of
30 consecutive months and which shall have been redesignated a Restricted
Subsidiary during such period may, following such redesignation, be further
redesignated an Unrestricted Subsidiary during such period but may not,
following such further redesignation, again be redesignated a Restricted
Subsidiary during such period; and (c) notwithstanding any provision hereof to
the contrary, no Person which hereafter becomes a Subsidiary may be designated a
Restricted Subsidiary and no Subsidiary which is designated an Unrestricted
Subsidiary may be redesignated a Restricted Subsidiary unless:
(i) immediately after giving effect to such designation or
redesignation, no Default or Event of Default shall have occurred and be
continuing,
(ii) in the case of any such redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, no property or assets of such
Subsidiary shall at the time of such redesignation be subject to any Liens
which would not have been permitted to be created by such Subsidiary
pursuant to Section 8.03, and
(iii) such Subsidiary shall have become, in compliance with
Section 8.18, a Guarantor under and within the meaning of the Guaranty
Agreement.
28
<PAGE>
"RSI" shall mean, prior to the effective time of the Merger Transaction,
---
Rykoff-Sexton, Inc., a Delaware corporation incorporated in 1961, and from and
after the effective time of the Merger Transaction, the successor to such
corporation in the Merger Transaction whose corporate name shall be changed to
Rykoff-Sexton, Inc. in connection with consummation of the Merger Transaction.
"Revolving Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.01(a).
"Revolving Loans" shall have the meaning assigned to such term in Section
---------------
2.01(a).
"S&P" shall have the meaning assigned to such term in the definition of
---
"Restricted Investment".
"Sale Leaseback" shall mean any transaction or arrangement or series of
--------------
transactions or arrangements pursuant to which the Borrowers or any Restricted
Subsidiary shall become obligated as lessee under any lease of property, whether
real, personal or mixed (except for (i) leases in connection with Tax Reduction
Transactions, (ii) leases for a term of not more than three years, (iii) any
lease by a Restricted Subsidiary under which a Borrower or a Predominantly Owned
Restricted Subsidiary is lessor and (iv) leases of property executed prior to,
at the time of or within 180 days after the later to occur of the acquisition or
the commencement of commercial operation of such property) which property (a) is
now owned or hereafter acquired by a Borrower or a Restricted Subsidiary (or
which a Borrower or any Restricted Subsidiary intends to use for substantially
the same purpose as any other property now owned or hereafter acquired by a
Borrower or a Restricted Subsidiary) and (b) has been or is to be sold or
transferred to any other Person.
"Sara Lee" shall mean Sara Lee Corporation, a Maryland corporation.
--------
"Sara Lee Note" shall mean that certain promissory note of JPFDI, dated
-------------
August 19, 1989, issued in the original principal amount of $112,000,000 and
payable to PYA, which bears interest at the rate of 11% per annum, as such note
shall be in effect on the Closing Date.
"Sara Lee Offset Agreement" shall mean the Amended and Restated Note Offset
-------------------------
Agreement, dated as of July 3, 1989, by and between PYA and JPFDI, providing,
among other things, for the settlement of maturities of principal and accrued
interest under the Sara Lee Note, on the one hand, and under PYA's Note, on the
other hand, by offsetting the respective amounts due thereunder.
"Securities Act" shall mean the Securities Act of 1933, or any similar
--------------
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Standby Letter of Credit Fee" shall have the meaning assigned to such term
----------------------------
in Section 2.06(b)(i).
29
<PAGE>
"Subordinated Debt" shall mean any Debt of the Borrowers or any Restricted
-----------------
Subsidiary which is subordinated in right of payment to any other Debt of such
Person.
"Subordinated Intercompany Revolving Note" shall mean, with respect to any
----------------------------------------
Permitted Receivables Financing, any note issued by a Receivables Financing SPC
in favor of the Borrowers or any Restricted Subsidiary in connection therewith.
"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership or other entity of which more than 50% of the Voting Stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity is at the time, directly or indirectly, owned by, or the management is
otherwise controlled by, such Person and/or one or more of its other
Subsidiaries. Unless otherwise specified, any reference to a Subsidiary is
intended as a reference to a Subsidiary of a Borrower.
"Swingline Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.02(a).
"Swingline Lender" shall mean NationsBank, or, if NationsBank shall no
----------------
longer be the Administrative Agent, such Lender which shall become the
Administrative Agent hereunder in accordance with the provisions of Section
11.11.
"Swingline Loan" shall have the meaning assigned to such term in Section
--------------
2.02(a).
"Syndication Agent" means The Chase Manhattan Bank, as identified in the
-----------------
heading hereto.
"Tax Reduction Transaction" shall mean any transaction in which one or more
-------------------------
Borrowers and Restricted Subsidiaries convey real and/or personal property
assets to a governmental authority, or an agency or instrumentality thereof, in
exchange for nominal consideration and a reduction in the real and/or personal
property taxes that are payable by the applicable Borrowers and Restricted
Subsidiaries with respect to the assets so conveyed, provided that the
applicable Borrowers and Restricted Subsidiaries shall have the right to
reacquire such assets for nominal consideration, and "Tax Reduction
Transactions" shall mean all such transactions.
"Termination Event" shall mean (a) with respect to any Plan, the occurrence
-----------------
of a Reportable Event or an event described in Section 4062(e) of ERISA, or (b)
the withdrawal of any Borrower Group Member from a Multiple Employer Plan during
a plan year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan, or
(c) the distribution of a notice of intent to terminate a Plan or Multiemployer
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or (d) the
institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC
under Section 4042 of ERISA, or (e) any other event or condition which would
constitute grounds
30
<PAGE>
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer Plan or (f) the complete or
partial withdrawal of any Borrower Group Member from a Multiemployer Plan.
"364-Day Credit Agreement" shall mean that 364-Day Credit Agreement dated
------------------------
as of the date hereof, as amended and modified from time to time, among the
Borrowers, the Lenders identified therein and NationsBank, as Administrative
Agent.
"Total Debt" shall mean, as of any date, the aggregate amount of all Debt
----------
of the Borrowers and their Restricted Subsidiaries outstanding on such date
(including, without limitation, Debt evidenced by the Notes), determined on a
consolidated basis.
"Total Debt Ratio" shall mean, for the Borrowers and their Restricted
----------------
Subsidiaries as of any date, the number obtained by dividing (a) Total Debt as
of such date by (b) Operating Cash Flow for the period ("Cash Flow Period") of
----------------
four consecutive fiscal quarters ended on such date or (if such date shall not
be a Determination Date) most recently prior to such date.
"Trade Letter of Credit Fee" shall have the meaning assigned to such term
--------------------------
in Section 2.06(b)(ii).
"Transferred Assets" shall have the meaning assigned to such term in the
------------------
definition of "Permitted Receivables Financing" set forth in this Section 1.01.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
--------------------------
which the present value of the accrued benefits under such Plan (based on those
assumptions used to fund such Plan) as of the close of its most recent plan year
exceeds the then current value of the assets of such Plan allocable to such
benefits.
"Unrestricted Subsidiary" shall mean each Subsidiary designated as an
-----------------------
Unrestricted Subsidiary in Schedule VIII and each other Subsidiary which is
-------------
hereafter designated by the Board of Directors as an Unrestricted Subsidiary;
provided, however, that (a) any Unrestricted Subsidiary may be redesignated a
- -------- -------
Restricted Subsidiary as and to the extent provided in the definition of
"Restricted Subsidiary" set forth in this Section 1.01; (b) any Subsidiary which
shall be a Restricted Subsidiary at the commencement of any period of 30
consecutive months and which shall have been redesignated an Unrestricted
Subsidiary during such period may, following such redesignation, be further
redesignated a Restricted Subsidiary during such period but may not, following
such further redesignation, again be redesignated an Unrestricted Subsidiary
during such period; and (c) notwithstanding any provision hereof to the
contrary, no Subsidiary which is a Restricted Subsidiary may be redesignated an
Unrestricted Subsidiary unless
(i) immediately after giving effect to such redesignation, no Default
or Event of Default shall have occurred and be continuing, and
31
<PAGE>
(ii) such Subsidiary does not own (directly or through its
Subsidiaries) any shares of stock or other securities of (or warrants,
rights or options to acquire stock or other securities of) any Restricted
Subsidiary or hold any Debt of the Borrowers or any Restricted Subsidiary
and, at the time of such redesignation, all Debt and shares of stock of
such Subsidiary which are owned by the Borrowers and their Restricted
Subsidiaries could be sold in compliance with Section 8.06 (in which case,
such redesignation shall be deemed a disposition of assets for purposes of
Section 8.07).
Any Subsidiary of any Person which shall at any time be an Unrestricted
Subsidiary shall itself be an Unrestricted Subsidiary for so long as such Person
shall remain an Unrestricted Subsidiary (and thereafter for so long as such
Subsidiary shall not have been redesignated as a Restricted Subsidiary in
compliance with the definition herein of that term).
"U.S. Bank" shall have the meaning assigned to such term in the definition
---------
of "Restricted Investment".
"Voting Stock" shall mean capital stock of a corporation the holders of
------------
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or persons performing similar functions) of
such corporation.
"Weighted Average Life to Maturity" shall mean, as applied to any Debt at
---------------------------------
any date, the number of years (or portions of years) obtained by dividing (a)
the then outstanding principal amount of such Debt into (b) the total of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the date on which such payment is to be made.
"Wholly Owned Restricted Subsidiary" shall mean any Restricted Subsidiary
----------------------------------
100% of all of the equity interests (except directors' qualifying shares) and
voting interests of which shall at the time be owned by a Borrower either
directly or through one or more other Wholly Owned Subsidiaries.
SECTION 1.02. Accounting Terms, Etc.
----------------------
Except as specifically provided herein, all accounting terms used herein
which are not expressly defined in this Agreement have the meanings given to
them in accordance with GAAP and all computations made pursuant to this
Agreement shall be made in accordance with GAAP. All balance sheets and other
financial statements delivered pursuant to Section 6.01 shall be prepared in
accordance with GAAP. If any changes in accounting principles from those used
in the preparation of the most recent financial statements referred to in
Section 6.01 are hereafter required or permitted by the rules, regulations,
pronouncements and opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto) and
are adopted by the Borrowers with the agreement of their respective independent
certified public accountants and such changes result or could result (for any
present
32
<PAGE>
or future period) in a change in the method of calculation of any of the
financial covenants, standards or terms in or relating to Article VIII, the
parties hereto agree to enter into discussions with a view to amending such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the financial condition of the Borrowers and their
Restricted Subsidiaries shall be the same after such changes as if such changes
had not been made, provided that, no change in GAAP that would affect or could
--------
affect (for any present or future period) the method of calculation of any of
said financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Borrowers and the Required Lenders, to so reflect such change in GAAP.
SECTION 1.03. Terms Generally.
---------------
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references herein to Articles, Sections
and Schedules shall be deemed references to Articles and Sections of, and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP.
SECTION 1.04. Directly or Indirectly.
----------------------
Where any provision of this Agreement refers to actions to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether the action in question is taken directly or indirectly by
such Person.
ARTICLE II.
THE LOANS
SECTION 2.01. Revolving Loans.
---------------
(a) Revolving Commitment. Subject to and upon the terms and conditions and
--------------------
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, at any time and from time to time from the
Closing Date until the Maturity Date, to make revolving credit loans (each a
"Revolving Loan" and, collectively, "Revolving Loans") to the Borrowers for the
-------------- ---------------
purposes set forth in Section 9.13; provided, however, (i) with regard to each
-------- -------
Lender individually, such Lender's pro rata share of outstanding Revolving Loans
shall not exceed such Lender's Commitment Percentage of the Revolving Committed
Amount, (ii) with regard to the Lenders collectively, the aggregate amount of
Revolving Loans outstanding shall not exceed FIVE HUNDRED FIFTY MILLION DOLLARS
($550,000,000), as such maximum amount may be reduced from time to time as
provided in Sections 2.05 and 3.02, or as such maximum amount may be increased
from time to time as provided in Section 2.01(e) (such
33
<PAGE>
amount, as so reduced or increased from time to time, the "Revolving Committed
-------------------
Amount"), and (iii) in addition to the limitations set forth in the preceding
- ------
subparagraphs (i) and (ii), in no event shall the sum of Revolving Loans
outstanding plus Swingline Loans outstanding plus the LOC Obligations
outstanding plus Competitive Loans outstanding exceed the Revolving Committed
Amount. Revolving Loans hereunder may consist of Base Rate Loans or Eurodollar
Loans (or a combination thereof) as either Borrower may request, and may be
repaid and reborrowed in accordance with the provisions hereof.
(b) Advances.
--------
(i) Notices. Whenever a Borrower desires a Revolving Loan advance
-------
hereunder, it shall give an appropriate Notice of Borrowing to the
Administrative Agent by hand delivery, telex or telecopy not later than
1:00 P.M. (Charlotte, North Carolina time) on the Business Day of the
requested advance in the case of Base Rate Loans, and on the third Business
Day prior to the requested advance in the case of Eurodollar Loans. Each
such Notice of Borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested advance (which
shall be a Business Day), (C) the aggregate principal amount of the
Revolving Loan requested, and (D) whether the Revolving Loan requested
shall consist of Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Periods with
respect thereto. If a Borrower shall fail to specify in any such Notice of
Borrowing (i) an applicable Interest Period in the case of a Eurodollar
Loan, then such notice shall be deemed to be a request for an Interest
Period of one month, or (ii) the type of Revolving Loan requested, then
such notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Administrative Agent shall as promptly as practicable give each Lender
notice of each requested Revolving Loan advance, of such Lender's pro rata
share thereof and of the other matters covered in the applicable Notice of
Borrowing.
(ii) Minimum Amounts. Each Revolving Loan shall be in an aggregate
---------------
principal amount that is not less than the lesser of $1,000,000 or the
remaining amount available to be borrowed with respect to the Revolving
Loans in accordance with the terms of Section 2.01(a). Any Revolving Loan
requested in excess of $1,000,000 shall be in an integral multiple of
$1,000,000, or the remaining amount available to be borrowed with respect
to the Revolving Loans.
(iii) Funding of Advances. Each Lender will make its pro rata
-------------------
share of each Revolving Loan available to the Administrative Agent by 3:00
P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing by deposit in dollars of immediately
available funds at the offices of the Administrative Agent in Charlotte,
North Carolina, or at such other address as the Administrative Agent may
designate in writing, and the Administrative Agent shall, by 4:00 P.M.
(Charlotte, North Carolina time) on the same day, credit the amount so
received to the general deposit account of the Borrowers with the
Administrative Agent. All Revolving Loans shall be made by the Lenders pro
rata on the basis of each Lender's Commitment Percentage. No Lender shall
be responsible for the failure or delay by any other Lender in its
obligation
34
<PAGE>
to make Revolving Loans hereunder; provided, however, that the failure of
-------- -------
any Lender to fulfill its Commitment hereunder shall not relieve any other
Lender of its Commitment hereunder. Unless the Administrative Agent shall
have been notified by any Lender prior to the date of any Revolving Loan
advance that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loan advance to be made
on such date, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on the date of such
Revolving Loan advance, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion without any obligation to do so)
make available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrowers and
the Borrowers shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from such Lender or the Borrowers, as the case may be, interest on
such corresponding amount in respect of each day from the date, with
respect to the Borrowers, such corresponding amount was made available by
the Administrative Agent to the Borrowers and, with respect to such Lender,
demand for payment from such Lender was made by the Administrative Agent,
to the date such corresponding amount is recovered by the Administrative
Agent, at a per annum rate equal to, with respect to the Borrowers, the
then applicable rate calculated in accordance with Section 2.01(d) and,
with respect to such Lender, the Federal Funds Effective Rate.
(c) Repayment. The Borrowers hereby promise to pay to the Lenders the
---------
principal amount of all Revolving Loans outstanding hereunder on the Maturity
Date.
(d) Interest. (i) Interest Rates. Subject to the provisions of Section
-------- --------------
3.01, Revolving Loans shall bear interest as follows:
(A) Base Rate Loans. During such periods as Revolving Loans shall
---------------
consist of Base Rate Loans, at a per annum rate (computed on the basis of
the actual number of days elapsed over a year of 360 days for each
applicable day on which the Base Rate shall be determined on the basis of
the Federal Funds Effective Rate and over a year of 365/66 days for each
applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate) equal to the Base Rate in effect from time to time.
(B) Eurodollar Loans. During such periods as Revolving Loans shall
----------------
consist of Eurodollar Loans, at a per annum rate (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the sum
of the Eurodollar Rate for the Interest Period in effect for such
Eurodollar Loan plus the Applicable Margin in effect from time to time.
----
35
<PAGE>
(ii) Payment of Interest. (A) The Borrowers hereby promise to pay to
-------------------
the Lenders on each applicable Interest Payment Date (or at such other
times as may be specified herein) accrued interest on the Revolving Loans.
(B) In addition to amounts payable with respect to accrued interest
on Eurodollar Loans pursuant to Section 2.01(d)(i)(B), the Borrowers hereby
promise to pay to each Lender which is subject to a reserve requirement in
respect of Eurocurrency Liabilities and which has notified the
Administrative Agent and the Borrowers as provided below, on each date on
which interest is payable on any Eurodollar Loan pursuant to such Section
2.01(d)(i)(B), additional interest on the Eurodollar Loans of such Lender
at a rate per annum equal at all times during each Interest Period of such
Eurodollar Loan to the remainder obtained by subtracting (1) the Eurodollar
Rate for the Interest Period for such Eurodollar Loan from (2) the rate
obtained by dividing the Eurodollar Rate for the Interest Period for such
Eurodollar Loan by a percentage equal to 1.00 minus the Eurodollar Rate
Reserve Percentage (expressed as a decimal) actually incurred by such
Lender for the Interest Period for such Eurodollar Loan as specified in a
certificate signed by a duly authorized officer of such Lender delivered to
the Administrative Agent and the Borrowers setting forth reasonable details
of such Lender's computation. Each determination by a Lender under this
Section 2.01(d)(ii)(B) shall be rebuttably presumptive evidence thereof
absent manifest error.
(e) Increase in Revolving Commitments. Subject to the terms and conditions
---------------------------------
set forth herein, the Borrowers shall have the right to request, at any time and
from time to time from the Closing Date until the Maturity Date, to increase the
Revolving Committed Amount by an amount up to $200,000,000 in the aggregate;
provided that (i) any such increase shall be in a minimum principal amount of
- --------
$25,000,000 and integral multiples of $10,000,000 in excess thereof (or the
remaining amount, if less), (ii) Schedule I shall be amended to reflect the
----------
revised commitment percentages and commitment amounts of the Lenders, (iii) if
any Revolving Loans are outstanding at the time of any such increase, the
Borrowers shall make such payments and adjustments on the Revolving Loans
(including payment of any break-funding amount owing under Section 3.07) as
necessary to give effect to the revised commitment percentages and outstandings
of the Lenders, and (iv) the conditions to Extensions of Credit in Sections
5.02(b), (c) and (d) shall be true and correct. An increase in the Revolving
Committed Amount hereunder shall be subject to satisfaction of the following:
(A) in the case of any such request for an increase in the Revolving Committed
Amount, the amount of such increase shall be offered first to the existing
Lenders, and in the event the additional commitments which existing Lenders are,
in their sole discretion, willing to take shall exceed the amount requested by
the Borrowers, then the amount of such increase shall be apportioned among such
existing Lenders in proportion to the commitments of such existing Lenders
willing to take additional commitments, and (B) in the case of any such request
for an increase in the Revolving Committed Amount, if the amount of the
additional commitments requested by the Borrowers shall exceed the additional
commitments which the existing Lenders are willing to take, then the Borrowers
may invite other banks and financial institutions reasonably acceptable to the
Administrative Agent to join this Agreement as Lenders hereunder for the portion
of commitments not taken by existing Lenders, provided that each such other bank
and financial institution shall constitute an "Eligible Assignee" and in any
36
<PAGE>
such case such other banks and financial institutions shall enter into such
joinder agreements to give effect thereto as the Administrative Agent and the
Borrowers may reasonably request.
SECTION 2.02. Swingline Loan Subfacility.
--------------------------
(a) Swingline Commitment. Subject to and upon the terms and conditions and
--------------------
relying upon the representations and warranties herein set forth, the Swingline
Lender, in its individual capacity, agrees to make certain revolving credit
loans to the Borrowers (each a "Swingline Loan" and, collectively, the
--------------
"Swingline Loans") at any time and from time to time from the Closing Date until
---------------
the Maturity Date for the purposes hereinafter set forth; provided, however, (i)
-------- -------
the aggregate amount of Swingline Loans outstanding at any time shall not exceed
FIFTY MILLION DOLLARS ($50,000,000) (the "Swingline Committed Amount"), and (ii)
--------------------------
in no event shall the sum of Revolving Loans outstanding plus Swingline Loans
----
outstanding plus LOC Obligations outstanding plus Competitive Loans outstanding
---- ----
exceed the Revolving Committed Amount. Swingline Loans hereunder shall be made
as Base Rate Loans or Quoted Rate Swingline Loans as the Borrowers may request
in accordance with the provisions of this Section 2.02, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
-----------------------
(i) Notices; Disbursement. Whenever a Borrower desires a Swingline
---------------------
Loan advance hereunder it shall give written notice (or telephone notice
promptly confirmed in writing) to the Swingline Lender not later than 1:00
P.M. (Charlotte, North Carolina time) on the Business Day of the requested
Swingline Loan advance. Each such notice shall be irrevocable and shall
specify (A) that a Swingline Loan advance is requested, (B) the date of the
requested Swingline Loan advance (which shall be a Business Day) and (C)
the principal amount of the Swingline Loan advance requested. Each
Swingline Loan shall be made as a Base Rate Loan or a Quoted Rate Swingline
Loan and shall have such maturity date as the Swingline Lender and such
Borrower shall agree by telephone, promptly confirmed in writing, upon
receipt by the Swingline Lender of any such notice from such Borrower. The
Swingline Lender shall credit the amount representing the Swingline Loan
advance to the general deposit account of the Borrowers by 3:00 P.M.
(Charlotte, North Carolina time) on the Business Day of the requested
borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
---------------
minimum principal amount of $500,000 and in integral multiples of $100,000
in excess thereof.
(iii) Repayment of Swingline Loans. The Borrowers hereby promise to
----------------------------
pay to the Swingline Lender the principal amount of each Swingline Loan on
the earlier of (A) the maturity date agreed to by the Swingline Lender and
the applicable Borrower with respect to such Loan (which maturity date
shall not be a date more than 7 Business Days from the date of advance
thereof) or (B) the Maturity Date. The Swingline Lender may, at any time,
in its sole discretion, by written notice to the Borrowers and the Lenders,
demand repayment of its Swingline Loans by way of a Revolving Loan advance
(each
37
<PAGE>
such Revolving Loan advance made for the purpose of repaying any Swingline
Loans as provided herein being hereinafter referred to as a "Mandatory
---------
Borrowing"), in which case such Borrower shall be deemed to have requested
---------
a Revolving Loan advance comprised solely of Base Rate Loans in the amount
of such Swingline Loans; provided, however, that any such demand shall be
-------- -------
deemed to have been given one Business Day prior to the Maturity Date and
on the date of the occurrence of any Event of Default described in Section
10.01(g) or (h) and upon acceleration of the indebtedness hereunder and the
exercise of remedies in accordance with the provisions of Section 10.02.
Each Lender hereby irrevocably agrees to make its pro rata share of each
Revolving Loan constituting a Mandatory Borrowing in the amount, in the
manner and on the date specified in the preceding sentence notwithstanding
---------------
(I) the amount of Mandatory Borrowing may not comply with the minimum
amount for advances of Revolving Loans otherwise required hereunder, (II)
whether any conditions specified in Section 5.02 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure of any
such request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such Mandatory
Borrowing is a date on which Revolving Loans are otherwise permitted to be
made hereunder or (VI) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such Mandatory Borrowing. In
the event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the U.S. Bankruptcy Code with
respect to a Borrower), then each Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrowers on
or after such date and prior to such purchase) from the Swingline Lender
such participations in the outstanding Swingline Loans as shall be
necessary to cause each such Lender to share in such Swingline Loans
ratably based upon its Commitment Percentage of the Revolving Committed
Amount (determined before giving effect to any termination of the
Commitments pursuant to Section 10.02), provided that (A) all interest
--------
payable on the Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective participation is purchased
and (B) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay
to the Swingline Lender interest on the principal amount of participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at a per annum rate (computed on the basis
of the actual number of days elapsed over a year of 360 days) equal to the
Federal Funds Effective Rate.
(c) Interest on Swingline Loans. (i) Subject to the provisions of Section
---------------------------
3.01, each Swingline Loan shall bear interest as follows:
(A) Base Rate Loans. If such Swingline Loan is a Base Rate Loan, at a
---------------
per annum rate (computed on the basis of the actual number of days elapsed
over a year of 360 days for each applicable day on which the Base Rate
shall be determined on the basis of the Federal Funds Effective Rate and
over a year of 365/66 days for each applicable
38
<PAGE>
day on which the Base Rate shall be determined on the basis of the Prime
Rate) equal to the Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline Loan is a Quoted
---------------------------
Rate Swingline Loan, at a per annum rate (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the Quoted
Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in this Agreement,
in the event that the principal amount of any Quoted Rate Swingline Loan is not
repaid on the last day of the Interest Period for such Loan, then such Loan
shall be automatically converted into a Base Rate Loan at the end of such
Interest Period.
(ii) Payment of Interest. The Borrowers hereby promise to pay to the
-------------------
Swingline Lender on each applicable Interest Payment Date (or at such other
times as may be specified herein) accrued interest on the Swingline Loans.
SECTION 2.03. Letter of Credit Subfacility.
----------------------------
(a) Issuance. Subject to the terms and conditions hereof, the Lenders will
--------
participate (i) in the Existing Letters of Credit and (ii) in the issuance by
the Issuing Lender from time to time of such standby and trade Letters of Credit
from the Closing Date until the Maturity Date as the Borrowers may request in a
form acceptable to the Issuing Lender; provided, however, that (i) the LOC
-------- -------
Obligations outstanding shall not at any time exceed SEVENTY-FIVE MILLION
DOLLARS ($75,000,000) (the "LOC Committed Amount") and (ii) in no event shall
--------------------
the sum of Revolving Loans outstanding plus Swingline Loans outstanding plus LOC
---- ----
Obligations outstanding plus Competitive Loans outstanding exceed the Revolving
----
Committed Amount. Except as otherwise expressly agreed upon by all the Lenders,
no standby Letter of Credit shall have an original expiry date more than three
years from the date of issuance; provided, further, that no Letter of Credit, as
originally issued or as extended, shall have an expiry date extending beyond the
Maturity Date except that prior to the Maturity Date a Letter of Credit may be
------ ----
issued or extended with an expiry date extending beyond the Maturity Date if,
and to the extent that the Borrowers shall provide cash collateral to the
Issuing Lender on the date of issuance or extension in an amount equal to the
maximum amount available to be drawn under such Letter of Credit. The obligation
of the Issuing Lender to issue any Letter of Credit shall be conditioned upon
delivery to the Issuing Lender of the Issuing Lender's customary application for
a letter of credit, containing information necessary to issue the Letter of
Credit. If such application form contains any terms or conditions, such terms or
conditions shall have no force and effect, it being understood by the parties
hereto that the issuance and payment of Letters of Credit, and all other matters
between the Issuing Lender and the Lenders and the Borrowers with respect to
Letters of Credit and the credit relationship of the Issuing Lender and the
Lenders and the Borrowers shall be governed exclusively by this Agreement and
applicable law. The issuance and expiry date of each Letter of Credit shall be a
Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
------------------
shall be submitted to the Issuing Lender at least three (3) Business Days in the
case of standby Letters of
39
<PAGE>
Credit and one (1) Business Day in the case of trade Letters of Credit, prior to
the requested date of issuance. The Issuing Lender will provide to the
Administrative Agent at least monthly, and more frequently upon request, a
detailed summary report on its Letters of Credit and the activity thereof, in
form and substance satisfactory to the Administrative Agent. In addition, the
Issuing Lender will, at least quarterly and more frequently upon request,
disseminate to the Lenders a detailed report specifying the Letters of Credit
which are then issued and outstanding and any activity with respect thereto
which may have occurred since the date of the prior report, and including
therein, among other things, the account party, the beneficiary, the face
amount, expiry date as well as any payment or expirations which may have
occurred.
(c) Participations. (i) Each Lender, upon issuance of a Letter of Credit
--------------
shall be deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations arising thereunder
and any collateral relating thereto, in each case in an amount equal to its pro
rata share of the obligations under such Letter of Credit (based on the
respective Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Letter of Credit.
(ii) On the Closing Date, (A) each Lender shall be deemed to have
purchased without recourse a risk participation from the Issuing Lender in each
Existing Letter of Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal to its pro rata
share of the obligations under such Existing Letter of Credit (based on the
respective Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Existing Letter of
Credit and (B) each Existing Letter of Credit shall be deemed for all purposes
of this Agreement and the other Credit Documents to be a Letter of Credit.
(iii) Without limiting the scope and nature of each Lender's participation
in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit, each such
Lender shall pay to the Issuing Lender its pro rata share of such unreimbursed
drawing in same day funds on the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) hereof. The
obligation of each Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrowers to reimburse the
Issuing Lender under any Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under any Letter of
-------------
Credit, the Issuing Lender will promptly notify the Borrowers. Unless the
Borrowers shall reimburse the Issuing Lender on the day of drawing under any
Letter of Credit in same day funds, the Borrowers shall be deemed to have
requested a Revolving Loan in the amount of the drawing as provided herein, the
proceeds of which will be used to satisfy the reimbursement obligations and
40
<PAGE>
the unreimbursed amount of such drawing shall bear interest at a per annum rate
(computed on the basis of the actual number of days elapsed over a year of 360
days for each applicable day on which the Base Rate shall be determined on the
basis of the Federal Funds Effective Rate and over a year of 365/66 days for
each applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate) equal to the Base Rate. The Borrowers' reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or defense to payment the
Borrowers may claim or have against the Issuing Lender, the Administrative
Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any
other Person, including without limitation any defense based on any failure of
the Borrowers or any Restricted Subsidiary to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the other Lenders of the amount of any
unreimbursed drawing and each Lender shall promptly pay to the Administrative
Agent for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender's pro rata share of such unreimbursed
drawing. Such payment shall be made on the day such notice is received by such
Lender from the Issuing Lender if such notice is received at or before 2:00
p.m., Charlotte, North Carolina time, otherwise such payment shall be made at or
before 12:00 noon, Charlotte, North Carolina time, on the Business Day next
succeeding the day such notice is received. If such Lender does not pay such
amount to the Issuing Lender in full upon such request, such Lender shall, on
demand, pay to the Administrative Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date of such drawing
until such Lender pays such amount to the Issuing Lender in full at a rate per
annum equal to, if paid within two (2) Business Days of the date of drawing, the
Federal Funds Effective Rate (computed on the basis of the actual number of days
elapsed over a year of 360 days) and thereafter at a rate equal to the Base Rate
(computed on the basis of the actual number of days elapsed over a year of 360
days for each applicable day on which the Base Rate shall be determined on the
basis of the Federal Funds Effective Rate and over a year of 365/66 days for
each applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate). Each Lender's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Agreement or the Commitments
hereunder, the existence of a Default or Event of Default or the acceleration of
the obligations of the Borrowers hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents, and
shall have a claim against the Borrowers with respect thereto.
(e) Modification, Extension. The issuance of any supplement, modification,
-----------------------
amendment, renewal, or extension to any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter of
Credit hereunder.
41
<PAGE>
(f) Uniform Customs and Practices. Except as otherwise expressly stated
-----------------------------
herein, any Letter of Credit shall be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP") the terms of which may be
---
incorporated therein and deemed to be a part thereof.
(g) Provisions Relating to Trade Letters of Credit.
----------------------------------------------
(i) The Borrowers agree to procure or to cause the beneficiaries of each
trade Letter of Credit to procure promptly any necessary import and export or
other licenses for the import or export or shipping of any goods referred to in
or pursuant to a trade Letter of Credit and to comply and to cause the
beneficiaries to comply with all foreign and domestic governmental regulations
with respect to the shipment and warehousing of such goods or otherwise relating
to or affecting such trade Letter of Credit, including governmental regulations
pertaining to transactions involving designated foreign countries or their
nationals, and to furnish such certificates in that respect as the Issuing
Lender thereof may at any time reasonably require, and to keep such goods
adequately covered by insurance in amounts, with carriers and for such risks as
shall be customary in the industry and to furnish the Issuing Lender at its
request with reasonable evidence thereof. Should such insurance (or lack
thereof) upon said goods for any reason not be reasonably satisfactory to such
Issuing Lender, the Issuing Lender may (but is not obligated to) obtain, at the
Borrowers' expense at reasonable cost, insurance satisfactory to the Issuing
Lender.
(ii) In connection with each trade Letter of Credit, neither any Issuing
Lender nor any of their correspondents shall be responsible for: (A) the
existence, character, quality, quantity, condition, packing, value or delivery
of the property purporting to be represented by documents; (B) any difference in
character, quality, quantity, condition or value of the property from that
expressed in documents; (C) the time, place, manner or order in which shipment
of the property is made; (D) partial or incomplete shipment referred to in such
credit; (E) the character, adequacy or responsibility of any insurer, or any
other risk connected with insurance; (F) any deviation from instructions, delay,
default or fraud by the beneficiary or any one else in connection with the
property or the shipping thereof; (G) the solvency, responsibility or
relationship to the property of any party issuing any documents in connection
with the property; (H) delay in arrival or failure to arrive of either the
property or any of the documents relating thereto; (I) delay in giving or
failure to give notice of arrival or any other notice; (J) any breach of
contract between the shippers or vendors and the Borrowers or any applicable
Restricted Subsidiary; (K) any laws, customs, and regulations which may be
effective in any jurisdiction where any negotiation and/or payment of such trade
Letter of Credit occurs; (L) failure of documents (other than documents required
by the terms of the trade Letter of Credit) to accompany any draft at
negotiation; or (M) failure of any person to note the amount of any document or
drafts on the reverse of such trade Letter of Credit or to surrender or to take
up such trade Letter of Credit or to forward documents other than documents
required by the terms of the trade Letter of Credit. In connection with each
trade Letter of Credit, the Lender shall not be responsible for any error,
neglect or default of any of their correspondents. Nothing set forth in the
above shall affect, impair or prevent the vesting of any of the Issuing Lender's
rights or powers hereunder. If a trade Letter of Credit provides that payment is
to be made by the Issuing Lender's correspondent, neither the Issuing Lender nor
42
<PAGE>
such correspondent shall be responsible for the failure of any of the documents
specified in such trade Letter of Credit to come into the Issuing Lender's
hands, or for any delay in connection therewith, and the Borrowers' obligation
to make reimbursements shall not be affected by such failure or delay in the
receipt of any such documents.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement, a trade Letter of Credit issued hereunder may contain a statement to
the effect that such Letter of Credit is issued for the account of any
Subsidiary of a Borrower, provided that notwithstanding such statement, the
--------
Borrowers shall be the actual account party for all purposes of this Agreement
for such Letter of Credit and such statement shall not affect the Borrowers'
obligations hereunder with respect to such Letter of Credit.
(h) Nature of Issuing Lender's Duties.
---------------------------------
(i) As between the Borrowers and the Issuing Lender, the Borrowers shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuing Lender shall not be responsible: (A) for the
validity, accuracy, genuineness or legal effect of drafts, required statements
or documents, even if such drafts, statements or documents should in fact prove
to be in any or all respects invalid, inaccurate, fraudulent or forged; (B) for
any defect in a draft, payment request or other document unless such defect is
readily apparent upon the face of the draft, payment request or other document;
(C) for errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; or (D) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or Governmental Authority. None of the above shall affect,
impair, or prevent the vesting of the Issuing Lender's rights or powers
hereunder.
(ii) If a Borrower consents in writing to any overdrafts under any Letter
of Credit or authorizes in writing payment under any Letter of Credit with
irregular accompanying documents or authorizes or consents in writing to any
departure from the terms of such Letter of Credit, this Agreement shall be fully
binding upon the Borrowers with respect to such overdrafts, irregularities or
both and Lenders' rights shall be, in every respect, the same as if this
Agreement and such Letter of Credit expressly provided for such overdraft or
irregularity or both. If at the written request of a Borrower there is any
extension of time for presentation of any payment request or any document under
a Letter of Credit, this Agreement shall be fully binding upon the Borrowers
with regard to any payment request and documents presented within such extended
time.
(iii) Nothing in this Section 2.03(h) is intended to limit the
reimbursement obligation of the Borrowers contained in Section 2.03(d). No act
or omissions of any current or prior beneficiary of a Letter of Credit shall in
any way affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Agreement.
43
<PAGE>
SECTION 2.04 Competitive Loan Subfacility.
----------------------------
(a) Competitive Loans. Subject to and upon the terms and conditions and
-----------------
relying upon the representations and warranties herein set forth, the Borrowers
may, from time to time until the Maturity Date, request and each Lender may, in
its sole discretion, agree to make, Competitive Loans in Dollars to the
Borrowers; provided, however, that (i) the aggregate principal amount of
-------- -------
outstanding Competitive Loans shall not at any time exceed the lesser of (a) an
amount equal to fifty percent (50%) of the aggregate Revolving Committed Amount,
or, so long as the Company shall have attained and shall maintain a rating for
its senior unsecured non-credit enhanced long-term debt of BBB- or better by S&P
or Baa3 or better by Moody's, or in the absence of a rating, a Total Debt Ratio
of less than 3.5:1.0, an amount equal to one hundred percent (100%) of the
aggregate Revolving Committed Amount, or (b) the Revolving Committed Amount (the
"Competitive Loan Maximum Amount"), and (ii) the sum of Revolving Loans
-------------------------------
outstanding plus Swingline Loans outstanding plus the LOC Obligations
---- ----
outstanding plus Competitive Loans outstanding shall not at any time exceed the
----
Revolving Committed Amount. Each Competitive Loan shall be not less than
$5,000,000 in the aggregate and integral multiples of $1,000,000 in excess
thereof (or the remaining portion of the Competitive Loan Maximum Amount, if
less).
(b) Competitive Bid Requests. A Borrower may solicit Competitive Bids by
------------------------
delivery of a Competitive Bid Request substantially in the form of Schedule VA-1
-------------
to the Administrative Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than one (1) nor more than four (4) Business Days prior to
the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Administrative
Agent shall, promptly following its receipt of a Competitive Bid Request under
this subsection (b), notify the Lenders of its receipt and the contents thereof
and invite the Lenders to submit Competitive Bids in response thereto. A form of
such notice is provided in Schedule VA-2. No more than two (2) Competitive Bid
-------------
Requests (e.g., a Borrower may request Competitive Bids for no more than two (2)
different Interest Periods at a time) shall be submitted at any one time and
Competitive Bid Requests may be made no more frequently than once every five (5)
Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
-------------------------
make one or more Competitive Bids to the applicable Borrower in response to a
Competitive Bid Request. Each Competitive Bid must be received by the
Administrative Agent not later than 10:00 A.M. (Charlotte, North Carolina time)
on the Business Day next succeeding the date of receipt by the Administrative
Agent of the related Competitive Bid Request. A Lender may offer to make all or
part of the requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. The Competitive Bid
shall specify (i) the particular Competitive Bid Request as to which the
Competitive Bid is submitted, (ii) the minimum (which shall be not less than
$1,000,000 and integral multiples of $1,000,000 in excess thereof) and maximum
principal amounts of the requested Competitive Loan or Loans as to which the
Lender is willing to make, and (iii) the applicable interest rate or rates and
Interest Period or Periods therefor. A form of such Competitive Bid is provided
in Schedule VA-3. A Competitive Bid submitted by a
-------------
44
<PAGE>
Lender in accordance with the provisions hereof shall be irrevocable. The
Administrative Agent shall promptly notify the Borrowers by no later than 10:30
A.M. (Charlotte, North Carolina time) on the Business Day succeeding the date of
receipt by the Administrative Agent of the related Competitive Bid Request of
all Competitive Bids made and the terms thereof. The Administrative Agent shall
send a copy of each of the Competitive Bids to the Borrowers for their records
as soon as practicable.
(d) Submission of Competitive Bids by Administrative Agent. If the
------------------------------------------------------
Administrative Agent, in its capacity as a Lender, elects to submit a
Competitive Bid in response to any Competitive Bid Request, it shall submit such
Competitive Bid directly to the Borrowers one-half of an hour earlier than the
latest time at which the other Lenders are required to submit their Competitive
Bids to the Administrative Agent in response to such Competitive Bid Request
pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The applicable Borrower may, in its
------------------------------
sole and absolute discretion, subject only to the provisions of this Section
2.04(e), accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, a Borrower shall give written notification (or telephonic
notice promptly confirmed in writing) substantially in the form of Schedule VA-4
-------------
of its acceptance of any or all such Competitive Bids to the Administrative
Agent by 11:00 A.M. (Charlotte, North Carolina time) on the date on which notice
of election to make a Competitive Bid is to be given to the Administrative Agent
by the Lenders; provided, however, (i) the failure by a Borrower to give timely
-------- -------
notice of its acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (ii) a Borrower may accept Competitive Bids only in ascending order of
rates, (iii) the aggregate amount of Competitive Bids accepted by a Borrower
shall not exceed the principal amount specified in the Competitive Bid Request,
(iv) a Borrower may accept a portion of a Competitive Bid in the event, and to
the extent, acceptance of the entire amount thereof would cause such Borrower to
exceed the principal amount specified in the Competitive Bid Request, subject
however to the minimum amounts provided herein (and provided that where two or
more Lenders submit such a Competitive Bid at the same Competitive Bid Rate,
then pro rata between or among such Lenders) and (v) no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $1,000,000 and integral multiples of $1,000,000 in excess thereof,
except that where a portion of a Competitive Bid is accepted in accordance with
the provisions of Section 2.04(e)(iv), then in a minimum principal amount of
$1,000,000 and integral multiples of $1,000,000 in excess thereof (but not in
any event less than the minimum amount specified in the Competitive Bid), and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to Section 2.04(e)(iv), the
amounts shall be rounded to integral multiples of $1,000,000 in a manner which
shall be in the discretion of the applicable Borrower. A notice of acceptance of
a Competitive Bid given by a Borrower in accordance with the provisions hereof
shall be irrevocable. The Administrative Agent shall, not later than 12:00 Noon
(Charlotte, North Carolina time) on the date of receipt by the Administrative
Agent of a notification from a Borrower of its acceptance and/or refusal of
Competitive Bids, notify each affected Lender of its receipt and the contents
thereof. Upon its receipt from the Administrative Agent of notification of a
Borrower's acceptance of its Competitive Bid in accordance with the terms of
this Section 2.04(e), each successful bidding
45
<PAGE>
Lender will thereupon become bound, subject to the other applicable conditions
hereof, to make the Competitive Loan in respect of which its bid has been
accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
----------------------------
Competitive Loan shall make its Competitive Loan borrowing available to the
Administrative Agent for the account of the Borrowers at the office of the
Administrative Agent specified herein by 1:30 P.M. (Charlotte, North Carolina
time) on the date specified in the Competitive Bid Request in Dollars and in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrowers by crediting the account of the
Borrowers on the books of such office with the aggregate of the amount made
available to the Administrative Agent by the applicable Competitive Loan Lenders
and in like funds as received by the Administrative Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature and
-----------------------------
be due and payable in full on the last day of the Interest Period applicable
thereto. Unless a Borrower shall give notice to the Administrative Agent
otherwise, the Borrowers shall be deemed to have requested a Revolving Loan
borrowing in the amount of the maturing Competitive Loan, the proceeds of which
will be used to repay such Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
-----------------------------
3.01, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
SECTION 2.05. Voluntary Termination.
---------------------
The Borrowers may from time to time permanently reduce or terminate the
aggregate Revolving Committed Amount in whole or in part (in minimum aggregate
amounts of the lesser of $1,000,000 or the full remaining amount of the
Revolving Committed Amount) upon three Business Days' prior irrevocable written
notice to the Administrative Agent; provided, however, no such termination or
-------- -------
reduction shall be made which would reduce the Revolving Committed Amount to an
amount less than the sum of Revolving Loans outstanding plus Swingline Loans
----
outstanding plus LOC Obligations outstanding plus Competitive Loans outstanding.
---- ----
The commitments of the Lenders to make, extend or convert Revolving Loans shall
automatically terminate on the Maturity Date. The Administrative Agent shall
promptly notify each of the Lenders of receipt by the Administrative Agent of
any notice from the Borrowers pursuant to this Section 2.05.
SECTION 2.06. Fees.
----
(a) Facility Fee. In consideration of the Commitments hereunder, the
------------
Borrowers agree to pay to the Administrative Agent for the account of the
Lenders a facility fee (the "Facility Fee") on the aggregate Revolving Committed
------------
Amount computed at a per annum rate equal to the Applicable Margin for each day
during the applicable period. The Facility Fee shall be payable quarterly in
arrears on the fifteenth (15th) day of each January, April, July and October and
on the Maturity Date for the immediately preceding fiscal quarter (or portion
thereof).
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<PAGE>
(b) Letter of Credit Fees.
---------------------
(i) Standby Letter of Credit Fee. In consideration of the issuance of
----------------------------
standby Letters of Credit hereunder, the Borrowers agree to pay to the Issuing
Lender a fee (the "Standby Letter of Credit Fee") equal to the Applicable Margin
----------------------------
for Letters of Credit plus one-eighth of one percent (1/8%) per annum on the
----
average daily maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration. Of such Standby
Letter of Credit Fee, the Issuing Lender shall retain for its own account
without sharing by the other Lenders one-eighth of one percent (1/8%) per annum
thereon and shall promptly pay over to the Administrative Agent for the ratable
benefit of the Lenders (including the Issuing Lender) the remainder of amounts
paid on the Standby Letter of Credit Fee; provided, however, that the Lenders
-------- -------
shall not be entitled to any such fee in respect of a standby Letter of Credit
which is an Existing Letter of Credit if such fee has been deemed to be earned
during the period prior to the Closing Date (it being understood and agreed by
each of the Lenders that any such fee in respect of a standby Letter of Credit
which is an Existing Letter of Credit shall be deemed to be earned evenly
throughout the period for which it is paid regardless of when it was paid). The
Standby Letter of Credit Fee will be payable quarterly in arrears on the 15th
day of each January, April, July and October.
(ii) Trade Letter of Credit Fee. In consideration of the issuance of trade
--------------------------
Letters of Credit hereunder, the Borrowers agree to pay to the Issuing Lender a
fee (the "Trade Letter of Credit Fee") equal to one-quarter of one percent
--------------------------
(1/4%) of the amount of each drawing under any such Letter of Credit or such
lesser amount as may be agreed upon by the Issuing Lender and the Borrowers. Of
such Trade Letter of Credit Fee, the Issuing Lender shall pay over to the
Administrative Agent for the ratable benefit of the Lenders (including the
Issuing Lender) one-eighth of one percent (1/8%) thereof and the Issuing Lender
may retain for its own account without sharing by the other Lenders the amount
in excess thereof, if any. The Trade Letter of Credit Fee will be collected by
the Issuing Lender on the date of each drawing, the Lenders' portion of which
will be paid over to the Administrative Agent quarterly on the 15th day of each
January, April, July and October for distribution to the Lenders (including the
Issuing Lender).
(iii) Issuing Lender Fees. In addition to the Standby Letter of Credit
-------------------
Fees and Trade Letter of Credit Fees payable pursuant to clauses (i) and (ii)
above, the Borrowers shall pay to the Issuing Lender for its own account without
sharing by the other Lenders the customary charges from time to time of the
Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters
of Credit (collectively, the "Issuing Lender Fees").
-------------------
(c) Agents' Fees. The Borrowers agree to pay to the Administrative Agent
------------
and the Co-Arrangers, for their own account, such structuring, syndication,
administrative and other fees (collectively, the "Agents' Fees") as provided in
------------
the Mandate Letter and the Administrative Agent's Fee Letter.
47
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(d) Competitive Bid Request Fee. The Borrowers shall pay to the
---------------------------
Administrative Agent concurrently with each Competitive Bid Request such
administrative fee as provided in the Administrative Agent's Fee Letter (the
"Competitive Bid Request Fee").
---------------------------
ARTICLE III.
ADDITIONAL PROVISIONS REGARDING LOANS
SECTION 3.01. Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Base Rate).
SECTION 3.02. Prepayments.
-----------
(a) Voluntary.
---------
(i) Revolving Loans and Competitive Loans. The Borrowers shall have the
-------------------------------------
right to prepay Revolving Loans and Competitive Loans in whole or in part from
time to time without premium or penalty; provided, however, that (A) each such
-------- -------
partial prepayment shall be a minimum principal amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and (B) no Eurodollar Loan or
Competitive Loan may be prepaid prior to the last day of the Interest Period
applicable thereto unless accompanied by payment of amounts specified in Section
3.07. Amounts prepaid on the Revolving Loans may be reborrowed in accordance
with the provisions hereof.
(ii) Swingline Loans. The Borrowers shall have the right to prepay
---------------
Swingline Loans which are Base Rate Loans in whole or in part from time to time
without premium or penalty; provided, however, that each such partial prepayment
-------- -------
shall be a minimum principal amount of $100,000 or an integral multiple of
$100,000 in excess thereof. Swingline Loans which are Quoted Rate Swingline
Loans may not be prepaid unless accompanied by payments of amounts specified in
Section 3.07. Amounts prepaid on the Swingline Loans may be reborrowed in
accordance with the provisions hereof.
(iii) Application. Amounts prepaid hereunder shall be applied to the
-----------
Revolving Loans and the Swingline Loans as the Borrowers may elect, provided
--------
that if the Borrowers shall fail to specify their application, prepayments shall
be applied, first, to the Swingline Loans (and with respect to Base Rate Loans
and Quoted Rate Swingline Loans comprising such Loans, first to Base Rate Loans
and then to Quoted Rate Swingline Loans in direct order of Interest Period
maturities), second, to Revolving Loans (and with respect to Base Rate Loans and
Eurodollar
48
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Loans comprising such Loans, first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities) and, third, to Competitive
Loans in direct order of Interest Period maturities.
(b) Mandatory.
---------
(i) Revolving Committed Amount Limitation. If at any time (A) the
-------------------------------------
sum of Revolving Loans outstanding plus Swingline Loans outstanding plus LOC
---- ----
Obligations outstanding plus Competitive Loans outstanding shall exceed (B) the
Revolving Committed Amount, then in any such instance the Borrowers shall pay,
prepay or otherwise reduce so much of the outstanding Loans and LOC Obligations
as shall be necessary to eliminate such excess.
(ii) Asset Dispositions. Unless otherwise agreed by the Required
------------------
Lenders, the aggregate Revolving Committed Amounts under this Agreement and
under the 364-Day Credit Agreement shall be permanently reduced in an aggregate
amount equal to one hundred percent (100%) of the net cash proceeds received
from Asset Dispositions to the extent that (A) such net cash proceeds are not
reinvested in property or assets within two (2) years, in the case of the sale
or disposition of a replacement warehouse facility, and, in all other cases, 180
days of the date of sale, lease, disposition, casualty, theft or loss which gave
rise to the Asset Disposition, and (B) the aggregate amount of net cash proceeds
from all such Asset Dispositions not reinvested within the applicable period
shall exceed ten percent (10%) of Consolidated Net Tangible Assets on the most
recent Determination Date. In connection with a reduction in the Revolving
Committed Amount in accordance with this subsection (ii), the reduction of the
Commitments hereunder and under the 364 Day Credit Agreement shall be applied,
first, to the Loans outstanding under the 364-Day Credit Agreement if and to the
extent Loans are outstanding thereunder beyond the Revolving Commitment
Termination Date (as defined in the 364-Day Credit Agreement) until the
aggregate amount of such Loans outstanding is reduced to zero, and, second, to
the Revolving Committed Amount under this Agreement until the Revolving
Committed Amount hereunder is reduced to zero, and, third, to the Revolving
Committed Amount under the 364-Day Credit Agreement.
(iii) Payments and prepayments pursuant to this Section 3.02(b) shall
be applied, first, to Swingline Loans (and with respect to Base Rate Loans and
-----
Quoted Rate Swingline Loans comprising such Loans, first to Base Rate Loans and
then to Quoted Rate Swingline Loans in direct order of Interest Period
maturities), until all Swingline Loans have been repaid or prepaid in full;
second, to Revolving Loans (and with respect to Base Rate Loans and Eurodollar
- ------
Loans comprising such Loans, first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities), until all Revolving Loans
have been repaid or prepaid in full; third, to Competitive Loans in direct order
-----
of Interest Period maturities; and fourth, to the extent necessary, to the
------
payment to the Administrative Agent of additional amounts of cash, to be held by
the Administrative Agent, for the benefit of the Issuing Lender and the other
Lenders, in a cash collateral account as additional security for the Borrowers'
LOC Obligations for subsequent drawings under then outstanding Letters of
Credit.
49
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(c) General. All prepayments of Loans shall be subject to Section 3.07 but
-------
otherwise without premium or penalty and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment and all
other amounts due and payable hereunder with respect to such Loans.
SECTION 3.03. Extension and Conversion.
------------------------
The Borrowers shall have the option, on any Business Day, to extend
existing Loans into a subsequent Interest Period or to convert Loans into Loans
of another type; provided, however, that (i) except as provided in Section 3.06,
-------- -------
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be in such
minimum amounts as provided in Section 2.01(b), (iv) any request for extension
or conversion of a Eurodollar Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month and
(v) Swingline Loans may not be converted or extended pursuant to this Section
3.03. Each such extension or conversion shall be effected by the Borrowers by
giving a Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Administrative Agent prior to 1:00 P.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan and on the third Business Day prior to, in
the case of the extension of a Eurodollar Loan as, or conversion of a Base Rate
Loan into, a Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans to be so
extended or converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall constitute a
representation and warranty by the Borrowers of the matters specified in
Sections 5.02(b), (c) and (d). In the event the Borrowers fail to request
extension or conversion of any Eurodollar Loan in accordance with this Section,
or any such conversion or extension is not permitted or required by this
Section, then such Loans shall be automatically converted into Base Rate Loans
at the end of their Interest Period. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
SECTION 3.04. Alternate Rate of Interest.
--------------------------
In the event, and on each occasion, that on the day two Business Days prior
to the commencement of any Interest Period for a Eurodollar Loan the
Administrative Agent shall have determined in good faith (i) that dollar
deposits in the principal amounts of such Eurodollar Loan are not generally
available in the London interbank market or (ii) that reasonable means do not
exist for ascertaining the Eurodollar Rate as practicable thereafter, give telex
or telecopy notice of such determination to the Borrowers and the Lenders. In
the event of any such determination under clause (i) or (ii) above, until the
Administrative Agent shall have advised the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (A) any request by the
Borrowers for a Eurodollar Loan pursuant to Section 2.01(b) shall be deemed to
be a request for a Base Rate Loan and (B) any request by the Borrowers for
conversion into or
50
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extension of a Eurodollar Loan pursuant to Section 3.03 shall be deemed to be a
request for conversion into or extension of a Base Rate Loan. Each determination
by the Administrative Agent hereunder shall be in good faith and shall be
rebuttably presumptive evidence thereof absent manifest error.
SECTION 3.05. Reserve Requirements; Change in Circumstances.
---------------------------------------------
(a) Notwithstanding any other provision herein, if after the Relevant Date
(as defined in Section 3.05(c)) any change in applicable law or regulation or in
the interpretation or administration thereof by any Governmental Body charged
with the interpretation or administration thereof (whether or not having the
force of law) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender (including without limitation the
Swingline Lender and the Issuing Lender), or shall impose on such Lender or the
London interbank market any other condition affecting this Agreement, such
Lender's Commitment, any Loan made by such Lender, any Letter of Credit issued
by such Lender or any Participation Interest held by such Lender (other than the
imposition of or change in the rate of any Taxes as defined in Section 4.04 or
the imposition of or change in the rate of any item specifically excluded from
such definition of Taxes pursuant to the terms of such Section), and the result
of any of the foregoing shall be to increase the cost to such Lender of making,
issuing or maintaining such Loan, Letter of Credit or Participation Interest, as
the case may be, or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender to be material, then the Borrowers will pay to such Lender
in accordance with Section 3.05(d) upon demand such additional amount or amounts
as will compensate such Lender for any such additional costs incurred or
reduction suffered after delivery to the Borrowers of a certificate relating to
such additional costs or such reduction as contemplated by such Section 3.05(d).
(b) If any Lender (including without limitation the Swingline Lender, the
Issuing Lender and any Competitive Lender) shall have determined that after the
Relevant Date the applicability of any law, rule, regulation or guideline
adopted pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards," or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Body, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, such
Lender's Commitment or any Loan made by such Lender pursuant hereto, any Letter
of Credit issued by such Lender pursuant hereto or any Participation Interest
held by such Lender pursuant hereto to a level below that which such Lender or
such Lender's holding company could have achieved but for such adoption, change
or compliance (taking into
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consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time after delivery to the Borrowers of a
certificate relating to such additional cost or costs as contemplated by Section
3.05(d), the Borrowers shall pay to such Lender in accordance with such Section
3.05(d) such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) For purposes of this Section 3.05, "Relevant Date" shall mean, in the
case of a Lender that is a Lender on the date hereof and, in the case of a
Lender that becomes a Lender after the date hereof as provided in Section
12.04(b), the date on which such Lender becomes a Lender under such Section.
(d) A certificate signed by a duly authorized officer of a Lender setting
forth such amount or amounts (including computation of such amount or amounts)
as shall be necessary to compensate such Lender or its holding company as
specified in Section 3.05(a) or (b), as the case may be, shall be delivered to
the Borrowers and the Administrative Agent, and the Borrowers shall pay to such
Lender, within 30 Business Days after receipt by the Borrowers of such
certificate delivered by the Lender, the amount shown as due on any such
certificate.
(e) The protection of this Section shall be available to each Lender
(including without limitation the Swingline Lender and the Issuing Lender)
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed. Each determination by a Lender (including
without limitation the Swingline Lender and the Issuing Lender) under this
Section 3.05 shall be in good faith and shall be rebuttably presumptive evidence
thereof absent manifest error.
SECTION 3.06. Change in Legality.
------------------
(a) Notwithstanding any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any Governmental Body charged
with the administration or interpretation thereof shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
30 days' (or such shorter period as shall be required in order to comply with
applicable law) written notice to the Borrowers and to the Administrative Agent,
such Lender may:
(i) declare that Eurodollar Loans, and conversions into or extensions
of Eurodollar Loans, will not thereafter be made by such Lender hereunder,
whereupon any request by a Borrower for, or for conversion into or
extension of, a Eurodollar Loan shall, as to such Lender only, be deemed a
request for, or for conversion into or extension of, a Base Rate Loan,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to Base Rate Loans, in which event all such Eurodollar Loans
shall be automatically
52
<PAGE>
converted to Base Rate Loans as of the effective date of such notice as
provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 3.06, a notice to the Borrowers by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrowers. Each determination by a Lender under this Section 3.06 shall be in
good faith and shall be rebuttably presumptive evidence thereof absent manifest
error.
SECTION 3.07. Indemnity.
---------
The Borrowers shall indemnify each Lender (including without limitation the
Swingline Lender) against any loss, cost or expense which such Lender may
sustain or incur as a consequence of (a) any failure by the Borrowers to borrow
or to refinance, convert or extend any Loan hereunder after notice of such
borrowing, refinancing, conversion or extension has been given pursuant to
Section 2.01, 2.02 or 3.03, or (b) any payment, prepayment or conversion by the
Borrowers of a Eurodollar Loan, Quoted Rate Swingline Loan or a Competitive Loan
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto. In the case of any such event, the Borrowers shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to such Lender any amounts required to compensate such Lender for any
reasonable loss, cost or expense which such Lender may incur as a result of such
action or inaction by the Borrowers, including without limitation any reasonable
loss, cost or expense incurred by reason, of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Loan or
proposed Loan. Each request for payment hereunder shall be accompanied by a
certificate of the Lender requesting payment with a calculation in reasonable
detail of the loss, cost or expense for which recovery is sought. Each
determination by a Lender under this Section 3.07 shall be in good faith and
shall be rebuttably presumptive evidence thereof absent manifest error.
SECTION 3.08. Mandatory Assignment; Commitment Termination.
--------------------------------------------
In the event that any Lender delivers to the Administrative Agent or the
Borrowers, as appropriate, a certificate in accordance with Section 3.05(d) or a
notice in accordance with Section 3.06 or in the event that any Lender fails to
fulfill its Commitment to make any Revolving Loan, then, provided that no
Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Administrative Agent under Section 12.04(b)), and in its sole
discretion (a) require such Lender to transfer and assign in whole or in part,
without recourse (in
53
<PAGE>
accordance with and subject to the terms and conditions of Section 12.04(b)),
all or part of its interests, rights and obligations under this Agreement to an
Eligible Assignee which shall assume such assigned obligations (which Eligible
Assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) such assignment shall not relieve the Borrowers from their obligations
to pay such additional amounts that may be due in accordance with Section
3.05(a) or (b), (ii) such assignment shall not conflict with any law, rule or
regulation or order of any court or other Governmental Body and (iii) the
Borrowers or such Eligible Assignee shall have paid to the assigning Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all accrued Fees and other
amounts owed to it hereunder or (b) terminate the Commitment of such Lender,
prepay all outstanding Loans of such Lender and cash collateralize such Lender's
Participation Interests in Swingline Loans and LOC Obligations then outstanding;
provided that (i) such termination of the Commitment of such Lender shall not
relieve the Borrowers from their obligations to pay such additional amounts that
may be due in accordance with Section 3.05(a) or (b), (ii) such termination of
the Commitment of such Lender, prepayment of Loans and cash collateralization of
such Participation Interests in Swingline Loans and LOC Obligations does not
conflict with any law, rule or regulation or order of any court or other
Governmental Body and (iii) the Borrowers shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all other amounts owed to it
hereunder and shall have cash collateralized such Lender's Participation
Interests in outstanding Swingline Loans and LOC Obligations.
SECTION 3.09. Concerning Joint and Several Liability of the Borrowers.
-------------------------------------------------------
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by the
Lenders under this Agreement, for the mutual benefit, directly and indirectly,
of each of the Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of each of
them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrower with respect to the payment and
performance of all of the obligations of the Borrowers under the Credit
Documents (the "Credit Obligations"), it being the intention of the parties
------------------
hereto that all such Credit Obligations shall be the joint and several
obligations of each of the Borrowers without preferences or distinction among
them.
(c) If and to the extent that either Borrower shall fail to make any
payment with respect to any of the Credit Obligations as and when due or to
perform any of the Credit Obligations in accordance with the terms thereof, then
in each such event, the other Borrower will make such payment with respect to,
or perform, such Credit Obligations.
(d) The obligations of each Borrower under the provisions of this Section
3.09 constitute full recourse obligations of both of the Borrowers, enforceable
against both of the
54
<PAGE>
Borrowers to the full extent of their properties and assets, irrespective of the
validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(e) The provisions of this Section 3.09 are made for the benefit of the
Administrative Agent and the Lenders and their respective successors and
assigns, and may be enforced by any such Person from time to time against either
Borrower as often as occasion therefor may arise and without requirement on the
part of any Lender first to marshal any of its claims or to exercise any of its
rights against the other Borrower or to exhaust any remedies available to it
against the other Borrower or to resort to any other source or means of
obtaining payment of any of the Credit Obligations or to elect any other remedy.
The provisions of this Section 3.09 shall remain in effect until all the Credit
Obligations shall have been paid in full or otherwise fully satisfied. If at any
time, any payment, or any part thereof, made in respect of any of the Credit
Obligations, is rescinded or must otherwise be restored or returned by any
Lender upon the insolvency, bankruptcy or reorganization of either Borrower, or
otherwise, the provisions of this Section 3.09 will forthwith be reinstated in
effect, as though such payment had not been made.
(f) Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the joint obligations of a
Borrower shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of each
Borrower hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the federal Bankruptcy Code).
(g) The Borrowers hereby agree, as among themselves, that if a Borrower
shall become an Excess Funding Borrower (as defined below), the other Borrower
shall, on demand of such Excess Funding Borrower (but subject to the next
sentence hereof and to subsection (B) below), pay to such Excess Funding
Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Borrower) of such Excess Payment
(as defined below). The payment obligation of a Borrower to any Excess Funding
Borrower under this Section 3.09(g) shall be subordinate and junior in right of
payment to the prior payment in full of the Credit Obligations of such Borrower
under the other provisions of this Agreement, and such Excess Funding Borrower
shall not exercise any right or remedy with respect to such excess until payment
and satisfaction in full of all of such Credit Obligations. For purposes
hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Credit
Obligations arising under the other provisions of this Agreement (the "Joint
Obligations"), a Borrower that has paid an amount in excess of its Pro Rata
Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of
any Joint Obligations, the amount paid by an Excess Funding Borrower in excess
of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for
the purposes of this Section 3.09(g), shall mean, for any Borrower, the ratio
(expressed as a percentage) of (A) the amount by which the aggregate present
fair saleable value of all of its assets and properties exceeds the amount of
all debts and liabilities of such Borrower (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Borrower hereunder) to (B) the amount by which the aggregate present fair
saleable value of all assets and other properties of such Borrower and the other
Borrower exceeds the amount of all of
55
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the debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such Borrower and the
other Borrower hereunder) of such Borrower and the other Borrower, all as of the
Closing Date (if any Borrower becomes a party hereto subsequent to the Closing
Date, then for the purposes of this Section 3.09(g) such subsequent Borrower
shall be deemed to have been a Borrower as of the Closing Date and the
information pertaining to, and only pertaining to, such Borrower as of the date
such Borrower became a Borrower shall be deemed true as of the Closing Date).
ARTICLE IV.
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S. TAXES; EVIDENCE OF LOANS
SECTION 4.01. Payments and Computations.
-------------------------
Except as otherwise specifically provided herein, all payments hereunder shall
be made to the Administrative Agent in dollars in immediately available funds,
without offset, deduction or withholding of any kind, at its offices at
NationsBank Corporate Center, Charlotte, North Carolina not later than 2:00 P.M.
(Charlotte, North Carolina time) on the date when due. The Administrative Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrowers
maintained with the Administrative Agent (with notice to the Borrowers). A
Borrower shall, at the time it makes any payment under this Agreement, specify
to the Administrative Agent the Loans, LOC Obligations, Fees or other amounts
payable by the Borrowers hereunder to which such payment is to be applied (and
in the event that it fails so to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall distribute
such payment to the Lenders (including without limitation the Swingline Lender
and the Issuing Lender) in such manner as the Administrative Agent may determine
to be appropriate in respect of obligations owing by the Borrowers hereunder,
subject to the terms of Sections 3.02 and 4.02). The Administrative Agent will
thereafter cause to be distributed promptly on the same day like funds relating
to the payment of principal or interest or Fees ratably to the Lenders entitled
to receive such payments in accordance with the terms of this Agreement.
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and fees shall
be made on the basis of actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of advance, but exclude the date
of payment.
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SECTION 4.02. Pro Rata Treatment.
------------------
(a) Except to the extent otherwise provided herein, each Revolving Loan,
each payment or prepayment of principal of any Revolving Loan, each payment of
interest on the Revolving Loans, each payment of Fees (other than those which
are not shared), each reduction of the Revolving Committed Amount and each
conversion or extension of any Revolving Loan, shall be allocated pro rata among
the Lenders in accordance with their respective Commitment Percentages (or if
the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Revolving Loans and Participation
Interests of the Lenders).
(b) Each payment of unreimbursed drawings in respect of LOC Obligations
shall be allocated to each Lender entitled thereto pro rata in accordance with
the respective Commitment Percentages of the Lenders; provided that, if any
--------
Lender shall have failed to pay its pro rata share of any drawing under any
Letter of Credit, then any amount to which such Lender would otherwise be
entitled pursuant to this clause (ii) shall instead be payable to the Issuing
Lender; provided further, that in the event any amount paid to any Lender
-------- -------
pursuant to this clause (ii) is rescinded or must otherwise be returned by the
Issuing Lender, each Lender shall, upon the request of the Issuing Lender, repay
to the Administrative Agent for the account of the Issuing Lender the amount so
paid to such Lender, with interest for the period commencing on the date such
payment is returned by the Issuing Lender until the date the Issuing Lender
receives such repayment at a rate per annum equal to, during the period to but
excluding the date two (2) Business Days after such request, the Federal Funds
Effective Rate (computed on the basis of the actual number of days elapsed over
a year of 360 days), and thereafter, the Base Rate plus two percent (2%)
----
(computed on the basis of the actual number of days elapsed over a year of 360
days for each applicable day on which the Base Rate shall be determined on the
basis of the Federal Funds Effective Rate and over a year of 365/66 days for
each applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate).
SECTION 4.03. Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan, unreimbursed drawing with respect to any
LOC Obligation or other obligation owing to such Lender under this Agreement
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise in excess of its pro rata share as provided for in this Agreement,
such Lender shall promptly purchase from the other Lenders a participation in
such Loans, LOC Obligations and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Agreement. The Lenders further agree among themselves that
if payment to a Lender obtained by such Lender through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by repurchase of a participation theretofore
sold, return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrowers
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agree that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including set-off,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan, LOC Obligation or other obligation in
the amount of such participation. Except as otherwise expressly provided in this
Agreement, if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Administrative Agent or such other
Lender at a rate per annum equal to the Federal Funds Effective Rate.
SECTION 4.04. Net Payments.
------------
All payments made by the Borrowers hereunder will be made without set-off
or counterclaim. All payments by the Borrowers hereunder shall be made free and
clear of and without deduction or withholding for any Taxes (as hereinafter
defined), except to the extent that such deduction or withholding is required by
law. For purposes of this Section 4.04, "Taxes" shall mean any present or
future license, registration or other fees, taxes or other amounts for or on
account of levies, imposts, duties, deductions, withholdings or other charges of
whatsoever nature, imposed, levied, collected, withheld or assessed by any
governmental or taxing authority, excluding income and franchise taxes imposed
on a Lender (i) by a jurisdiction under which such Lender is organized or
operating in connection with this Agreement or any political subdivision thereof
or (ii) as a result of a present or former connection between the jurisdiction
of the governmental or taxing authority imposing such taxes and the Lender. If
the Borrowers shall be required to withhold or deduct Taxes (other than U.S.
Taxes as defined in Section 4.05) from any sum payable hereunder, (i) the sum
payable shall be increased as may be necessary so that the amount received is
equal to the sum which would have been received had no withholdings or
deductions been made, (ii) the Borrowers shall make such necessary withholdings
or deductions and (iii) the Borrowers shall pay the full amount withheld or
deducted to the relevant authority according to applicable law so that the
Lenders shall not be required to make any deduction or payment of Taxes.
Notwithstanding anything contained in this Section, the Borrowers shall not be
required to make payment hereunder to the extent such amounts relate to any
period prior to the date that is 90 days prior to the date that the Borrowers
first receive notice from such Lender requesting payment of any such additional
amounts. Each Lender making a request for compensation under this Section shall
use reasonable efforts to change its Eurodollar lending office with a view to
mitigate amounts payable hereunder so long as any such change is not unduly
burdensome to the Lender.
SECTION 4.05. U.S. Taxes.
----------
(a) The Borrowers agree to pay to each Lender that is not a U.S. Person (a
"Foreign Lender") such additional amounts as are necessary in order that the net
--------------
payment of any amount due to such Foreign Lender hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by
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such Foreign Lender), will not be less than the amount stated herein to be then
due and payable, provided that the foregoing obligation to pay such additional
--------
amounts shall not apply:
(i) to any payment to any Foreign Lender hereunder unless such
Foreign Lender (A) on the date hereof (or on the date it becomes a Lender
as provided in Section 12.04(b)) and on the date of any change in the
applicable lending office of such Foreign Lender, is entitled to submit
either a Form 1001 (relating to such Foreign Lender and entitling it to a
complete exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all interest
to be received by such Foreign Lender hereunder in respect of the Loans)
and (B) timely delivers such Form in duplicate to the Borrowers, with a
copy to the Administrative Agent at such time;
(ii) to any payment to any Foreign Lender hereunder unless such
Foreign Lender delivers to the Borrowers an updated copy of a Form 1001 and
a Form 4224 on or before the date of expiration or obsolescence of, or the
date of the occurrence of any event requiring a change in, the most recent
Form 1001 and/or Form 4224 previously delivered to the Borrowers by such
Foreign Lender pursuant to this Section 4.05 (and such extensions or
renewals of such Forms as may reasonably be requested by the Borrowers from
time to time), unless an event has occurred prior to the date on which
delivery of any such updated Form 1001 and/or Form 4224 would otherwise be
required which has rendered such Form or Forms inapplicable to any payment
to a Foreign Lender hereunder subsequent to such date; or
(iii) to any U.S. Tax imposed solely by reason of the failure by
such Foreign Lender to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity, or connections with the United States of America of
such Foreign Lender if such compliance is required by statute or regulation
of the United States of America as a precondition to relief or exemption
from such U.S. Taxes; and
provided further that the Borrowers shall not be required pursuant to this
- -------- -------
Section 4.05 to pay additional amounts to any Foreign Lender to the extent that
such additional amounts relate to any payment to such Foreign Lender required
hereunder prior to the date that is 90 days after the date that the Borrowers
first receive notice from such Foreign Lender requesting payment of any such
additional amounts.
For the purposes of this Section 4.05(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates), (y) "U.S. Person" shall mean a citizen, national or
resident of the United States of
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America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income and
(z) "U.S. Taxes" shall mean any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein.
(b) Within thirty (30) days after paying any amount to the Administrative
Agent or any Foreign Lender from which it is required by law to make any
deduction or withholding, and within thirty (30) days after it is required by
law to remit such deduction or withholding to any relevant taxing or other
authority, the Borrowers shall deliver to the Administrative Agent for delivery
to such Foreign Lender evidence satisfactory to such Foreign Lender of such
deduction, withholding or payment (as the case may be).
(c) In the event that any Lender requests payment by the Borrowers of any
additional amounts pursuant to Section 4.04 or this Section 4.05(a), then,
provided that no Default or Event of Default has occurred and is continuing at
such time, the Borrowers may, at their own expense (such expense to include any
transfer fee payable to the Administrative Agent under Section 12.04(b)), and in
their sole discretion (a) require such Lender to transfer and assign in whole or
in part, without recourse (in accordance with and subject to the terms and
conditions of Section 12.04(b)), all or part of its interests, rights and
obligations under this Agreement to an Eligible Assignee which shall assume such
assigned obligations (which Eligible Assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) such assignment shall not relieve
the Borrowers from their obligations to pay such additional amounts that may be
due in accordance with Section 4.04 or this Section 4.05(a), (ii) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Body and (iii) the Borrowers or such Eligible
Assignee shall have paid to the assigning Lender in immediately available funds
the principal of and interest accrued to the date of such payment on the Loans
made by it hereunder and all accrued Fees and other amounts owed to it hereunder
or (b) terminate the Commitment of such Lender, prepay all outstanding Loans of
such Lender and cash collateralize such Lender's Participation Interests in
Swingline Loans and LOC Obligations then outstanding; provided that (i) such
termination of the Commitment of such Lender shall not relieve the Borrowers
from their obligations to pay such additional amounts that may be due in
accordance with Section 4.04 or this Section 4.05(a), (ii) such termination of
the Commitment of such Lender, prepayment of Loans and cash collateralization of
such Participation Interests in Swingline Loans and LOC Obligations does not
conflict with any law, rule or regulation or order of any court or other
Governmental Body and (iii) the Borrowers shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all other amounts owed to it
hereunder and shall have cash collateralized such Lender's Participation
Interests in outstanding Swingline Loans and LOC Obligations.
SECTION 4.06. Evidence of Loans.
-----------------
(a) Each Lender shall maintain an account or accounts evidencing (i) each
Loan made by such Lender to the Borrowers from time to time, (ii) any amounts
paid other than as Loans by
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such Lender to or for the account of the Swingline Lender pursuant to Section
2.02(b)(iii) from time to time and (iii) any amounts paid other than as Loans by
such Lender to or for the account of the Issuing Lender pursuant to Section
2.03(c) from time to time, including in each case the amounts of principal and
interest payable and paid to such Lender from time to time under this Agreement.
Each Lender will make reasonable efforts to maintain the accuracy of its account
or accounts and to promptly update its account or accounts from time to time, as
necessary.
(b) The Administrative Agent shall maintain a register and a subaccount for
each Lender, in which register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each Loan hereunder, (ii)
the maximum amount available to be drawn under each outstanding Letter of
Credit, (iii) the amount of any principal or interest due and payable or to
become due and payable to each Lender hereunder, (iv) the amount of any sum
received by the Administrative Agent hereunder from or for the account of the
Borrowers and each Lender's share thereof and (v) the amount of each payment
received by the Issuing Lender from the Borrowers in reimbursement of any LOC
Obligations. The Administrative Agent will make reasonable efforts to maintain
the accuracy of the subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, register and subaccounts maintained
pursuant to Sections 4.06(a) and (b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain any such account,
such register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligations of the Borrowers hereunder.
ARTICLE V.
CONDITIONS PRECEDENT
SECTION 5.01. Conditions to Closing Date.
--------------------------
The effectiveness of this Agreement and the commitments contained herein
are subject to satisfaction of the following conditions, in addition to
satisfaction of the conditions set forth in Section 5.02:
(a) Receipt by the Administrative Agent of the following financial
information:
(i) Annual audited consolidated financial statements for each of
the Borrowers and their Subsidiaries for fiscal year ended June 28, 1997,
including a consolidated balance sheet, and related consolidated statements
of operations, changes in stockholders' equity and cash flows, setting
forth in each case such information in comparative form for the previous
fiscal year and accompanied by an opinion of independent certified public
accountants of recognized national standing.
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(ii) Company-prepared quarterly consolidated financial
statements for each of the Borrowers and their Subsidiaries for the fiscal
quarter immediately preceding the Closing Date for which such information
is available, including a consolidated balance sheet, and related
consolidated statements of operations, changes in stockholders' equity and
cash flows, setting forth in each case such information in comparative form
for such periods during the previous fiscal year.
(iii) Consolidated pro forma financial statements for each of
the Borrowers and their Subsidiaries as set forth in the Form S-4 for
fiscal years ending June 30, 1996 and June 30, 1997.
(b) Receipt by the Administrative Agent of (i) the definitive Merger
Agreement, as amended and modified with all exhibits and schedules and
related agreements (including any share purchase, exchange or other
agreements) relating to the merger(s) between JP Foodservice, Inc. (or any
of its Subsidiaries, whether existing or newly formed) and Rykoff-Sexton,
Inc., and (ii) evidence of consummation of the Merger Transaction.
(c) Receipt by the Administrative Agent of the definitive corporate
capital and ownership structure after giving effect to the merger(s)
contemplated pursuant to the foregoing Merger Agreement (including
organizational documents, bylaws, shareholder agreements).
(d) Evidence of receipt by the Borrowers of all necessary approvals,
consents and authorizations (including the passage of all waiting periods)
from governmental authorities, shareholders, existing lenders and
noteholders, and other persons with respect to the Merger Transaction and
the transactions contemplated hereunder.
(e) No circumstances, events or conditions shall have occurred since
June 30, 1997, in the business, assets, operations, condition (financial or
otherwise) or prospects of the Borrowers and their respective Subsidiaries
or in the facts and information regarding such entities as represented to
date which has had or could reasonably be expected to have a Material
Adverse Effect.
(f) The absence of any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
authority that purports to affect the Borrowers or their respective
Subsidiaries or any transaction contemplated hereby or on the ability of
the Borrowers or their respective Subsidiaries to perform their obligations
under the Credit Documents.
(g) Evidence of pro forma compliance by the Borrowers and their
respective Subsidiaries with their existing financial obligations
(including compliance with financial covenants thereunder) after giving
effect to the initial advances hereunder and the mergers contemplated
pursuant to the Merger Agreement.
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(h) Receipt by the Administrative Agent of multiple counterparts of
this Agreement and the Guaranty Agreement executed and delivered by a duly
authorized officer of each of the parties thereto.
(i) Receipt by the Administrative Agent of certified copies of
articles of incorporation, bylaws, resolutions, incumbency certificates and
the like from the Company, each of the Borrowers and each of the
Guarantors.
(j) Receipt by the Administrative Agent of multiple counterparts of
legal opinions of counsel to the Company, the Borrowers and the Guarantors
dated as of the Closing Date in form and substance reasonably satisfactory
to the Administrative Agent and the Lenders.
(k) Payment to the Administrative Agent, the other Agents and the
Lenders all fees due and payable in connection with this Agreement.
SECTION 5.02. Each Extension of Credit.
------------------------
The obligations of each Lender (including the Swingline Lender and the
Issuing Lender) to make any Extension of Credit or to convert or extend any
Revolving Loan are subject to satisfaction of the following conditions in
addition to satisfaction on the Closing Date of the conditions set forth in
Section 5.01:
(a) (i) In the case of any Revolving Loan, the Administrative Agent
shall have received an appropriate Notice of Borrowing or Notice of
Extension/Conversion; (ii) in the case of any Swingline Loan, the Swingline
Lender shall have received an appropriate notice of borrowing in accordance
with the provisions of Section 2.02(b)(i); and (iii) in the case of any
Letter of Credit the Issuing Lender shall have received an appropriate
request for issuance of a Letter of Credit pursuant to Section 2.03(b);
(b) The representations and warranties set forth in Article IX shall
be true and correct in all material respects on and as of such date (except
to the extent that any such representations and warranties expressly relate
to an earlier date);
(c) No Default or Event of Default shall exist and be continuing
either prior to or immediately after giving effect thereto; and
(d) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof) or to the issuance of such Letter
of Credit, as the case may be, (i)(A) the sum of Revolving Loans
outstanding plus Swingline Loans outstanding plus LOC Obligations
---- ----
outstanding plus Competitive Loans outstanding, shall not exceed (B) the
----
Revolving Committed Amount; (ii) the Swingline Loans outstanding shall not
exceed the Swingline Committed Amount; (iii) the LOC Obligations shall not
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exceed the LOC Committed Amount; and (iv) the Competitive Loans outstanding
shall not exceed the Competitive Loan Maximum Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion,
each request for a Swingline Loan pursuant to Section 2.02(b)(i) and each
request for issuance of Letter of Credit pursuant to Section 2.03(b) and for a
Competitive Bid pursuant to Section 2.04(b) shall constitute a representation
and warranty by the Borrowers of the correctness of the matters specified in
Sections 5.02(b), (c) and (d) above.
ARTICLE VI.
FINANCIAL STATEMENTS; INFORMATION
SECTION 6.01. Reporting Requirements.
----------------------
The Borrowers hereby covenant and agree that, so long as this Agreement is
in effect or any Letter of Credit or under any amounts payable hereunder or any
of the other Credit Documents shall remain outstanding, and until all of the
Commitments shall have been terminated, the Borrowers will furnish, or cause to
be furnished, to the Administrative Agent and (except as otherwise provided)
each Lender:
(a) Quarterly Statements. As soon as available and in any event
--------------------
within 50 days after the end of each of the first three quarterly fiscal
periods in each fiscal year of the Company, (i) an unaudited consolidated
balance sheet of the Company (and upon request of the Lenders unaudited
statements for the Borrowers and their Restricted Subsidiaries) as at the
end of such quarterly fiscal period and the related unaudited consolidated
statements of operations and cash flows of the Company (and upon request of
the Lenders unaudited statements for the Borrowers and their Restricted
Subsidiaries) for such quarterly fiscal period and (in the case of the
second and third such quarterly fiscal period in each fiscal year) for the
portion of the fiscal year ended with the last day of such quarterly fiscal
period, setting forth in each case in comparative form the respective
figures for the corresponding period of the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and certified by the
principal financial officer of the Company (or the Borrowers) as fairly
presenting, in all material respects, the financial position of the
companies being reported on and the results of their operations and cash
flows except as to the absence of footnotes and subject to changes
resulting from normal year-end audit adjustments and (ii) comparable
consolidated financial statements of the Company and its Subsidiaries as at
the end of and for such quarterly period, prepared in the same manner as
such consolidated financial statements of the Company and its Subsidiaries
and similarly certified by the principal financial officer of the Company;
provided that delivery within the time period specified above (or, if
--------
later, within five days of timely filing with the Commission) of copies of
the Company's Quarterly Report on Form 10-Q for any quarterly fiscal period
prepared in compliance with the requirements therefor and filed with the
Commission shall be
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deemed to satisfy the requirements of subdivision (i) and (ii) of this
Section 6.01(a) for such period so long as such Quarterly Report contains
the applicable information required by this Section 6.01(a);
(b) Annual Statements. As soon as available and in any event within
-----------------
95 days after the end of each fiscal year of the Company, (i) a
consolidated balance sheet of the Company (and upon request of the Lenders
unaudited statements for the Borrowers and their Restricted Subsidiaries)
as of the end of such fiscal year and the related consolidated statements
of operations, changes in stockholders' equity and cash flows of the
Company (and upon request of the Lenders unaudited statements for the
Borrowers and their Restricted Subsidiaries) for such fiscal year, setting
forth in each case in comparative form the respective figures as of the end
of and for the previous fiscal year, all in reasonable detail and
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing selected by the Company and
reasonably satisfactory to the Required Lenders, which opinion shall not be
made in reliance upon the opinion of any other accountant (except for
opinions of other independent certified public accountants in respect of
financial statements of a Person which shall have become a Subsidiary or
the assets of which shall have been acquired by the Company or a Subsidiary
during such fiscal year), shall not contain any qualification as to scope,
and shall state that such financial statements present fairly, in all
material respects, the financial position of the companies being reported
on and their results of operations and their cash flows in conformity with
GAAP, that the audit of such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and that such accountants believe such audit provides a
reasonable basis for such opinion and (ii) comparable consolidated
financial statements of the Company and its Subsidiaries as at the end of
and for such fiscal year, prepared in the same manner as such consolidated
financial statements of the Company and accompanied by an opinion thereon
of independent certified public accountants meeting the requirements
therefor, set forth in the foregoing subdivision (b)(i); provided that, the
--------
delivery within the time period specified above (or, if later, within five
days of timely filing with the Commission) of the Company's Annual Report
on Form 10-K (together with the Company's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Exchange Act) for any fiscal
year prepared in compliance with the requirements therefor and filed with
the Commission shall be deemed to satisfy the requirements of subdivision
(i) and (ii) of this Section 6.01(b) for such year so long as such Annual
Report contains the applicable opinions and other information required by
this Section 6.01(b);
(c) Officers' Certificates. Concurrently with each delivery of
----------------------
financial statements of the Company and its Subsidiaries (and upon request
of the Borrowers and their Restricted Subsidiaries) pursuant to Section
6.01 (a) or (b), an Officers' Certificate, addressed to the Administrative
Agent and the Lenders:
(i) stating that the signatories thereto have reviewed the terms
of this Agreement and have made, or caused to be made under their
supervision, a review
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in reasonable detail of the transactions and conditions of the Company
and its Subsidiaries, or the Borrowers and their Restricted
Subsidiaries, as appropriate, during the accounting period covered by
such financial statements, and that such review has not disclosed the
existence during or at the end of such accounting period, and that
such signatories do not have knowledge of the existence as at the date
of such Officers' Certificate, of any condition or event which
constitutes a Default or an Event of Default, or, if to their
knowledge any such condition or event existed or exists, specifying
the nature and period of existence thereof and what action has been
taken or is taking or proposed to be taken with respect thereto;
(ii) setting forth (A) as of the date of the consolidated
balance sheet included in such financial statements, the Fixed Charge
Coverage Ratio and the Total Debt Ratio, and the respective amounts of
Total Debt, Consolidated Net Worth, the Net Worth Minimum,
Consolidated Net Tangible Assets, Priority Debt, Attributable Debt,
and the aggregate principal amount outstanding of all Debt of
Restricted Subsidiaries, (B) the respective amounts of Net Income
Available for Fixed Charges, Consolidated Fixed Charges and Operating
Cash Flow for the period of four consecutive fiscal quarters of the
Borrowers ended on such date, and (C) the amount available as at the
conclusion of the accounting period ended on such date for the making
of Restricted Payments and Restricted Investments in compliance with
Section 8.05 and the aggregate unliquidated amount as of such date of
all Investments of the Borrowers and their Restricted Subsidiaries of
the character described in subdivision (g) of the definition of
"Restricted Investments" set forth in Section 1.01; and
(iii) setting forth facts or computations in reasonable detail
demonstrating compliance during and at the end of such accounting
period with the covenants and restrictions contained in Section 8.01,
Section 8.02, Section 8.03, Section 8.04, Section 8.05 and Section
8.07(f);
(d) Accountant's Certificates. Concurrently with each delivery of
-------------------------
annual financial statements pursuant to Section 6.01(b), a written statement,
addressed to the Company from the independent certified public accountants
referred to in Section 6.01(b) who have reported on such financial statements,
substantially to the following effects (with only such variations as reflect the
then current generally applicable policy of such accountants with respect to
statements of the same or a similar import required pursuant to comparable
financing documents and which do not materially alter the substantive import of
such statement):
(i) that their audit has included a reading of the terms of this
Agreement sufficient to enable them to make the statement referred to
in Section 6.01(d)(iii) (it being understood that no audit procedures,
other than those required by generally accepted auditing standards,
shall be required);
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(ii) that, in connection with their audit, except as set forth
in such written statement, nothing came to their attention which
caused them to believe that there exists at the date of such written
statement any condition or event which constitutes an Event of Default
or Default, insofar as related to accounting matters reflected in the
financial statements that were subject to auditing procedures during
the course of the audit required pursuant to Section 6.01(b) and, in
the case of any such Event of Default or Default which shall have come
to their attention, specifying, to the extent determined by such
accountants in connection with such audit, the nature and period of
existence thereof (it being understood that such accountants shall not
be liable, directly or indirectly, for any failure to obtain knowledge
of any Event of Default or Default or the period of existence thereof
unless such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit); and
(iii) that they have read the Officers' Certificate delivered in
connection with such financial statements pursuant to Section 6.01(c)
and that, in connection with their audit, except as set forth in such
written statement, nothing came to their attention that caused them to
believe that the matters set forth in such Officers' Certificate
pursuant to Sections 6.01(c)(ii) and (iii) insofar as they relate to
accounting matters reflected in the financial statements that were
subject to auditing procedures during the course of the audit required
pursuant to Section 6.01(b), have not been properly stated in
accordance with the terms of this Agreement;
(e) Commission and Other Reports. Promptly (and in any event within
----------------------------
five Business Days) after they become available, to the Administrative Agent
only, copies of (i) all financial statements, reports, notices, proxy statements
and other information sent or made available generally by the Company or a
Borrower to any class of its security holders (other than, in the case of the
Borrowers, the Company) or by any Restricted Subsidiary of a Borrower to any
class of its security holders (other than the Borrowers or another such
Subsidiary), (ii) all regular and periodic reports (including reports on Form 8-
K) and all registration statements (other than those on Form S-8 or a successor
form relating to the registration of securities pursuant to an employee benefit
plan) and prospectuses filed by the Company, the Borrowers or any Restricted
Subsidiaries with any securities exchange, the National Association of
Securities Dealers or with the Commission, and (iii) all press releases and
other statements made available generally by the Company, the Borrowers or any
Restricted Subsidiaries to the public concerning material developments in the
business of the Company, the Borrowers or any such Restricted Subsidiary;
(f) Audit Reports. Promptly (and in any event within five Business
-------------
Days) after receipt thereof, copies of all reports submitted to a Borrower or
any of its Restricted Subsidiaries by independent certified public accountants
in connection with any annual audit of the Borrowers or any Restricted
Subsidiary made by such accountants, including,
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without limitation, any comment letter submitted by such accountants in
connection with any such audit;
(g) Defaults, etc. Promptly (and in any event within five Business
--------------
Days) after any Responsible Officer of a Borrower obtains knowledge of any
condition or event which constitutes a Default or an Event of Default, or that
the Administrative Agent or any Lender has given any notice to the Borrowers or
any of their Restricted Subsidiaries or taken any other action with respect to a
claimed default under or in respect of any Debt referred to in Section 10.01(e)
or 10.01(f) or with respect to the occurrence or existence of any event or
condition of the type referred to in Section 10.01(g) or 10.01(h), an Officers'
Certificate specifying in reasonable detail the nature and period of existence
of such actual or claimed Default, Event of Default, default, event or
condition, and what action the Borrowers have taken or are taking or propose to
take with respect thereto;
(h) ERISA. Promptly (and in any event within five Business Days)
-----
after any Borrower Group Member (i) knows of the occurrence of any Termination
Event, (ii) receives with respect to any Multiemployer Plan notice as prescribed
in ERISA of any withdrawal liability assessed against any Borrower Group Member
or of a determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA), (iii) knows that a
prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of
the Code) for which a statutory or administrative exemption is not available or
a breach of fiduciary responsibility has occurred in connection with which any
Borrower Group Member could reasonably be subject to any material liability
under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code,
or under any agreement or other instrument pursuant to which such Borrower Group
Member has agreed or is required to indemnify any Person against any such
liability or (iv) knows that there has been a material adverse change in the
funding status of any Plan or Multiemployer Plan, a description of such event or
a copy of such notice and a statement by the principal financial officer of the
appropriate Borrower briefly setting forth the details regarding such event or
condition and the action, if any, which has been or is being taken or is
proposed to be taken by such Borrower or any Borrower Group Member with respect
thereto;
(i) Litigation, etc. Promptly (and in any event within five Business
----------------
Days) after any Responsible Officer of a Borrower obtains knowledge of any
litigation, administrative proceeding or judgment (i) relating to the Borrowers
or any of their Restricted Subsidiaries (whether or not considered by the
Borrowers to be covered by insurance) which could, if adversely determined, have
a Material Adverse Effect, or (ii) relating in any way to this Agreement or any
of the other Credit Documents, an Officers' Certificate specifying in reasonable
detail the facts and circumstances surrounding such litigation, proceeding or
judgment;
(j) Subsidiary Designation. Promptly (and in any event within five
----------------------
Business Days) after the designation by the Board of Directors of any Subsidiary
as
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an Unrestricted Subsidiary, or any redesignation by the Board of Directors
of a Restricted Subsidiary as an Unrestricted Subsidiary or of an
Unrestricted Subsidiary as a Restricted Subsidiary, notice thereof
accompanied by an Officers' Certificate stating that such designation or
redesignation has been made in compliance with the definition of
"Restricted Subsidiary" or "Unrestricted Subsidiary", whichever shall be
applicable, set forth in Section 1.01, and, in the case of any designation
or redesignation of a Subsidiary as an Unrestricted Subsidiary, setting
forth the name of each other Subsidiary which has become an Unrestricted
Subsidiary as a result thereof;
(k) Modifications to Indenture or Indenture Notes. Promptly (and in
---------------------------------------------
any event within five Business Days) after the date on which any amendment
or modification of any term or provision of the Indenture or of any of the
Indenture Notes, or any waiver of compliance with any such term or
provision, has become effective, copies of the instruments pursuant to
which such amendment, modification or waiver was effected; and
(l) Requested Information. Promptly upon request therefor, such other
---------------------
information as to the Business or Condition of the Borrowers or their
Restricted Subsidiaries as may from time to time be reasonably requested by
the Administrative Agent or the Required Lenders.
ARTICLE VII.
INSPECTION OF PROPERTIES AND BOOKS
SECTION 7.01. Inspection Rights of Administrative Agent and Lenders.
-----------------------------------------------------
The Borrowers hereby covenant and agree that, so long as this Agreement is
in effect or any Letter of Credit or any amounts payable hereunder or under any
of the other Credit Documents shall remain outstanding, and until all of the
Commitments shall have been terminated, officers or designated representatives
of the Administrative Agent or any Lender may visit and inspect any of the
properties of the Borrowers and their Restricted Subsidiaries, including their
respective books of account, records, reports and other papers, make copies and
extracts therefrom, and discuss their affairs, finances and accounts with their
respective officers and employees (with the consent of an appropriate officer)
and, so long as a Responsible Officer is present, with their independent public
accountants (and the Borrowers hereby authorize and direct each such officer,
employee (with the consent of an appropriate officer) and independent public
accountant to engage in such discussions and hereby undertakes to cause a
Responsible Officer to be present at all reasonable times for purposes of such
discussions with said accountants), all at such reasonable times and as often as
may be reasonably requested. All expenses incurred in connection with any such
visit, inspection or other exercise of rights by officers or designated
representatives of the Administrative Agent or any Lender, as applicable,
pursuant to this Section shall be borne by the Borrowers except that, if such
visit, inspection or other exercise of rights is undertaken at a time when no
Default or Event of Default shall be continuing, all such expenses incurred by
the Administrative Agent or such Lender, as applicable, in connection therewith
shall, subject to the terms of Section 11.09, be for the account
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of the Administrative Agent or such Lender, as applicable (it being understood
and agreed that the fees of any attorney, accountant or other professional
employed by the Borrowers in connection with any such visit, inspection or other
exercise shall in any event be for the Borrowers' account).
ARTICLE VIII.
COVENANTS
The Borrowers hereby covenant and agree that from and after the Closing
Date and so long as this Agreement is in effect or any Letter of Credit or any
amounts payable hereunder or under any of the other Credit Documents shall
remain outstanding, and until all of the Commitments shall have been terminated:
SECTION 8.01. Maintenance of Certain Financial Conditions.
-------------------------------------------
(a) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed
---------------------------
Charge Coverage Ratio as of any Determination Date occurring during the periods
set forth below to be less than:
Closing Date to June 29, 1998 1.5:1.0
June 30, 1998 and thereafter 1.75:1.0
(b) Consolidated Net Worth. The Borrowers will not permit Consolidated Net
----------------------
Worth as of any date to be less than the Net Worth Minimum as of such date.
(c) Total Debt Ratio. The Borrowers will not permit the Total Debt Ratio
----------------
as of any Determination Date occurring during the periods set forth below to
exceed:
Closing Date to September 29, 1998 5.0:1.0
September 30, 1998 to September 29, 1999 4.5:1.0
September 30, 1999 to September 29, 2000 4.0:1.0
September 30, 2000 and thereafter 3.75:1.0
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt.
-------------------------------------------
(a) The Borrowers will not, and will not permit any Restricted Subsidiary
to, incur any Debt on any date if immediately after giving effect to such
incurrence and the incurrence or retirement by the Borrowers and their
Restricted Subsidiaries of any other Debt on such date the Total Debt Ratio
would exceed the amount applicable under Section 8.01(c) for the period during
which such date occurs.
(b) The Borrowers will not permit any Restricted Subsidiary to incur any
Debt, except that any Restricted Subsidiary may incur and (subject to Section
8.01(c)) remain liable in respect of Debt if, on and as of the date on which
such Restricted Subsidiary proposes to incur
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such Debt and immediately after giving effect to such incurrence and the
incurrence or retirement by the Borrowers and their Restricted Subsidiaries of
any other Debt on such date, and to the application of the proceeds of all such
incurred Debt, the Priority Debt Amount shall not exceed 10% of Consolidated Net
Tangible Assets (the amount of Consolidated Net Tangible Assets for purposes
hereof being determined (i) as of such date, if an Officers' Certificate dated
as of such date shall have been provided to the Administrative Agent and the
Lenders providing facts or computations in reasonable detail demonstrating
compliance with the terms of this Section 8.02(b) in connection with the
proposed incurrence of Debt on such date, or (ii) if no such Officers'
Certificate shall have been provided to the Administrative Agent and the Lenders
in connection with the incurrence of such Debt, as of the most recent
Determination Date prior to the date of incurrence of such Debt with respect to
which the Borrowers shall have delivered the Required Financial Information).
(c) For purposes of the foregoing Sections 8.02(a) and (b), (i) the term
"incur", when used with respect to any Debt, shall mean to directly or
indirectly create, incur, assume, agree to purchase or provide funds in respect
of, or otherwise become liable (by way of Guaranty or otherwise) in respect of
such Debt, and the term "incurrence" shall have a correlative meaning, (ii) in
the event the Borrowers or any Restricted Subsidiary shall extend, renew, refund
or refinance any Debt, the Borrowers or such Restricted Subsidiary shall be
deemed to have incurred such Debt at the time of such extension, renewal,
refunding or refinancing, and (iii) any Person designated, redesignated or
otherwise becoming a Restricted Subsidiary at any time after the date of this
Agreement shall be deemed to have incurred all of its outstanding Debt at such
time.
SECTION 8.03. Liens.
-----
The Borrowers will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any character of the Borrowers or any
of their Restricted Subsidiaries (whether held on the date hereof or hereafter
acquired) or any interest therein or any income or profits therefrom except:
(a) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies either not yet due or the
payment of which is not at the time required by Section 8.12;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Persons incurred in the ordinary
course of business for sums either not yet due or the payment of which is
not at the time required by Section 8.12;
(c) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
bids, government contracts,
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performance and return-of-money bonds and other similar obligations
(exclusive in any case of obligations incurred in connection with the
borrowing of money or the obtaining of advances or credit);
(d) Liens incidental to the conduct of business or to the ownership of
property of a character which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not, individually or in the
aggregate, interfere with the ordinary conduct of the business of a
Borrower or any of its Restricted Subsidiaries or detract from the value or
use of the properties subject to any such Liens;
(e) any attachment, judgment or other similar Lien arising in
connection with court proceedings, so long as (i) the execution or other
enforcement of such Lien is effectively stayed and the claims secured
thereby are being actively contested in good faith and by appropriate
proceedings diligently conducted and effective to prevent the forfeiture or
sale of any property of a Borrower or any Restricted Subsidiary or any
interference with the ordinary use thereof by a Borrower or any Restricted
Subsidiary, and (ii) such reserve or other appropriate provision, if any,
in the amount and of the type as shall be required by GAAP shall be
maintained therefor;
(f) Liens on assets of any Borrower or Restricted Subsidiary securing
Debt or other obligations of such Borrower or Restricted Subsidiary owing
to a Borrower or to a Restricted Subsidiary;
(g) Liens described on Schedule IX existing on the date of this
-----------
Agreement and securing the Debt described thereon as being secured by such
Liens; provided that (i) no such Lien shall at any time be extended to or
--------
cover any property of a Borrower or any Restricted Subsidiary other than
the property subject thereto on the date hereof and (ii) the principal
amount of the Debt secured by such Liens shall not be increased;
(h) Liens securing obligations incurred in connection with IDB Debt,
provided that no such Lien shall at any time extend to or cover any
--------
property of a Borrower or any Restricted Subsidiary other than the
equipment and facilities acquired or constructed with the proceeds of such
IDB Debt, real property appurtenant to such facilities, and proceeds of
such equipment, facilities and real property;
(i) Liens (including Capital Leases) created solely to secure the
deferred purchase price of fixed assets useful and intended to be used in
carrying on the business of a Borrower and its Restricted Subsidiaries
acquired or constructed by a Borrower or any Restricted Subsidiary after
the date hereof, or any Lien (including a Capital Lease) created to secure
Debt incurred solely for the purpose of financing the acquisition or
construction, as the case may be, of any such asset (if such Debt is
incurred at the time of or within 180 days after such acquisition, or the
completion of such construction) or any Lien existing on acquired assets at
the time of acquisition thereof, or, in the case of any
72
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Person which hereafter becomes a Restricted Subsidiary, any Lien in respect
of its assets existing at the time such Person becomes a Restricted
Subsidiary, provided that:
--------
(i) in the case of an acquisition of assets or a Person
becoming a Restricted Subsidiary, such Lien was not created in
contemplation of such event,
(ii) no such Lien shall at any time extend to or cover any
asset of a Borrower or any of its Restricted Subsidiaries other than
the acquired assets on which it was originally imposed and
improvements thereto and proceeds thereof, and
(iii) at the time of and immediately after giving effect to
the creation or incurrence of each such Lien, the aggregate principal
amount of all Debt secured by all such Liens on any such asset shall
not exceed an amount equal to the lesser of (x) the purchase price of
such asset (including, for purposes of determining such purchase
price, the principal amount of any pre-existing Debt secured by any
such Liens, whether or not a Borrower or a Restricted Subsidiary has
any personal liability with respect thereto) and (y) the fair market
value of such asset (as determined by the Board of Directors) at such
time;
(j) Liens in favor of a Receivables Financing SPC or Receivables
Financier created or deemed to exist in connection with a Permitted
Receivables Financing (including any related filings of any financing
statements), but only to the extent that any such Lien relates to the
applicable receivables and related property (or percentage interests
therein) actually sold, contributed, financed or otherwise conveyed or
pledged pursuant to such transaction; and
(k) Liens in addition to those permitted by the foregoing provisions
of this Section 8.03 securing Debt of a Borrower or a Restricted Subsidiary
or satisfying cash collateral requirements hereunder; provided that,
--------
immediately after giving effect to the creation, incurrence or assumption
of each such additional Lien, the Priority Debt Amount shall not exceed 10%
of Consolidated Net Tangible Assets (the amount of Consolidated Net
Tangible Assets for purposes hereof being determined (i) as of the date of
creation, incurrence or assumption of such Lien, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.03(k) in connection with the proposed creation, incurrence or assumption
of such Lien on such date, or (ii) if no such Officers' Certificate shall
have been provided to the Administrative Agent and the Lenders in
connection with the creation, incurrence or assumption of such Lien, as of
the most recent Determination Date prior to the date of creation,
incurrence or assumption of such Lien with respect to which the Borrowers
shall have delivered the Required Financial Information).
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For all purposes of this Section 8.03, (A) Liens existing on or with
respect to any property of any Person at the time it is designated or
redesignated or otherwise becomes a Restricted Subsidiary shall be deemed to
have been created at the time it becomes a Restricted Subsidiary, (B) any
extension, renewal, refunding or refinancing of any Lien by a Borrower or any
Restricted Subsidiary shall be deemed to be an incurrence of such Lien at the
time of such extension, renewal, refunding or refinancing, and (C) any Lien
existing on any property at the time it is acquired by a Borrower or any
Restricted Subsidiary shall be deemed to have been created at the time of such
acquisition.
SECTION 8.04. Sale Leasebacks.
---------------
The Borrowers will not, and will not permit any Restricted Subsidiary to,
enter into any Sale Leaseback unless
(a) immediately after giving effect to such Sale Leaseback, the
Priority Debt Amount shall not exceed 10% of Consolidated Net Tangible
Assets (the amount of Consolidated Net Tangible Assets for purposes hereof
being determined (i) as of the date of such Sale Leaseback, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.04 in connection with such Sale Leaseback, or (ii) if no such Officers'
Certificate shall have been provided to the Administrative Agent and the
Lenders in connection with such Sale Leaseback, as of the most recent
Determination Date prior to the date of such Sale Leaseback with respect to
which the Borrowers shall have delivered the Required Financial
Information); or
(b) the net proceeds of such Sale Leaseback are reinvested in
property or assets, or such proceeds are otherwise applied, in compliance
with Section 3.02(b).
SECTION 8.05. Restricted Payments; Restricted Investments.
-------------------------------------------
The Borrowers will not, directly or indirectly (through a Restricted
Subsidiary or otherwise), declare, order, pay, distribute, make, or set apart
any sum or property for any Restricted Payment, and the Borrowers will not, and
will not permit any Restricted Subsidiary to, make or become obligated to make
any Restricted Investment, unless, both at the time of and immediately after
effect has been given to any such proposed action:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) the aggregate amount of
(i) all sums and property included in all Restricted Payments
directly or indirectly declared, ordered, paid, distributed, made or
set apart by the Borrowers during the period (taken as one accounting
period) from and including
74
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the Closing Date to and including the date of such proposed action
(the "Computation Period"), plus
------------------ ----
(ii) the aggregate amount (at original cost) of all Restricted
Investments of the Borrowers and all Restricted Subsidiaries made
during the Computation Period and all commitments for such Restricted
Investments made by a Borrower or any Restricted Subsidiary
outstanding on such date,
shall not exceed the sum of
(A) $10,000,000, plus
----
(B) 50% (or, in the case of a net loss for the Computation
Period taken as a whole, minus 100%) of Consolidated Net Income for
-----
the Computation Period, plus
----
(C) the aggregate amount of the net cash proceeds received by
the Borrowers and their respective Restricted Subsidiaries during the
Computation Period from the sale of capital stock of the Borrowers and
their Restricted Subsidiaries, from contributions to the common equity
capital of the Borrowers and their Restricted Subsidiaries, and as
consideration for the issuance during the Computation Period of Debt
of the Borrowers and their Restricted Subsidiaries convertible into
their respective capital stock, but only to the extent that any such
Debt has been converted into such capital stock during the Computation
Period, plus
----
(D) to the extent not included in Consolidated Net Income for
the Computation Period, the aggregate amount of the cash payments
received by the Borrowers and their Restricted Subsidiaries during the
Computation Period representing net returns of capital on Restricted
Investments made during the Computation Period.
For all purposes of this Section 8.05, (1) the amount involved in any
Restricted Payment directly or indirectly declared, ordered, paid, distributed,
made or set apart in property, and the amount of any Restricted Investment made
through the transfer of property, shall be deemed to be the greater of (x) the
fair market value of such property (as determined by the Board of Directors) at
the time of such action and (y) the net book value thereof on the books of the
Borrowers or any of their Restricted Subsidiaries (as determined in accordance
with GAAP), in each case as determined on the earliest of the dates such
Restricted Payment is declared, ordered, paid, distributed, made or set apart or
the date such Restricted Investment is made or committed to be made, as the case
may be, and (2) all Investments of any Person existing immediately after such
Person becomes a Restricted Subsidiary which would be Restricted Investments if
made by such Person while subject to the provisions of this Agreement shall be
deemed to be Restricted Investments and to have been made at the time such
Person becomes a Restricted Subsidiary.
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The Borrowers will not pay any dividend which they have not declared nor
will they declare any dividend (other than dividends payable solely in shares of
their common stock) on any shares of any class of capital stock which is payable
more than 60 days after the date of declaration thereof.
The provisions of this Section 8.05 shall not, in any event, apply to
Permitted Payments or IDB Debt permitted hereunder, or be construed as limiting
the ability of JPFDI to pay dividends to RSI.
SECTION 8.06. Subsidiary Stock and Debt.
-------------------------
Without limiting the provisions of, and subject to, Section 8.02, the
Borrowers will not, and will not permit any Restricted Subsidiary to, issue,
sell, assign or otherwise dispose of or part with control of, any shares of
stock, Debt or other securities (or warrants, rights or options to acquire stock
or other securities), in each case of any Restricted Subsidiary, except to a
Borrower or a Predominantly Owned Restricted Subsidiary and except that:
(a) all shares of stock and all Debt and other securities of any
Restricted Subsidiary at the time owned by or owed to a Borrower and all
Restricted Subsidiaries may be sold as an entirety for a consideration
which represents the fair market value (as determined by the Board of
Directors) at the time of sale of the shares of stock and Debt and other
Securities so sold; or
(b) less than all shares of stock of any Restricted Subsidiary at the
time owned by a Borrower and all Restricted Subsidiaries may be sold, or a
Restricted Subsidiary may issue shares of its stock to a Person other than
the Borrowers or a Predominantly Owned Restricted Subsidiary, in either
case for a consideration which represents the fair market value thereof (as
determined by the Board of Directors) at the time of sale or issuance, as
the case may be, of such shares, if, immediately after giving effect to
such transaction, such Restricted Subsidiary shall be a Predominantly Owned
Restricted Subsidiary, or
(c) Debt of a Restricted Subsidiary at the time owed to a Borrower or
a Restricted Subsidiary may be sold to a third Person in a transaction not
described in Section 8.06(a) for a consideration at least equal to the
principal amount of such Debt plus interest accrued and payable thereon (to
the extent such interest is not payable to the Borrowers or a Restricted
Subsidiary following such sale);
provided, however, that it shall be a condition to the consummation by the
- -------- -------
Borrowers or any Restricted Subsidiary of any transaction described in the
foregoing Sections 8.06(a), (b) and (c) that (i) in the case of any sale or
issuance of stock of a Restricted Subsidiary described in Sections 8.06(a) or
(b), the assets of such Restricted Subsidiary represented by the equity interest
to be so sold or issued are such that the sale of such assets would then be
permitted by Section 8.07 (in which case such transaction shall be considered
and deemed a disposition of assets for purposes of Section 8.07), and (ii) in
the case of any such transaction described in Sections 8.06
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(a), (b) or (c), immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing.
The provisions of this Section 8.06 shall not, in any event, apply to IDB
Debt permitted hereunder.
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc.
------------------------------------------
The Borrowers will not, and will not permit any of their Restricted
Subsidiaries to, voluntarily liquidate or dissolve, or consolidate or merge with
or into any other Person, or permit any other Person to consolidate with or
merge with or into it, or participate in a share exchange with or sell, lease,
transfer, contribute or otherwise dispose of any of its assets to any other
Person, except that, subject in any event to compliance with the last paragraph
of this Section 8.07:
(a) a Borrower and/or any Restricted Subsidiary may sell or otherwise
dispose of its assets (i) in the ordinary course of its business as such
business is permitted to be conducted in compliance with Section 8.09, (ii)
in a Permitted Receivables Financing and (iii) in a Tax Reduction
Transaction; or
(b) (i) any Restricted Subsidiary may (A) consolidate with or merge
into a Borrower or a Wholly Owned Restricted Subsidiary if such Borrower or
such Wholly Owned Restricted Subsidiary shall be the continuing or
surviving corporation or (B) consolidate or merge with any other
corporation if such Restricted Subsidiary shall be the continuing or
surviving corporation and (ii) any Restricted Subsidiary may consolidate
with or merge into any other Restricted Subsidiary; or
(c) any Restricted Subsidiary may sell, lease, transfer, contribute or
otherwise dispose of its assets in whole or in part to a Borrower or a
Wholly Owned Restricted Subsidiary or any other Restricted Subsidiary and
may, following any such disposition in whole, liquidate and dissolve; or
(d) a Borrower may consolidate or merge with any other Person
(including the other Borrower) if such Borrower (or the other Borrower)
shall be the continuing or surviving corporation; or
(e) a Borrower may consolidate with or merge into, or sell, transfer
or otherwise dispose of its assets as an entirety or substantially as an
entirety, to any other Person (a "Successor"; any such consolidation,
---------
merger or disposition of assets being hereinafter referred to as a
"Successor Transaction"), but only if such Successor (i) is a solvent
---------------------
corporation duly organized, validly existing and in good standing under the
laws of the United States of America or a state thereof and (ii) expressly
assumes, not later than the consummation of such Successor Transaction,
pursuant to a written instrument satisfactory in form, scope and substance
to the Lenders, the due and punctual payment of all principal, interest and
Fees in accordance with the terms hereof and of the other Credit
77
<PAGE>
Documents to which such Borrower is a party, and the due and punctual
performance and observance of all other obligations of such Borrower under
this Agreement, an executed counterpart of which instrument shall have been
furnished to each of the Lenders together with a favorable opinion of
counsel satisfactory to each Lender covering such legal matters relating to
such Successor, the Successor Transaction, such assumption and such
instrument as such holder may reasonably request; or
(f) the Borrowers and their Restricted Subsidiaries, in addition to
making any sale or disposition permitted by the foregoing provisions of
this Section, may sell or otherwise dispose of property and assets for fair
consideration (as determined by the Board of Directors) at the time of such
sale, subject to the commitment reduction and mandatory prepayment
provisions of Section 3.02(b)(ii).
No consolidation, merger, sale, lease, transfer, contribution or other
disposition referred to in Sections 8.07(b) through (f) shall be permitted
unless (x) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing and (y) upon giving
effect to any such transaction (to the extent required in the definition of
"Operating Cash Flow" set forth in Section 1.01) as of the first day of the four
consecutive fiscal quarters ended as of the most recent Determination Date
occurring prior to the date of such proposed transaction with respect to which
the Borrowers shall have delivered the Required Financial Information, no
Default or Event of Default would have occurred as the result of a violation of
Section 8.01(c) on such Determination Date. Nothing contained in this Section
shall permit (i) the disposition of assets consisting of, stock or similar
interests or other securities (or warrants, rights or options to acquire stock
or other securities) of any Restricted Subsidiary unless such disposition, if
subject to Section 8.06, is also permitted by Section 8.06, or (ii) the
disposition of any Transferred Assets (or any interest therein) by the Borrowers
or any Restricted Subsidiary to any Unrestricted Subsidiary except in connection
with a Permitted Receivables Financing.
SECTION 8.08. Transactions with Affiliates; Tax Consolidation.
-----------------------------------------------
(a) The Borrowers will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or be a party to any transaction or
arrangement (including, without limitation, the contribution, transfer,
purchase, sale or exchange of property, or the rendering of any service, or the
payment of management or other service fees) with any Affiliate unless such
transaction or arrangement is entered into upon terms that are fair and
reasonable and no less favorable to the Borrowers or such Restricted Subsidiary,
as the case may be, than those which might be obtained at the time on an arm's-
length basis from any Person which is not such an Affiliate; provided that,
--------
subject to the terms of Section 9.13, the foregoing restrictions shall not apply
to (i) any transaction between one or more of the Company, the Borrowers and the
Restricted Subsidiaries, on the one hand, with one or more of the Company, the
Borrowers and the Restricted Subsidiaries, on the other hand or (ii)
transactions effected pursuant to and in compliance with the terms of the
agreements listed on Schedule X, in the case of each thereof, as the same shall
----------
be in effect on and as of the Closing Date (collectively, the "Existing
--------
Affiliate Agreements"). Nothing contained in this Section shall permit the
- --------------------
disposition of any accounts
78
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receivable (or any interest therein) by the Borrowers or any Restricted
Subsidiary to any Unrestricted Subsidiary except in connection with a Permitted
Receivables Financing.
(b) The Borrowers will not, and will not permit any of their Subsidiaries
to, file or consent to the filing of any consolidated income tax return with the
Company or any other Person (other than a Borrower or a Subsidiary of either
Borrower) except that the Borrowers or any such Subsidiary may file or consent
to the filing of a consolidated United States federal income tax return with the
Company if (but only if) the Company shall have entered into a valid and binding
agreement to reimburse to the Borrowers, or to allow the Borrowers to retain, a
sum equal to the amount by which the income taxes of the consolidated group of
corporations of which the Borrowers are a part are reduced as a result of the
inclusion of the Borrowers in the consolidated return of such group; provided,
--------
that the Borrowers may agree to pay the Company an amount not to exceed the
amount of income taxes which would have been payable by the Borrowers if they
had filed their income tax returns on a basis not consolidated with the Company,
subject to appropriate adjustment in the event that the amount of such income
taxes is increased or reduced by reason of any audit by a taxing authority or
any successful claim for a refund, any such payment or reimbursement to be
computed in accordance with applicable tax law, rules and regulations, and to be
made at the time of payment or refund of any such income taxes.
SECTION 8.09. Nature of Business.
------------------
The Borrowers and their Restricted Subsidiaries will remain principally
engaged in the business of broadline distribution of food and related products
to restaurants and other food service establishments, and will not engage in any
line of business in which they are not currently engaged to such an extent that
the business of the Borrowers and their Restricted Subsidiaries taken as a whole
would be fundamentally different in nature from the business of the Borrowers
and their Restricted Subsidiaries on the date hereof. As of the Closing Date,
the Borrowers and the Restricted Subsidiaries are also engaged in the
manufacturing and importing of such products and the design, construction and
installation of equipment in restaurants and other food service establishments.
SECTION 8.10. Books and Records; Fiscal Year.
-------------------------------
The Borrowers will, and will cause each of their Subsidiaries to, (a) keep
proper books of record and account in which full, true and correct entries will
be made of all its material business dealings and transactions in accordance
with GAAP applied on a consistent basis and (b) maintain a system of accounting
established and administered in accordance with GAAP, and set aside on their
books from their earnings for each fiscal period all proper reserves, accruals
and provisions which, in accordance with GAAP, should be set aside from such
earnings in connection with their business, including, without limitation,
provisions for depreciation, obsolescence and/or amortization, and accruals for
taxes for such period. The Borrowers will give the Administrative Agent and
each of the Lenders advance written notice of any change in the basis on which
the fiscal year of the Borrowers or any Restricted Subsidiary is determined,
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provided that no such change shall result in either Borrower having a fiscal
- --------
year longer than twelve (12) fiscal months.
SECTION 8.11. Corporate Existence; Licenses.
-----------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, do or cause to be done all things necessary to preserve and keep in full
force and effect their corporate existence (except as otherwise permitted by
Section 8.07) and their rights (charter and statutory) and Licenses; except
that, subject to compliance with Sections 8.06 and 8.07 and the next succeeding
sentence of this Section, the rights and Licenses of the Borrowers or any of
their Restricted Subsidiaries may be abandoned, modified or terminated if in the
judgment of the Board of Directors such abandonment, modification or termination
is in the best interests of the Borrowers and their Restricted Subsidiaries and
is not disadvantageous to the Lenders. The Borrowers will, and will cause each
of their Restricted Subsidiaries to, in any event maintain the validity of all
Licenses necessary in any material respect for the conduct of the business of
the Borrowers and their Restricted Subsidiaries as now conducted and as proposed
to be conducted.
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc.
-----------------------------------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, promptly pay and discharge or cause to be promptly paid and discharged when
due and before the same shall become delinquent (a) all taxes, assessments and
governmental charges or levies imposed upon them or upon their income or profits
or upon any of their franchises, Licenses, business or property, or upon any
part thereof, and (b) all claims of landlords, carriers, warehousemen,
mechanics, materialmen and other similar Persons for labor, materials, supplies
and rentals which, if unpaid, might by law become a Lien or charge upon any of
their property; provided, however, that the failure of the Borrowers or any of
-------- -------
their Restricted Subsidiaries to pay any such tax, assessment, charge, levy or
claim shall not constitute a Default hereunder if and for so long as the amount,
applicability or validity thereof shall concurrently be contested in good faith
by appropriate and timely actions or proceedings diligently pursued, and if such
reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made therefor and the consequences of such failure shall not
have, either alone or taken together with the consequences of all other such
failures, a Material Adverse Effect.
SECTION 8.13. Maintenance of Properties.
-------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, maintain and keep, or cause to be maintained and kept, in good repair,
working order and condition (ordinary wear and tear excepted) all properties
(whether owned or leased) used or useful in the business of the Borrowers and
their Restricted Subsidiaries, and from time to time make or cause to be made
all necessary and proper repairs, renewals, replacements and improvements
thereof so that the business carried on in connection therewith may be properly
and advantageously conducted consistent with past practices of the Borrowers and
their Restricted Subsidiaries.
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SECTION 8.14. Insurance.
---------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, keep adequately insured, by financially sound and reputable insurers, all of
their respective property of a character customarily insured against by prudent
corporations engaged in the same or a similar business and similarly situated
against loss or damage of the kinds and in amounts customarily insured against
by such corporations, and with deductibles or coinsurance no greater than is
customary, and carry (or cause their respective suppliers to carry, under
arrangements pursuant to which a Borrower or its Restricted Subsidiary is named
an additional insured), with such insurers in customary amounts, such other
insurance, including public liability insurance and insurance against claims for
any violation of applicable law, as is customarily carried by prudent
corporations of established reputation engaged in the same or a similar business
and similarly situated; provided, however, that the Borrowers and their
-------- -------
Restricted Subsidiaries may, consistently with their practices prior to the date
hereof, self-insure with respect to certain categories of insurance (including,
but not limited to, property and workers' compensation claims) so long as (i)
the respective amounts of such categories of self insurance for the Borrowers
and all Restricted Subsidiaries shall not exceed the amounts thereof from time
to time recommended to the Borrowers by an independent firm of risk management
consultants of recognized standing and (ii) all reserves required in accordance
with GAAP to be maintained by the Borrowers and their Restricted Subsidiaries in
respect of all such self insurance (including self insurance in effect resulting
from co-insurance, deductibility or similar clauses) shall be maintained through
a security arrangement as required by the respective insurer (which may include
the procurement by the Borrowers, as account party, of Letters of Credit issued
hereunder), or other arrangements, not to include cash collateral, in compliance
with Section 8.03; provided, that if Letters of Credit are offered to any such
--------
insurer but such insurer requires cash collateral in lieu of such Letters of
Credit, then such other arrangements may include cash collateral.
SECTION 8.15. Compliance with Laws.
--------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, promptly comply in all material respects with all laws, statutes, rules,
regulations and ordinances and all Orders of, and restrictions imposed by, any
court, arbitrator or Governmental Body in respect of the conduct of their
respective business and the ownership of their respective properties (including,
without limitation, applicable laws, statutes, rules, regulations, ordinances
and Orders relating to occupational health and safety standards, consumer
protection and equal employment opportunities), except to the extent that the
applicability or validity of any such law, statute, rule, regulation, ordinance
or Order is being contested in good faith by appropriate and timely actions or
proceedings diligently pursued, and for which such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made, so long as
such actions or proceedings are effective to prevent the imposition of any
material penalty on the Borrowers or such Restricted Subsidiary and the
consequences of the failure to comply with such contested law, statute, rule,
regulation, ordinance or Order and of the conduct of such action or proceeding
could not reasonably be expected to have, either alone or taken together with
the consequences of all other such failures, actions and proceedings, a Material
Adverse Effect.
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<PAGE>
SECTION 8.16. Environmental Matters.
---------------------
(a) The Borrowers will, and will cause each of their Restricted
Subsidiaries to, (i) obtain and maintain in full force and effect all
Environmental Permits that may be required from time to time under any
Environmental Laws applicable to the Borrowers or any Restricted Subsidiary and
(ii) be and remain in compliance in all material respects with all terms and
conditions of all such Environmental Permits and with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in all applicable Environmental Laws.
(b) The Borrowers will not, and will not permit any of their Restricted
Subsidiaries to, (i) cause or allow (A) any Hazardous Substance to be present at
any time on, in, under or above the Borrower Premises or any part thereof or (B)
the Borrower Premises or any part thereof to be used at any time to manufacture,
generate, refine, process, distribute, use, sell, treat, receive, store, dispose
of, transport, arrange for transport of, handle, or be involved in any other
activity involving, any Hazardous Substance, or (ii) conduct any such activities
described in the foregoing clause (i)(B) on the Borrower Premises or anywhere
else, except, in each case referred to in the foregoing clauses (i) and (ii), in
a manner that is in compliance in all material respects with all applicable
Environmental Laws and Environmental Permits and to an extent that will not have
a Material Adverse Effect; provided, however, that the existence of the
-------- -------
circumstances described on Schedule XI with respect to the Everett Facility
-----------
shall not be deemed to constitute a default by the Borrowers in the performance
of their respective obligations under this Section 8.16(b) so long as neither
such circumstances nor any claim or liability asserted against the Borrowers in
connection therewith nor any action required to be taken by the Borrowers with
respect thereto shall have had a Material Adverse Effect.
SECTION 8.17. Maintenance of Office.
---------------------
The Borrowers will maintain their principal office at a location in the
United States of America where notices, presentations and demands in respect of
this Agreement may be made upon them, and will notify the Administrative Agent
and each of the Lenders in writing of any change of location of such office
reasonably promptly following the occurrence of such change. Such office shall
first be maintained at the address of the Borrowers set forth in Section
12.01(a).
SECTION 8.18. Future Restricted Subsidiaries.
------------------------------
The Borrowers will cause each Subsidiary (other than any Subsidiary created
in connection with any Permitted Receivables Financing for the sole purpose of,
and whose business activities are (and at all times remain) limited to,
purchasing accounts receivable (or any interests therein) from the Borrowers or
any of their Restricted Subsidiaries and selling, transferring or otherwise
conveying such accounts receivable (or any interests therein) to the Receivables
Financier for such Permitted Receivables Financing) which at any time on or
following the Closing Date shall be designated or redesignated in accordance
with the terms of this Agreement as a Restricted Subsidiary, not later than the
time of effectiveness of such
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<PAGE>
designation or redesignation, to guarantee pursuant to the Guaranty Agreement
the obligations of the Borrowers under this Agreement and the other Credit
Documents to which the Borrowers are a party. In furtherance of the above, the
Borrowers shall notify the Administrative Agent and the Lenders in accordance
with Section 6.01(j) upon any Subsidiary being designated or redesignated in
accordance with the terms of this Agreement as a Restricted Subsidiary and shall
cause such Subsidiary (i) to execute a Guarantor Joinder Agreement and (ii) to
deliver such other documentation as the Administrative Agent may reasonably
request in connection with the foregoing, including without limitation certified
corporate resolutions and other corporate documents of such Subsidiary and
favorable opinions of counsel to such Subsidiary (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above), all in form, content and scope reasonably
satisfactory to the Administrative Agent.
Notwithstanding any provision of this Agreement or the Guaranty Agreement
to the contrary, in the event that any Guarantor shall cease to be a Restricted
Subsidiary in accordance with the terms of this Agreement, then (1) such
Guarantor, automatically and without further act on the part of the
Administrative Agent or the Lenders, shall be released from its obligations
under the Guaranty Agreement and (2) promptly upon the request of the Borrowers,
the Administrative Agent (on behalf of the Lenders) shall execute such documents
and take such other action reasonably requested by the Borrowers to memorialize
the release of such Guarantor from its obligations arising under the Guaranty
Agreement.
SECTION 8.19. Year 2000.
---------
Each 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. At the request of the Administrative Agent or any Lender, each
Borrower shall provide the Administrative Agent or such Lender, as the case may
be, with assurance reasonably acceptable to the Administrative Agent or such
Bank, as the case may be, of such Borrower's year 2000 capability.
ARTICLE IX.
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Each of the Borrowers hereby represents and warrants to each Lender that:
SECTION 9.01. Organization and Authority of the Borrowers, etc.
------------------------------------------------
Each Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite legal
right, power and authority to own or hold under lease the property it purports
to own or hold under lease, to carry on its business as now conducted and as
proposed to be conducted, and to enter into and carry out the terms of this
Agreement and the other Credit Documents to which it is a party. As of the
Closing
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Date, each Borrower has, by all necessary corporate action (including all action
of its shareholders required in connection therewith), duly authorized the
execution and delivery of, and the performance of its obligations under, this
Agreement and the other Credit Documents to which it is a party.
SECTION 9.02. Subsidiaries.
------------
Schedule VIII lists all existing Subsidiaries of the Borrowers as of the
-------------
Closing Date and correctly sets forth, as to each Subsidiary (a) its name, (b)
its jurisdiction of organization, (c) the percentage of its issued and
outstanding shares of capital stock of each class owned by a Borrower or one of
its Subsidiaries (specifying each such Subsidiary), and (d) the name of each
Person, if any, other than a Borrower or one of its Subsidiaries owning
outstanding shares of capital stock of any class of such Subsidiary and the
percentage of each such class of stock owned by such Person. The Borrowers do
not, as of the date of this Agreement, and will not, as of the Closing Date,
have any Unrestricted Subsidiaries; and each Subsidiary listed on Schedule VIII
-------------
is initially designated as a Restricted Subsidiary. Each such Restricted
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite legal right, power and authority to own or hold under lease the
property it purports to own or hold under lease, to carry on its business as now
conducted and as proposed to be conducted, and to enter into and carry out the
terms of the Guaranty Agreement. Each such Restricted Subsidiary has, by all
necessary corporate action (including all action of its shareholders required in
connection therewith), duly authorized the execution and delivery of, and the
performance of its obligations under the Guaranty Agreement. All of the
outstanding shares of capital stock of each such Restricted Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable and all
shares of capital stock indicated on Schedule VIII as owned by a Borrower or any
-------------
other such Restricted Subsidiary as of the Closing Date are owned beneficially
and of record by a Borrower or such other Restricted Subsidiary, as the case may
be; and immediately after giving effect to the transactions to be consummated on
the Closing Date such shares will be so owned, free and clear of any Lien.
Except as otherwise permitted by Section 8.06, there are no outstanding rights,
options, warrants, conversion rights or agreements for the purchase or
acquisition from the Borrowers or any of their Subsidiaries of any shares of
capital stock or similar interests or other securities of any Subsidiary.
SECTION 9.03. Qualification.
-------------
Each Borrower is, and each of its Restricted Subsidiaries is, duly
qualified or licensed and in good standing as a foreign corporation duly
authorized to do business in each jurisdiction (other than the jurisdiction of
its organization) in which the nature of its activities or the character of the
properties it owns or leases makes such qualification or licensing necessary and
in which the failure to so qualify or be licensed would have a Material Adverse
Effect. Schedule VIII sets forth as to the Borrowers and each of their
-------------
Restricted Subsidiaries the jurisdictions (other than the jurisdiction of its
organization) in which, as of the Closing Date, it is qualified or licensed to
do business or in which any substantial part of its tangible assets is located.
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SECTION 9.04. Financial Statements.
--------------------
The financial statements referenced in Sections 5.01(a)(i) and 5.01(a)(ii)
have been prepared in accordance with GAAP, are complete and correct in all
material respects and present fairly the financial position and results of
operations and cash flows of the entities for the periods specified, subject in
the case of interim company-prepared statements to normal year-end adjustments
and the absence of footnotes.
SECTION 9.05. Changes, etc.
------------
Since June 30, 1997, (a) there have been no changes in the Business or
Condition of the Borrowers and their Subsidiaries which has been, either in any
one case or in the aggregate, Materially Adverse, and (b) there has been no
occurrence or development, whether or not insured against, which has had or
could reasonably be expected to have a Material Adverse Effect, except in the
case of (a) or (b) above, to the extent, if any, disclosed in the Registration
Statement or other written materials furnished by the Borrowers by the Closing
Date.
SECTION 9.06. Compliance with Laws, Other Instruments, etc.
--------------------------------------------
(a) Neither of the Borrowers nor any of their Subsidiaries is in violation
of any term of its corporate charter or by-laws. Neither of the Borrowers nor
any of their Subsidiaries is in violation of any term of any agreement,
indenture, mortgage or instrument to which it is a party or by which it or any
of its properties may be bound or affected or any existing statute, law,
governmental rule, regulation or ordinance, or any Order of any court,
arbitrator or Governmental Body applicable to it (including, without limitation,
any statute, law, rule, regulation, ordinance or Order relating to occupational
health and safety standards, consumer protection or equal employment practice
requirements and applicable regulations of the Department of Agriculture, the
Food and Drug Administration and state and local health departments), the
consequences of which violation, either alone or taken together with the
consequences of all other such violations, have had or could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the execution and delivery of this Agreement or any of the
other Credit Documents nor the performance of the terms and provisions hereof or
thereof nor the consummation of the transactions contemplated hereby or thereby
will result in any breach of or be in conflict with or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in a loss of any benefit to which the Borrowers or
any of their Subsidiaries is entitled under, or result in (or require) the
creation of any Lien upon any property of the Borrowers under, any term of, the
corporate charter or by-laws of the Borrowers or any of their Subsidiaries or
any material agreement, indenture, mortgage or instrument to which the Borrowers
or any of their Subsidiaries is a party or by which the Borrowers, any such
Subsidiary or any of their respective properties may be bound or affected, or
any existing statute, law, rule, regulation or ordinance or any Order of any
court, arbitrator or Governmental Body applicable to the Borrowers, any such
Subsidiary or any of their respective properties.
85
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SECTION 9.07. Consents and Approvals.
----------------------
No Approval by, from or with, and no other action in respect of, any
Governmental Body or any other Person (including any trustee, or any holder of
any indebtedness, securities or other obligations of the Borrowers or any
Restricted Subsidiary) is required (a) for or in connection with the valid
execution and delivery by the Borrowers or any Restricted Subsidiary of or the
performance by the Borrowers or any Restricted Subsidiary of their obligations
under this Agreement or any of the other Credit Documents or the consummation by
the Borrowers or any Restricted Subsidiary of the transactions contemplated
hereby and thereby, or (b) as a condition to the legality, validity or
enforceability as against the Borrowers or any Restricted Subsidiary of this
Agreement or any of the other Credit Documents, in each case, other than (i)
routine filings before and after the Closing Date with the Commission and state
Blue Sky authorities, and (ii) the Approvals described on Schedule XII, all of
------------
which have been duly obtained or made and are in full force and effect and true
and correct copies of instruments evidencing which have been furnished to the
Administrative Agent.
SECTION 9.08. Debt, etc.
----------
Schedule IX correctly lists all secured and unsecured Debt of the Borrowers
-----------
and each of their Subsidiaries outstanding on the date hereof (except as
otherwise noted thereon) and shows, as to each item of Debt listed thereon, the
obligor and obligee, the aggregate principal amount outstanding as of the
Closing Date. No default or event of default or basis for acceleration exists
(nor in the case of Permitted Receivables Financings, has any termination event
occurred) or, immediately after giving effect to the initial borrowings
hereunder on the Closing Date and the other transactions to occur on the Closing
Date as contemplated hereby, will exist (or, but for the permanent waiver
thereof, would exist) under any instrument or agreement evidencing, providing
for the issuance or securing of, or otherwise relating to any such Debt due to
(a) nonpayment of any obligations thereunder or (b) any failure to duly perform
or observe any other covenant, provision, agreement or condition contained
therein, the consequences of which failure, either alone or taken together with
the consequences of all other such failures, have had or could reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, neither the
Borrowers nor any Restricted Subsidiary is a party to or bound by any charter
provision, by-law, agreement, indenture, mortgage, lease, instrument or License
(other than this Agreement and the other Credit Documents and the 364-Day Credit
Agreement and the other Credit Documents (as defined in the 364-Day Credit
Agreement)) which contains any restriction on the incurrence by it of any Debt,
except for the Indenture and the Note Purchase Agreements, true and correct
copies of each of which have been delivered to the Administrative Agent and
pursuant to each of which the Borrowers or such Restricted Subsidiary, as
applicable, either is permitted to incur Debt hereunder and/or under the other
Credit Documents to which they are a party or has duly obtained in writing and
delivered to the Administrative Agent all such Approvals as are or will be
necessary or appropriate to permit such incurrence.
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SECTION 9.09. Title to Property; Leases; Investments; Existing Affiliate
----------------------------------------------------------
Agreements.
- ----------
(a) Each Borrower and its Restricted Subsidiaries have good and marketable
title to their real properties and good title to the other properties they
purport to own, including those reflected in the balance sheet included in the
most recent audited financial statements referred to in Section 9.04 or
purported to have been acquired by the Borrowers or any of their Restricted
Subsidiaries after the date of such balance sheet (other than any such
properties disposed of since such date in the ordinary course of business),
subject in the case of all such property to no Liens other than Liens permitted
by Section 8.03. The Borrowers and their Restricted Subsidiaries enjoy peaceful
and undisturbed possession under all leases of all personal and all real
property necessary in any material respect to their respective operations, all
such leases are valid and subsisting and in full force and effect, and neither
the Borrowers nor any such Subsidiary is in default in any material respect in
the performance or observance of its obligations thereunder. Schedule XIII
-------------
includes a general description of each Operating Lease existing as of the date
hereof under which the Borrowers or a Restricted Subsidiary is a lessee and
under which the annual rental obligations exceed $100,000, and sets forth with
respect to each such lease, (i) the name of the lessor thereunder and (ii) a
general description of the property leased.
(b) Schedule VII correctly lists all Investments of the Borrowers and their
------------
Restricted Subsidiaries of the character described in subdivision (a) of the
definition of "Investment" set forth in Section 1.01 (other than Investments in
Subsidiaries) which are existing on the date hereof.
(c) The Borrowers have delivered to the Administrative Agent a true and
correct copy of each of the Existing Affiliate Agreements, in the case of each
thereof as the same shall have been amended and be in effect on and as of the
Closing Date.
SECTION 9.10. Litigation.
----------
There are no actions, suits or proceedings pending or, to the knowledge of
the Borrowers, threatened against the Borrowers or any of their Restricted
Subsidiaries or any of their respective properties (and no basis therefor is
known to the Borrowers) in any court or before any arbitrator of any kind or
before or by any Governmental Body, which (a) question the validity or legality
of this Agreement or any of the other Credit Documents or any action taken or to
be taken pursuant hereto or thereto or (b) either alone or taken together with
all other such actions, suits and proceedings, have had or could reasonably be
expected to have a Material Adverse Effect.
SECTION 9.11. Taxes.
-----
Each Borrower and its Restricted Subsidiaries have filed all tax returns
which are required by law to have been filed by them in any jurisdiction (other
than tax returns (i) which may be required to be filed with state or local
taxing authorities which have not advised the Borrowers or any Restricted
Subsidiary of such requirement, and (ii) with respect to which, neither the
failure to file the same nor the failure to pay any taxes, assessments or
charges which might be shown to be owing thereon has had or could reasonably be
expected to have a Material
87
<PAGE>
Adverse Effect) and, to the best of the Borrowers' knowledge, have paid all
taxes, assessments, fees and charges of each Governmental Body shown to be owing
on such filed returns to the extent the same have become due and payable and
before they have become delinquent other than those presently payable without
penalty or interest and those being contested in good faith by appropriate and
timely actions or proceedings diligently pursued and with respect to which
reserves have been provided for in the Borrowers' financial statements to the
extent required by GAAP. The Borrowers do not know of any additional assessment
or proposed assessment for any fiscal year, and no material controversy in
respect of additional federal or state income taxes is pending or to the
knowledge of the Borrowers is threatened except any with respect to which
reserves have been provided for in the Borrowers' financial statements to the
extent required by GAAP. In the opinion of the Borrowers, all tax liabilities
(including taxes for all open years and for its current fiscal period) are
adequately provided for on the books of the Borrowers and their Restricted
Subsidiaries in accordance with GAAP.
SECTION 9.12. Compliance with ERISA.
---------------------
(a) No Termination Event has occurred, and no event or condition has
occurred or exists as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan. No accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, has occurred with respect to any Plan or, to the best of
the Borrowers' knowledge, any Multiemployer Plan. The present value of all
accrued benefits under each Plan (based on those assumptions used to fund such
Plan) did not, as of the most recent valuation date prior to the Closing Date,
which for any such Plan or Multiemployer Plan was not earlier than twelve months
prior to the date as of which this representation is made, exceed the then
current value of the assets of such Plan allocable to such benefits.
(b) No Borrower Group Member has incurred, or, to the best of the
Borrowers' knowledge, is reasonably expected to incur, any material withdrawal
liability to any Multiemployer Plan. No Borrower Group Member has received any
notification that any Multiemployer Plan is in reorganization (as defined in
Section 4241 of ERISA), is insolvent (as defined in Section 4245 of ERISA) or
has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is, to the best of the Borrowers' knowledge, reasonably
expected to be in reorganization, insolvent or to be terminated.
(c) No prohibited transaction (as defined in Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility has occurred
which has subjected or may subject any Borrower Group Member to any material
liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which such
Borrower Group Member has agreed or is required to indemnify any Person against
any such liability. No Borrower Group Member has incurred, or is reasonably
expected to incur, any liability to the PBGC (other than for insurance premiums,
which have been paid when due).
(d) Full payment has been made on or before the due date (including
extensions) thereof of all amounts which any Borrower Group Member is or was
required under the terms of
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any Plan or any Multiemployer Plan to have paid as contributions to such Plan as
of the date hereof.
(e) No Lien imposed under the Code or ERISA on the assets of any Borrower
Group Member exists or is reasonably likely to arise on account of any Plan or
any Multiemployer Plan.
(f) No welfare plan (as defined in Section 3(1) of ERISA) maintained by any
Borrower Group Member provides medical or death benefits with respect to current
or former employees beyond their termination of employment (other than coverage
mandated by law). Each such plan to which Sections 601-609 of ERISA and Section
4980B of the Code apply has been administered in substantial compliance with
such sections.
SECTION 9.13. Use of Loan Proceeds; Margin Regulations.
----------------------------------------
The Borrowers will apply the proceeds of the Loans to refinance existing
indebtedness (including redemption, repurchase or prepayment of the Notes and
the Indenture Notes) and for working capital and general corporate purposes,
including without limitation acquisitions, and to make the Permitted Payments.
No part of the proceeds of the Loans will be used, directly or indirectly, for
the purpose of purchasing or carrying any "margin stock" within the meaning of
Regulations G and U of the Board of Governors of the Federal Reserve System (12
CFR 207, as amended), or for the purpose of purchasing or carrying or trading in
any securities, under such circumstances as to involve a Borrower in a violation
of Regulation X of said Board (12 CFR 224, as amended) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220, as amended).
No Debt being reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock within the
meaning of such Regulations G and U or any "margin security" within the meaning
of such Regulation T. As of the Closing Date, such margin stock does not
constitute more than 25% of the value of the consolidated assets of the
Borrowers and their Subsidiaries; and the Borrowers do not have any present
intention that such margin stock will constitute more than 25% of the value of
such assets. None of the transactions contemplated by this Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of Section 7 of the Exchange
Act or any regulations issued pursuant thereto, including, without limitation,
said Regulation G, Regulation U, Regulation T and Regulation X.
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc.
--------------------------------------------------
Each Borrower and each of its Restricted Subsidiaries owns, possesses or
has the right to use (without any known conflict with the rights of others) all
permits, franchises, patents, trademarks, service marks, trade names,
copyrights, licenses, permits and governmental or other authorizations or the
like (collectively, "Licenses") which are necessary in any material respect to
the conduct of its businesses as conducted on the date hereof and as proposed to
be conducted. All such necessary Licenses or rights therein purported to be
owned by the Borrowers or any Restricted Subsidiary are so owned free and clear
of any Liens, other than Liens permitted by Sections 8.03(a), (d) and (g). Each
such necessary License is in full force and effect, and no default in the
performance or observance by the Borrowers or any such Subsidiary of its
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obligations thereunder has occurred, the consequences of which default, either
alone or taken together with the consequences of all other such defaults, have
had or could reasonably be expected to have a Material Adverse Effect.
SECTION 9.15. Status Under Certain Statutes; Other Regulations.
------------------------------------------------
Neither Borrower is an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning of the Investment Borrower Act of 1940, as amended. Neither
Borrower is 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," as such terms are defined in the Public Utility Holding
Borrower Act of 1935, as amended. Neither Borrower is a "public utility," as
such term is defined in the Federal Power Act, as amended. Neither Borrower is
subject to regulation under any federal or state law, statute, rule, regulation
or ordinance which limits its ability to incur Debt.
SECTION 9.16. Labor Matters.
-------------
There are no labor disputes between the Borrowers or any of their
Restricted Subsidiaries on the one hand and any of their respective employees or
representatives of such employees on the other hand which in the aggregate have
had or could reasonably be expected to have a Material Adverse Effect, and the
Borrowers and their Restricted Subsidiaries are in compliance in all material
respects with all applicable laws respecting employment and employment
practices, terms and conditions of employment, tax withholding on behalf of
employees and wages and hours, and are not engaged in any unfair labor practice
which, either alone or taken together with all other such practices, have had or
could reasonably be expected to have a Material Adverse Effect.
SECTION 9.17. Full Disclosure.
---------------
This Agreement, the Registration Statement and the other documents,
certificates and instruments delivered to the Administrative Agent and/or the
Lenders by or on behalf of the Borrowers in connection with the transactions
contemplated by this Agreement, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which the same were made (including without limitation, the
respective dates on or as of which such statements were made), not misleading.
There is no fact known to the Borrowers which has had a Material Adverse Effect
since June 30, 1997 or in the future may (so far as the Borrowers can now
reasonably foresee) have a Material Adverse Effect which has not been set forth
or reflected in this Agreement, the Registration Statement or in the other
documents, certificates and instruments referred to herein and delivered to the
Administrative Agent and/or the Lenders by or on behalf of the Borrowers on or
prior to the date hereof in connection with the transactions contemplated by
this Agreement.
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SECTION 9.18. Environmental Matters.
---------------------
(a) The Borrowers and their Restricted Subsidiaries currently hold and at
all times heretofore the Borrowers and their Restricted Subsidiaries held all
Environmental Permits required under all Environmental Laws except to the extent
failure to have any such Environmental Permit, either alone or considered
together with all other such failures, has not had and can not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrowers and their Restricted Subsidiaries currently are, and at
all times heretofore the Borrowers and their Restricted Subsidiaries have been,
in compliance with all terms and conditions of all such Environmental Permits
and all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in all applicable
Environmental Laws except to the extent failure to comply therewith, either
alone or considered together with all other such failures, has not had and can
not reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth in Schedule XI, neither the Borrowers nor any of
-----------
their Restricted Subsidiaries has ever received, and, so far as is known to the
Borrowers, no predecessor in interest of the Borrowers or any such Subsidiary in
respect of any of the Borrower Premises has ever received, from any Governmental
Body or other Person any notice of, and the Borrowers have no knowledge of, any
events, conditions or circumstances that could prevent continued compliance in
all material respects with the Environmental Permits referred to in Section
9.18(b) or any scheduled renewals thereof or any applicable Environmental Laws
currently in effect, or that could give rise to any liability on the part of the
Borrowers or any such Restricted Subsidiary or otherwise form the basis of any
claim, action, demand, request, notice, suit, proceeding, hearing, study or
investigation (collectively, "Environmental Claims") involving the Borrowers or
--------------------
any of their Restricted Subsidiaries, based on or related to (i) a violation of
any applicable Environmental Laws currently in effect or (ii) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport or handling, or the
emission, discharge, release or threatened release into the environment, of any
Hazardous Substance in violation of any applicable Environmental Laws currently
in effect, other than any liability or Environmental Claim referred to in this
Section 9.18(c) which, either alone or considered together with all other such
liabilities and Environmental Claims, has not had and can not reasonably be
expected to have a Material Adverse Effect. Neither the matters set forth in
Schedule XI nor the resolution thereof nor any action required to be taken by
- -----------
the Borrowers in connection therewith have had or, in the Borrowers' good faith
judgment, will have a Material Adverse Effect.
SECTION 9.19. Solvency.
--------
Each Borrower and each Restricted Subsidiary is, and upon giving effect to
the initial borrowings hereunder on the Closing Date will be, a "solvent
institution", as said term is used in Section 1405(c) of the New York Insurance
Law, whose "obligations are not in default as to principal or interest," as said
terms are used in said Section 1405(c).
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ARTICLE X.
EVENTS OF DEFAULT
SECTION 10.01. Events of Default.
-----------------
Each of the following shall be an event of default (each an "Event of
--------
Default") hereunder:
- -------
(a) default shall be made in the due and punctual payment of any
principal of any of the Loans or LOC Obligations when and as the same shall
become due and payable; or
(b) default shall be made in the due and punctual payment of any
interest on any of the Loans or LOC Obligations when and as such interest
shall become due and payable, and such default shall have continued for a
period of five Business Days; or
(c) default shall be made in the due performance or observance of any
covenant, provision, agreement or condition contained in Section 8.01(c),
Section 8.03, Section 8.04 or Section 8.05, or a Borrower or a Restricted
Subsidiary shall create, incur, assume or otherwise become liable in
respect of any Debt the incurrence of which is not permitted by Section
8.02(a) or Section 8.02(b); or
(d) default shall be made in the due performance or observance of any
other covenant, provision, agreement or condition contained in this
Agreement (other than any default referred to in the foregoing subdivisions
(a), (b) and (c) of this Section 10.01), and such default shall have
continued for a period of 30 days after the earlier of (x) the date on
which any Responsible Officer of a Borrower first has knowledge of such
default, through notice or otherwise and (y) the giving of notice to the
Borrowers of such default by the Administrative Agent or any of the
Lenders; or
(e) (i) default shall be made in the payment of any amount due,
whether on an interest payment date or on a date fixed for prepayment, at
stated maturity, by acceleration or declaration or otherwise, under or in
respect of any Debt of a Borrower (including, without limitation, Debt
evidenced by any of the Notes and the Indenture Notes, but excluding (x)
Debt arising hereunder or under any of the other Credit Documents and (y)
so long as JPFDI shall hold PYA's Note and the Sara Lee Offset Agreement
shall remain in full force and effect and shall be effective to permit the
offset of principal and interest due under the Sara Lee Note against
principal and interest due under PYA's Note (or to establish JPFDI's
obligation in respect of the indebtedness evidenced by the Sara Lee Note
from and after a prepayment in full of PYA's Note as the remaining
principal balance of the Sara Lee Note after offset against amounts owing
thereon of the principal of and accrued and unpaid interest to the date of
prepayment on the PYA Note), Debt evidenced by the Sara Lee Note) or of any
Restricted Subsidiary which is outstanding in a principal amount of more
than $15,000,000, and such default
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shall continue beyond the period of grace, if any, provided with respect
thereto; or (ii) default shall be made in the due performance or observance
of any covenant, provision, agreement or condition contained in any
document evidencing or providing for the issuance or securing of any such
Debt (other than Debt excluded as aforesaid), if the effect of any such
default referred to in this clause (ii) is to have caused such Debt to
become due prior to its stated maturity or prior to its regularly scheduled
dates of payment; or
(f) default shall be made in the due performance or observance of any
financial or negative covenant or agreement contained in the Indenture or
any of the Note Purchase Agreements beyond the period of grace, if any,
provided for such performance or observance in the Indenture or such Note
Purchase Agreement (other than any default arising from or consisting of a
condition or event which (x) also constitutes a default referred to in
Section 10.01(c) or (d) or (y) shall have become an Event of Default under
Section 10.01(e)) and such default (an "Indenture Default") shall have
-----------------
continued for a period of 30 consecutive days without having been cured,
either by a Borrower or by virtue of a waiver granted under or an amendment
or other modification of the provisions of the Indenture or such Note
Purchase Agreement; provided that, in determining whether an Indenture
Default shall have occurred or shall exist, and in determining the period
during which any Indenture Default shall have continued, no effect shall be
given to any waiver in respect of any provision of the Indenture or Note
Purchase Agreements, or any consent to a departure by a Borrower or a
Subsidiary from any such provision or to any amendment or modification of
the terms of the Indenture or Note Purchase Agreements or to any agreement
entered into following, or in contemplation of, the occurrence or coming
into existence of any condition or event which upon notice or lapse of time
or both would constitute an Indenture Default, if such waiver, consent,
amendment, modification or agreement is given or entered into directly or
indirectly in exchange for (i) monetary or other consideration (other than
the payment by a Borrower or a Subsidiary of (x) waiver, modification or
similar fees to the holders of the Indenture Notes or the Notes not
exceeding, in the case of any such fee payable to any one such holder in
respect of the waivers, consents, amendments, modifications or agreements
given or entered into at any one time, $10,000 and (y) amounts in
reimbursement of the out-of-pocket costs of any of the holders of the
Indenture Notes or the Notes), (ii) any increase in the rate of interest,
premium or fees theretofore payable under the Indenture or Note Purchase
Agreements, or (iii) any decrease in the term to final maturity or the
Weighted Average Life to Maturity of any Debt of a Borrower or a Restricted
Subsidiary under the Indenture or Note Purchase Agreements; or
(g) a Borrower or any Restricted Subsidiary shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part
of its property, (ii) become insolvent or be generally unable to or shall
generally fail or admit in writing its inability to pay its debts as such
debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code
(as now or hereafter in effect), (v) file a petition seeking to take
advantage of any bankruptcy, insolvency,
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moratorium, reorganization or other similar law affecting the enforcement
of creditors' rights generally, (vi) acquiesce in writing to, or fail to
controvert in a timely or appropriate manner, any petition filed against it
in an involuntary case under such Bankruptcy Code, (vii) take any action
under the laws of any jurisdiction (foreign or domestic) analogous to any
of the foregoing, or (viii) take any corporate action in furtherance of any
of the foregoing; or
(h) a proceeding or case shall be commenced in respect of a Borrower
or any Restricted Subsidiary, without its application or consent, in any
court of competent jurisdiction, seeking (i) the liquidation,
reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part
of its assets, or (iii) similar relief in respect of it under any law
providing for the relief of debtors, and such proceeding or case described
in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in
effect, for a period of 45 days, or an order for relief shall be entered in
an involuntary case under the Federal Bankruptcy Code (as now or hereafter
in effect) against a Borrower or any Restricted Subsidiary or action under
the laws of any jurisdiction (foreign or domestic) analogous to any of the
foregoing shall be taken with respect to a Borrower or any Restricted
Subsidiary and shall continue undismissed, or unstayed and in effect, for a
period of 45 days; or
(i) a final judgment or decree for the payment of money shall be
rendered by a court of competent jurisdiction against a Borrower or any
Restricted Subsidiary which, either alone or together with other
outstanding judgments or decrees against a Borrower or any one or more
Restricted Subsidiaries, shall aggregate more than $15,000,000, and such
Borrower or such Subsidiary, as the case may be, shall not discharge the
same or provide for its discharge in accordance with its terms within 60
days from the date of entry thereof or within such longer period
(including, without limitation, any period during which such Borrower or
such Subsidiary shall be contesting a denial of coverage of its liability
in respect of such judgment by a reputable insurance carrier) during which
execution of such judgment shall have been stayed; or
(j) any representation or warranty made by the Borrowers or a
Restricted Subsidiary in this Agreement or the Guaranty Agreement or in any
certificate or other instrument delivered hereunder or thereunder or
pursuant hereto or thereto or in connection with any provision hereof shall
prove to have been false or incorrect or breached in any material respect
on the date as of which made; or
(k) (i) any Borrower Group Member shall fail to pay when due any
amount which it shall have become liable to pay to the PBGC or to a Plan or
Multiemployer Plan under Title IV of ERISA; (ii) any Borrower Group Member
shall withdraw from a Multiple Employer Plan during a plan year in which it
is a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or shall be treated as having so withdrawn under Section 4062(e) of
ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of
intent to terminate any Plan or Multiemployer Plan shall be
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filed under Title IV of ERISA by any Borrower Group Member, any plan
administrator or any combination of the foregoing; (iv) the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Plan or Multiemployer Plan; (v)
any Borrower Group Member shall withdraw from any Multiemployer Plan ; (vi)
any Plan shall have an Unfunded Current Liability; or (vii) any prohibited
transaction (as defined in Section 406 of ERISA or Section 4975 of the
Code) or breach of fiduciary responsibility shall occur which may subject
any Borrower Group Member to any liability under Section 406, 409, 502(i)
or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which such Borrower Group Member has agreed or
is required to indemnify any Person against any such liability; and there
shall result from any such event or events referred to in the foregoing
subdivisions (k)(i) through (k)(vii) a material risk of incurring a
liability in excess of $5,000,000; or
(l) a Change of Control shall occur; or
(m) the Guaranty given by any Restricted Subsidiary pursuant to the
Guaranty Agreement shall cease to be in full force and effect other than by
reason of the release of such Restricted Subsidiary pursuant to Section
8.18 from its obligations under the Guaranty Agreement, or any Restricted
Subsidiary or any Person acting by or on behalf of such Restricted
Subsidiary shall deny or disaffirm such Restricted Subsidiary's obligations
under the Guaranty Agreement; or default shall be made by any Restricted
Subsidiary in the performance or observance of any covenant, provision,
agreement or condition contained in the Guaranty Agreement, and such
default (i) shall have continued for a period of 30 days after the earlier
of (x) the date on which any Responsible Officer of a Borrower first has
knowledge of such default, through notice or otherwise, and (y) the giving
of notice to the Borrowers of such default by the Administrative Agent or
any of the Lenders, and (ii) either alone or considered together with all
such defaults, shall have or shall be reasonably likely to have a Material
Adverse Effect; or
(n) the occurrence of an Event of Default under the 364-Day Credit
Agreement.
SECTION 10.02. Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Lenders or cured
to the satisfaction of the Lenders (pursuant to the voting procedures in Section
12.07), the Administrative Agent, upon the request of the Required Lenders,
shall, by written notice to the Borrowers, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
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(ii) Acceleration of Obligations. Declare the unpaid principal of
---------------------------
and any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and all
other indebtedness or obligations of any and every kind owing by the
Borrowers to any of the Lenders hereunder to be due whereupon the same
shall be immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrowers.
(iii) Cash Collateral. Contemporaneously with or subsequent to the
---------------
exercise of its right under clause (ii) of this Section 10.02, direct the
Borrowers to pay (and the Borrowers agree that upon receipt of such
direction, or upon the occurrence of an Event of Default under Section
10.01(g) or (h), it will immediately pay) to the Administrative Agent
additional cash, to be held by the Administrative Agent, for the benefit of
the Lenders, in a cash collateral account as additional security for the
LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all Letters of Credits then outstanding.
(iv) Enforcement of Rights. Enforce (A) any and all rights and
---------------------
interests created and existing under the Credit Documents and (B) all
rights of set-off to the extent available under, and to the extent
exercised in accordance with, applicable law.
Notwithstanding the foregoing, if an Event of Default specified in Section
10.01(g) or (h) shall occur, then the Commitments shall automatically terminate
and all Loans, reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Lenders hereunder automatically
shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent.
ARTICLE XI.
ADMINISTRATIVE AGENT
SECTION 11.01. Appointment and Authorization.
-----------------------------
Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers under this
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. The provisions of this Article XI are solely for
the benefit of the Administrative Agent and the Lenders and the Borrowers shall
not have any rights as a third party beneficiary of any of the provisions
hereof.
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SECTION 11.02. General Immunity.
----------------
In performing its duties to the Lenders as Administrative Agent hereunder,
the Administrative Agent will take the same care as it takes in connection with
credit transactions in which it alone is interested. However, neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Lenders for any action taken or omitted to be taken by it
or them hereunder or in connection herewith except for its own or their own
gross negligence or willful misconduct.
SECTION 11.03. Consultation with Professionals.
-------------------------------
The Administrative Agent may consult with legal counsel and other
professionals selected by it and shall not be liable to the Lenders for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel and professionals in their respective areas of expertise.
SECTION 11.04. Documents.
---------
The Administrative Agent shall not be under any duty to examine or pass
upon the effectiveness, genuineness or validity of this Agreement or any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or in connection herewith, and the Administrative Agent shall be entitled
to assume that the same are valid, effective and genuine and what they purport
to be.
SECTION 11.05. Rights as a Lender.
------------------
With respect to their respective Commitments, the Administrative Agent
shall have the same rights and powers hereunder as any Lender and may exercise
the same as though it were not the Administrative Agent, as the case may be, and
the terms "Lender" and "Lenders" shall, as applicable and unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to and
generally engage in any kind of banking or trust business with the Borrowers as
if it were not the Administrative Agent as the case may be.
SECTION 11.06. Responsibility of Administrative Agent.
--------------------------------------
It is expressly understood and agreed that the obligations of the
Administrative Agent hereunder to the Lenders are only those expressly set forth
in this Agreement and the other Credit Documents and that the Administrative
Agent shall be entitled to assume that no Default or Event of Default has
occurred and is continuing unless the Administrative Agent has actual knowledge
of such fact or has received notice from a Lender or a Borrower that such Lender
or such Borrower consider that a Default or an Event of Default has occurred and
is continuing and specifying the nature thereof.
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SECTION 11.07. Action by Administrative Agent.
------------------------------
So long as the Administrative Agent shall be entitled, pursuant to Section
11.06, to assume that no Default or Event of Default has occurred and is
continuing, the Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights that may be
vested in it by, or with respect to taking or refraining from taking any action
or actions that it may be able to take under or in respect of, this Agreement or
any of the other Credit Documents. The Administrative Agent shall incur no
liability to the Lenders under or in respect of this Agreement or any of the
other Credit Documents by acting upon any notice, consent, certificate, warranty
or other paper or instrument reasonably believed by it to be genuine or
authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable under the
circumstances.
Without limiting the generality of the foregoing provisions of this Section
11.07, the Administrative Agent shall be conclusively entitled to assume that
the conditions precedent set forth in Section 5.02 have been satisfied unless it
shall have acquired actual knowledge that any such condition precedent has not
been satisfied.
SECTION 11.08. Notices of Event of Default, Etc.
---------------------------------
In the event that the Administrative Agent shall have acquired actual
knowledge of any Default or Event of Default, the Administrative Agent shall
promptly give notice thereof to the Lenders, and the Administrative Agent may
take such action and assert such rights with respect to taking or refraining
from taking any action or actions that it may be able to take under or in
respect of, this Agreement or any of the other Credit Documents, as it deems to
be advisable in its discretion for the protection of the interests of the
Lenders, including, without limitation, the exercise of rights and remedies
under Article X and under any of the other Credit Documents; provided that, as
--------
between the Administrative Agent and the Lenders only, after the occurrence of
an Event of Default, the Administrative Agent (i) shall not exercise any rights
or remedies granted to it hereunder, under any other of the Credit Documents, or
otherwise available to it at law or in equity, without the approval of the
Required Lenders (or all of the Lenders, if otherwise required by this
Agreement) and (ii) upon the direction of the Required Lenders (or all of the
Lenders, if otherwise required by this Agreement), shall exercise such rights
and remedies as so directed; provided further that, notwithstanding the above,
the Administrative Agent shall not be required to take any action which would
expose the Administrative Agent to personal liability or which is contrary to
law unless it shall be indemnified to its satisfaction against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Administrative Agent by
reason of taking or continuing to take any such action.
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SECTION 11.09. Indemnification of Administrative Agent.
---------------------------------------
The Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers), ratably according to their respective Commitment
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any of the other Credit Documents or any action taken or omitted by
the Administrative Agent under this Agreement or any of the other Credit
Documents; provided that, no Lender shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation to the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative Agent in connection with
the modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Credit Documents, to
the extent not reimbursed by the Borrowers.
SECTION 11.10. No Representations.
------------------
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any of its directors, employees, agents, attorneys-
in-fact or affiliates hereafter taken, including any review of the affairs of
the Borrowers, shall be deemed to constitute any representation or warranty by
the Administrative Agent to such Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigations into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make Loans hereunder and to enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. The
Administrative Agent agrees that (i) it shall promptly deliver to each Lender
copies of all notices, reports and other documents expressly required to be
furnished to the Administrative Agent by the Borrowers or any Restricted
Subsidiary pursuant to any of the Credit Documents and (ii) upon the reasonable
request of any Lender, it shall promptly deliver to such Lender such other
information as the Administrative Agent shall receive regarding the Borrowers or
any Restricted Subsidiary or the performance of the respective obligations of
the Borrowers and the Restricted Subsidiaries under the Credit Documents;
otherwise, the Administrative Agent shall have no duty or responsibility to
provide any Lender with any credit
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or other information concerning the business, operations, property, financial
and other condition or creditworthiness of the Borrowers which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
SECTION 11.11. Resignation; Removal.
--------------------
Subject to the appointment and acceptance of a successor as provided below,
the acting Administrative Agent may resign by notifying the Lenders and the
Borrowers not less than 30 days prior to the effective date of such resignation
or may be removed by the Borrowers in their sole discretion at any time by
notifying the Administrative Agent and the other Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor acceptable to the Borrowers, which successor shall be a Lender that is
a bank having a combined capital and surplus of at least $500,000,000 or an
affiliate of any such bank. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the delivery of notice of resignation by or removal of the existing
Administrative Agent pursuant to the first sentence of this Section 11.11, then
the existing Administrative Agent (in the case of resignation by the existing
Administrative Agent) or the Borrowers (in the case of removal by the Borrowers
of the existing Administrative Agent) may, on behalf of the Lenders, appoint a
successor satisfying the requirements set forth above. Upon the acceptance of
any appointment hereunder by a successor Lender, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent, and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder. After an Administrative Agent's resignation or removal hereunder, the
provisions of this Article XI and Section 12.06 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
SECTION 11.12. Syndication Agent, Documentation Agent and Co-Arrangers.
-------------------------------------------------------
The Syndication Agent, Documentation Agent and Co-Arrangers, in their
capacities as such, shall have no rights, powers, duties or obligations under
this Agreement or any of the other Credit Documents.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.01. Notices.
-------
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sending party, as follows:
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(a) if to the Borrowers, 9830 Patuxent Woods Drive, Columbia, Maryland
21046, Attention of Vice President-Finance and Controller (Facsimile No. 410-
309-6296);
(b) if to the Administrative Agent to it at:
(i) with respect to operational matters, 101 North Tryon Street,
Independence Center, 15th Floor, NC1-001-15-02, Charlotte, North Carolina
28255, Attention of Kathy Mumpower, Agency Services (Facsimile No. 704-386-
9923); and
(ii) in all other cases, 6610 Rockledge Drive, 6th Floor, MD2-600-06-
05, Bethesda, Maryland 20817-1876, Attention of Michael Heredia, Vice
President (Facsimile No. 301-571-0719);
(c) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule I or in the assignment agreement pursuant to which such Lender became a
- ----------
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five (5) Business Days after dispatch by certified
or registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 12.01 or at such other
address or telex, telecopy or other number as shall be designated by such party
in a notice to each other party complying with the terms of this Section 12.01.
SECTION 12.02. Survival of Agreement.
---------------------
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making of Loans by
the Lenders hereunder regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as any Loans
or any amounts are outstanding under this Agreement or any of the other Credit
Documents and so long as the Commitments have not been terminated.
SECTION 12.03. Binding Effect.
--------------
This Agreement shall become effective when it shall have been executed by
the Borrowers and the Administrative Agent, and when the Administrative Agent
shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender, and when the other conditions set
out in Section 5.01 shall have been satisfied or waived, and thereafter this
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and each Lender and their respective successors and
assigns.
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SECTION 12.04. Benefit of Agreement.
--------------------
(a) Generally. This Agreement shall be binding upon and inure to the
---------
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that the Borrowers may not assign or transfer any of
--------
their interests without prior written consent of the Lenders; provided further
-------- -------
that the rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth in this
Section 12.04, provided, however, that nothing herein shall prevent or prohibit
-------- -------
any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank, or
(ii) granting assignments or participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any affiliate of such
Lender which is at least 50% owned by such Lender or its parent company. To the
extent required in connection with a pledge of Loans by any Lender to a Federal
Reserve Bank, the Borrowers agree that, upon request of any such Lender, they
will promptly provide such Lender a promissory note evidencing the repayment
obligations of the Borrowers with respect to the principal of and interest on
the Loans of such Lender arising under Section 2.01, such promissory note to be
in a form reasonably satisfactory to the Borrowers and the applicable Lender.
(b) Assignments by Lenders. Each Lender may assign all or a portion of its
----------------------
rights and obligations hereunder pursuant to an assignment agreement
substantially in the form of Schedule XIV to one or more Eligible Assignees
------------
with, in the case of an assignment other than to a Lender or an affiliate of a
Lender the prior written consent of the Borrowers so long as no Event of Default
then exists, which consent will not be unreasonably withheld or delayed,
provided that any such assignment shall be in a minimum aggregate amount of
- --------
$5,000,000 of the Commitments and in integral multiples of $1,000,000 above such
amount, and that each such assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender's rights and obligations under this
Agreement. Any assignment hereunder shall be effective upon delivery to the
Administrative Agent of written notice of the assignment together with a
transfer fee of $2,500 payable to the Administrative Agent for its own account.
The assigning Lender will give prompt notice to the Administrative Agent and the
Borrowers of any such assignment. Upon the effectiveness of any such assignment
(and after notice to the Borrowers as provided herein), the assignee shall
become a "Lender" for all purposes of this Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations hereunder to the extent of the Loans, Participation
Interests and Commitments being assigned. By executing and delivering an
assignment agreement in accordance with this Section 12.04(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim; (ii) except
as set forth in clause (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, any
of the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto or the financial condition of the Borrowers or any Restricted
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Subsidiary or the performance or observance by the Borrowers or any Restricted
Subsidiary of any of their respective obligations under this Agreement, any of
the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such assignment agreement; (iv) such
assignee confirms that it has received a copy of this Agreement, the other
Credit Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and without reliance
upon the Administrative Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Credit Documents; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under this Agreement or any other Credit Document as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement and the other Credit Documents are required
to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or assign
--------------
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
--------
purposes under this Agreement and the other Credit Documents (such selling
Lender's obligations under this Agreement remaining unchanged) and the
participant shall not constitute a Lender hereunder, (ii) no such participant
shall have, or be granted, rights to approve any amendment or waiver relating to
this Agreement or any of the other Credit Documents except with respect to any
amendment or waiver referenced in Section 12.07 (i), (ii) or (v), (iii) sub-
participations by the participant (except to an affiliate, parent company or
affiliate of a parent company of the participant) shall be prohibited and (iv)
any such participations shall be in an integral multiple of $5,000,000 of the
Commitments. In the case of any such participation, the participant shall not
have any rights under this Agreement or under any of the other Credit Documents
(the participant's rights against the selling Lender in respect of such
participation to be those set forth in the participation agreement with such
Lender creating such participation) and all amounts payable by the Borrowers
hereunder shall be determined as if such Lender had not sold such participation,
provided, however, that such participant shall be entitled to receive additional
- -------- -------
amounts under Sections 3.05 and 3.07 on the same basis as if it were a Lender,
except that all claims and petitions for payment and all payments made pursuant
to such Sections shall be made through such selling Lender and except that a
participant shall not be entitled to receive pursuant to such provisions an
amount larger than its share of the amount of which the selling Lender would
have been entitled.
SECTION 12.05. No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder
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or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies provided herein are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on the Borrowers in any case shall
entitle the Borrowers to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or the Lenders to any other or further action in any circumstances without
notice or demand.
SECTION 12.06. Payment of Expenses, Etc.
-------------------------
The Borrowers agree to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Agreement and the
other Credit Documents and the documents and instruments referred to therein and
any amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrowers under this Agreement and (B) of the Administrative Agent and the
Lenders in connection with enforcement of the Credit Documents and the documents
and instruments referred to therein and/or collection of the obligations of any
of the Borrowers and the Restricted Subsidiaries pursuant to the Credit
Documents (including, without limitation, in connection with any such
enforcement or collection, the reasonable fees and disbursements of counsel for
the Administrative Agent and each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iii) indemnify each Lender (including the
Issuing Lender), its officers, directors, employees, representatives and agents
from and hold each of them harmless against any and all losses, liabilities,
claims, damages or reasonable out-of-pocket expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document, to the use of proceeds of any Loans hereunder, to the use of or any
drawings under any Letters of Credit issued hereunder, to the consummation of
any other transactions contemplated in any Credit Document or to the Merger
Transaction, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross negligence
or willful misconduct on the part of the Person to be indemnified).
SECTION 12.07. Amendments, Waivers and Consents.
--------------------------------
Neither this Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
signed by the Required Lenders, provided that no such amendment, change, waiver,
--------
discharge or termination shall, without the consent of
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<PAGE>
each Lender affected thereby, (i) extend the scheduled maturities (including the
final maturity and any mandatory prepayments, other than in connection with an
Asset Disposition pursuant to Section 8.07(f) which shall be subject to the
agreement of the Required Lenders as set forth in Section 3.02(b)(ii) hereof) of
any Revolving Loan or LOC Obligation, or any portion thereof, or reduce the rate
or extend the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) thereon or fees
hereunder or reduce the principal amount thereof, or increase the Commitment of
any Lender over the amount thereof in effect (it being understood and agreed
that a waiver of any Default or Event of Default shall not constitute a change
in the terms of any Commitment of any Lender), (ii) except as otherwise
permitted by Section 8.18, release Guarantors from their obligations under the
Guaranty Agreement to the extent any such release would constitute a substantial
portion of the benefits provided by the Guarantors taken as a whole, (iii)
amend, modify or waive any provision of this Section 12.07 or Section 3.05,
3.07, 4.02, 4.03, 4.04, 4.05, 10.01(a) or (b), (iv) reduce any percentage
specified in, or otherwise modify, the definition of "Required Lenders" or (v)
consent to the assignment or transfer by the Borrowers of any of their
respective rights and obligations under this Agreement and the other Credit
Documents. No provision of Section 2.02 may be amended, modified or waived
without the consent of the Swingline Lender and no provision of Article XI may
be amended without the consent of the Administrative Agent.
SECTION 12.08. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
SECTION 12.09. Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 12.10. Survival of Indemnification.
---------------------------
All indemnities set forth herein, including, without limitation, in Section
3.05, 3.07, 4.05, 11.09 or 12.06 shall survive the execution and delivery of
this Agreement, and the making of the Loans, the repayment of the Loans and
other obligations and the termination of the Commitments hereunder.
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue; Waiver of
-----------------------------------------------------------
Jury Trial.
- -----------
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND ALL AMENDMENTS,
SUPPLEMENTS, MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO OR THERETO
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE
105
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STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) THE BORROWERS HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND
IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER CREDIT DOCUMENTS MAY BE LITIGATED IN SUCH COURTS, AND THE
BORROWERS WAIVE ANY OBJECTION WHICH THEY MAY HAVE BASED ON IMPROPER VENUE OR
FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND
- --------------------
WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENT THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED
IN SECTION 12.01(a) AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL
HAVE BEEN MAILED TO THE BORROWERS IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN
THIS SECTION 12.11 SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE
LENDERS TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
ANY ACTION OR PROCEEDING IN THE COURTS OF ANY JURISDICTION AGAINST THE BORROWERS
OR TO ENFORCE A JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. THE
BORROWERS ACKNOWLEDGE THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 12.12. Severability.
------------
If any provision of this Agreement is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
SECTION 12.13. Term.
----
The term of this Agreement shall be until no Loans, LOC Obligations or any
other amounts payable hereunder shall remain outstanding and until all of the
Commitments hereunder shall have terminated.
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<PAGE>
SECTION 12.14. Entirety.
--------
This Agreement and the other Credit Documents represent the entire
agreement of the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, including any commitment letters or
correspondence, relating to this Agreement or any of the other Credit Documents
or the transactions contemplated herein and therein.
[Remainder of page intentionally left blank.]
107
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IN WITNESS WHEREOF, each of the parties hereto has caused this Five-Year
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
BORROWERS: JP FOODSERVICE DISTRIBUTORS, INC.
By /s/ George T. Megas
----------------------------------
Name: George T. Megas
Title: Vice President-Finance
RYKOFF-SEXTON, INC.
By /s/ Lewis Hay, III
----------------------------------
Name: Lewis Hay, III
Title: Senior Vice President
<PAGE>
LENDERS: NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By /s/ Michael R. Heredia
----------------------------------
Name: Michael R. Heredia
Title: Senior Vice President
NATIONSBANC MONTGOMERY SECURITIES, INC.,
as Co-Arranger
By
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Name:
Title:
CHASE SECURITIES, INC.,
as Co-Arranger
By
----------------------------------
Name:
Title:
<PAGE>
LENDERS: NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Name:
Title:
NATIONSBANC MONTGOMERY SECURITIES, INC.,
as Co-Arranger
By /s/ John N. Gregg, Jr.
----------------------------------
Name: John N. Gregg, Jr.
Title: Director
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Name:
Title:
CHASE SECURITIES, INC.,
as Co-Arranger
By
----------------------------------
Name:
Title:
<PAGE>
LENDERS: NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Name:
Title:
NATIONSBANC MONTGOMERY SECURITIES, INC.,
as Co-Arranger
By
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By /s/ Karen M. Sharf
----------------------------------
Name: Karen M. Sharf
Title:
CHASE SECURITIES, INC.,
as Co-Arranger
By /s/ Suresh Ramakhishnan
----------------------------------
Name: Suresh Ramakhishnan
Title: Vice President
<PAGE>
BANKERS TRUST COMPANY
By /s/ Robert R. Telesca
----------------------------------
Name: Robert R. Telesca
Title: Assistant Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION - CHICAGO BRANCH
By
----------------------------------
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
<PAGE>
BANKERS TRUST COMPANY
By
----------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION - CHICAGO BRANCH
By /s/ Nobuo Tominaga
----------------------------------
Name: Nobuo Tominaga
Title: Chief Manager
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
<PAGE>
BANKERS TRUST COMPANY
By
----------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION - CHICAGO BRANCH
By
----------------------------------
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ J A Don
----------------------------------
Name: J A DON
Title: Vice President and Manager
BANQUE NATIONALE DE PARIS
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
<PAGE>
BANKERS TRUST COMPANY
By
----------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION - CHICAGO BRANCH
By
----------------------------------
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By
----------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By /s/ Richard L. Sted
----------------------------------
Name: Richard L. Sted
Title: Senior Vice President
By /s/ Thomas George
----------------------------------
Name: Thomas George
Title: Vice President
Corporate Banking Division
<PAGE>
BANK OF AMERICA, NT & SA,
as Documentation Agent and a Lender
By /s/ G. Burton Queen
----------------------------------
Name: G. Burton Queen
Title: Managing Director
FIRST CHICAGO NBD
By
----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
----------------------------------
Name:
Title:
<PAGE>
BANK OF AMERICA, NT & SA,
as Documentation Agent and a Lender
By
----------------------------------
Name:
Title:
FIRST NATIONAL BANK OF CHICAGO
By /s/ Amy L. Robbins
----------------------------------
Name: Amy L. Robbins
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
----------------------------------
Name:
Title:
<PAGE>
BANK OF AMERICA, NT & SA,
as Documentation Agent and a Lender
By
----------------------------------
Name:
Title:
FIRST CHICAGO NBD
By
----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By [SIGNATURE APPEARS HERE]
----------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
----------------------------------
Name:
Title:
<PAGE>
BANK OF AMERICA, NT & SA,
as Documentation Agent and a Lender
By
----------------------------------
Name:
Title:
FIRST CHICAGO NBD
By
----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ Craig Welch
----------------------------------
Name: Craig Welch
Title: First Vice President
By /s/ Cheryl Solometo
----------------------------------
Name: Cheryl Solometo
Title: Vice President
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED
By /s/ Margaret Holloway
----------------------------------
Name: Margaret Holloway
Title: Vice President & Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
RIGGS BANK, N.A.
By
----------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By
----------------------------------
Name:
Title:
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED
By
----------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ Angelo J. Balestrieri
----------------------------------
Name: Angelo J. Balestrieri
Title: Vice President
By /s/ W. Pieter C. Kodde
----------------------------------
Name: W. Pieter C. Kodde
Title: Vice President
RIGGS BANK, N.A.
By
----------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By
----------------------------------
Name:
Title:
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED
By
----------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
RIGGS BANK, N.A.
By /s/ Jeffrey P. White
----------------------------------
Name: Jeffrey P. White
Title: Vice President
THE SANWA BANK, LIMITED
By
----------------------------------
Name:
Title:
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED
By
----------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
RIGGS BANK, N.A.
By
----------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By /s/ Christian Kambour
----------------------------------
Name: Christian Kambour
Title: Vice President
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ David J. McCann
----------------------------------
Name: David J. McCann
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF MARYLAND
By
----------------------------------
Name:
Title:
LTCB NEW YORK BRANCH
By
----------------------------------
Name:
Title:
MERITA BANK LTD.
By
----------------------------------
Name:
Title:
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By
----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ Susan Elliott Benninghoff
----------------------------------
Name: Susan Elliott Benninghoff
Title: Vice President
LTCB NEW YORK BRANCH
By
----------------------------------
Name:
Title:
MERITA BANK LTD.
By
----------------------------------
Name:
Title:
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By
----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By
----------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Hiroshi Kitada
----------------------------------
Name: Hiroshi Kitada
Title: Deputy General Manager
MERITA BANK LTD.
By
----------------------------------
Name:
Title:
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By
----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF MARYLAND
By
----------------------------------
Name:
Title:
LTCB NEW YORK BRANCH
By
----------------------------------
Name:
Title:
MERITA BANK LTD.
By /s/ Clifford Abramsky
----------------------------------
Name: Clifford Abramsky
Title: Vice President
By /s/ Frank Maffei
----------------------------------
Name: Frank Maffei
Title: Vice President
<PAGE>
CRESTAR BANK
By /s/ Paul R. Beliveau
----------------------------------
Name: Paul R. Beliveau
Title: Vice President
FIRST UNION NATIONAL BANK
By
----------------------------------
Name:
Title:
THE FUJI BANK LIMITED, NEW YORK BRANCH
By
----------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By
----------------------------------
Name:
Title:
Five-Year Credit Agreement
<PAGE>
CRESTAR BANK
By
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By /s/ Ronald J. Bucci
----------------------------------
Name: Ronald J. Bucci
Title: Vice President
THE FUJI BANK LIMITED, NEW YORK BRANCH
By
----------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By
----------------------------------
Name:
Title:
Five-Year Credit Agreement
<PAGE>
CRESTAR BANK
By
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By
----------------------------------
Name:
Title:
THE FUJI BANK LIMITED, NEW YORK BRANCH
By /s/ Raymond Ventura
----------------------------------
Name: Raymond Ventura
Title: Vice President & Manager
WACHOVIA BANK, N.A.
By
----------------------------------
Name:
Title:
Five-Year Credit Agreement
<PAGE>
CRESTAR BANK
By
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By
----------------------------------
Name:
Title:
THE FUJI BANK LIMITED, NEW YORK BRANCH
By
----------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By /s/Fitzhugh Wickham
----------------------------------
Name: Fitzhugh Wickham
Title: Vice President
Five-Year Credit Agreement
<PAGE>
SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By /s/ Suraj P. Bhatia
----------------------------------
Name: Suraj P. Bhatia
Title: Senior Vice President
Manager, Corporate Finance Dept.
THE TOYO TRUST & BANKING CO., LTD.
By
----------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
<PAGE>
SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By
----------------------------------
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Takashi Mikumo
----------------------------------
Name: Takashi Mikumo
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
<PAGE>
SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By
----------------------------------
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD.
By
----------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By /s/ Mark R. Oluron
----------------------------------
Name: Mark R. Oluron
Title: Vice President
<PAGE>
SCHEDULE I
Lenders, Lender Addresses and Commitment Percentages
----------------------------------------------------
<TABLE>
<CAPTION>
Name and Address of Lender Revolving Commitment Commitment Percentage LOC Commitment
- ----------------------------------------- -------------------- ---------------------- --------------
<S> <C> <C> <C>
NationsBank, N.A. $36,666,666.67 6.6667% $5,000,000.00
Corporate Finance Group
6610 Rockledge Drive, 6th Floor
MD2-600-06-13
Bethesda, Maryland 20817-1876
Attn: Michael R. Heredia
Ph: (301) 571-0724
Fx: (301) 571-0719
Chase Manhattan Bank $36,666,666.67 6.6667% $5,000,000.00
270 Park Avenue, 47th Floor
New York, New York 10017
Attn: Karen Scharf
Ph: (212) 270-5659
Fx: (212)
Bank of America NT & SA $33,000,000.00 6.0000% $4,500,000.00
231 S. LaSalle Street, 9th Floor
Chicago, Illinois 60697
Attn: W. Thomas Barnett
Ph: (312) 828-3105
Fx: (312) 967-1276
</TABLE>
Schedule I - Page 1
<PAGE>
<TABLE>
<S> <C> <C> <C>
The First National Bank of Chicago $29,333,333.33 5.3333% $4,000,000.00$
153 West 51st Street
New York, New York 10019
Attn: Amy Robbins
Ph: (212) 373-1023
Fx: (212) 373-1180
with a copy to:
The First National Bank of Chicago
1 First National Plaza
Chicago, Illinois 60670
Attn: Ann Kalaska
Ph: (312) 732-1028
Fx: (312) 732-3596
PNC Bank, National Association $29,333,333.33 5.3333% $ 4,000,000.00
1600 Market Street
M/S: F2-F070-21-5
Philadelphia, Pennsylvania 19103
Attn: Gary Tyrrell
Ph: (215) 585-5934
Fx: (215) 585-5972
Credit Agricole Indosuez $25,666,666.67 4.6667% $ 3,500,000.00
520 Madison Avenue
New York, New York 10022
Attn: John McCloskey
Ph: (212) 418-2217
Fx: (212) 418-2228
</TABLE>
Schedule I - Page 2
<PAGE>
<TABLE>
<S> <C> <C> <C>
Crestar Bank $25,666,666.67 4.6667% $3,500,000.00
120 East Baltimore Street, 25th Floor
Baltimore, Maryland 21203
Attn: Paul R. Beliveau
Ph: (410) 986-1662
Fx: (410) 986-1670
First Union National Bank $25,666,666.67 4.6667% $3,500,000.00
1 East Baltimore Street, 2nd Floor
Baltimore, Maryland 21202
Attn: Ronald Bucci
Ph: (410) 244-3564
Fx: (410) 539-0136
The Fuji Bank, Limited, New York Branch $25,666,666.67 4.6667% $3,500,000.00
Two World Trade Center
79th Floor
New York, New York 10048
Attn: Irene Shen
Ph: (212) 898-2569
Fx: (212) 321-9407
Wachovia Bank, N.A. $25,666,666.67 4.6667% $3,500,000.00
191 Peachtree Street, N.E., GA307
Atlanta, Georgia 30303
Attn: Fitzhugh L. Wickham, III
Ph: (404) 332-1013
Fx: (404) 332-6898
</TABLE>
Schedule I - Page 3
<PAGE>
<TABLE>
<S> <C> <C> <C>
Bankers Trust Company $21,083,333.33 3.8333% $2,875,000.00
233 S. Wacker Drive
Suite 8400
Chicago, Illinois 60606
Attn: Christina Minnis
Ph: (312) 993-8011
Fx: (312) 993-8218
with a copy to:
Bankers Trust Company
130 Liberty Street, 31st Floor
New York, New York 10048
Attn: Robert Blank
Ph: (212) 250-4863
Fx: (212) 250-0734
The Mitsubishi Trust and Banking $21,083,333.33 3.8333% $2,875,000.00
Corporation - Chicago Branch
311 S. Wacker Drive, Suite 6300
Chicago, Illinois 60606
Attn: Vicki Kamm DeMar
Ph: (312) 408-6014
Fx: (312) 663-0863
The Bank of Tokyo - Mitsubishi Trust $16,500,000.00 3.000% $2,250,000.00
Company
2000 K Street, NW
Suite 701
Washington, DC 20006
Attn: J. Andrew Don
Ph: (202) 463-0175
Fx: (202) 493-3416
</TABLE>
Schedule I - Page 4
<PAGE>
<TABLE>
<S> <C> <C> <C>
Banque Nationale de Paris $16,500,000.00 3.0000% $2,250,000.00
499 Park Avenue, 9th Floor
New York, New York 10022
Attn: Thomas George
Ph: (212) 415-9718
Fx: (212) 415-9606
The Dai-Ichi Kangyo Bank, Ltd. $16,500,000.00 3.0000% $2,250,000.00
One World Trade Center, Suite 4911
New York, New York 10048
Attn: Doron Sabag
Ph: (212) 488-0549
Fx: (212) 524-0579 or (212) 912-1879
The First National Bank of Maryland $16,500,000.00 3.0000% $2,250,000.00
25 South Charles Street
Mail Code 101-744
Baltimore, Maryland 21201
Attn: Susan Benninghoff
Ph: (410) 244-4898
Fx: (410) 244-4294
The Long-Term Credit Bank of Japan, Limited, $16,500,000.00 3.0000% $2,250,000.00
New York Branch
165 Broadway, 49th Floor
New York, New York 10006
Attn: Maoyoshi Kasuga
Ph: (212) 335-4607
Fx: (212) 608-2371
Merita Bank Ltd. $16,500,000.00 3.0000% $2,250,000.00
437 Madison Avenue, 21st Floor
New York, New York 10022
Attn: Clifford Abramsky
Ph: (212) 318-9564
Fx: (212) 318-9318
</TABLE>
Schedule I - Page 5
<PAGE>
<TABLE>
<S> <C> <C> <C>
The Mitsui Trust and Banking Company Limited $16,500,000.00 3.0000% $2,250,000.00
New York Branch
1251 Avenue of the Americas, 39th Floor
New York, New York 10020
Attn: Paul Verdi
Ph: (212) 790-5470
Fx: (212) 790-5435
Cooperatieve Central Raiffeisen-Boerenleenbank, $16,500,000.00 3.0000% $2,250,000.00
B.A., "Rabobank Nederland", New York Branch
245 Park Avenue
New York, New York 10167
Attn: Joana M. Socowski
Ph: (212) 916-7801
Fx: (212) 916-7863
Riggs Bank, NationsBank, N.A. $16,500,000.00 3.0000% $2,250,000.00
808 17th Street, N.W., 10th Floor
Washington, DC 20006
Attn: Jeff White
Ph: (202) 835-4504
Fx: (202) 835-5977
The Sanwa Bank, Limited $16,500,000.00 3.0000% $2,250,000.00
55 E. 52nd Street
New York, New York 10055
Attn: Christian Kambour
Ph: (212) 339-6232
Fx: (212) 754-1304
</TABLE>
Schedule I - Page 6
<PAGE>
<TABLE>
<S> <C> <C> <C>
Sumitomo Trust & Banking Co., Ltd., $ 16,500,000.00 3.0000% $ 2,250,000.00
New York Branch
527 Madison Avenue
New York, New York 10022
Attn: Betsy Quirk
Ph: (212) 326-0553
Fx: (212) 418-4848
The Toyo Trust & Banking Co., Ltd. $ 16,500,000.00 3.0000% $ 2,250,000.00
666 5th Avenue, 33rd Floor
New York, New York 10103
Attn: Cuthbert Hamilton
Ph: (212) 307-3408
Fx: (212) 307-3498
U.S. Bank National Association $ 16,500,000.00 3.0000% $ 2,250,000.00
601 2nd Avenue South
MPFP0702
Minneapolis, Minnesota 55402-4302
Attn: Christopher H. Patton
Ph: (612) 973-0555
Fx: (612) 973-0825
Bank Hapoalim B.M. - - -
1515 Market Street, Suite 200
Philadelphia, Pennsylvania 19102
Attn: Ellen Frank
Ph: (215) 665-2251
Fx: (215) 665-2217 -------------------- ------------- ------------------
$550,000,000.00 100.0000% $75,000,000.00
</TABLE>
Schedule I - Page 7
<PAGE>
SCHEDULE II
Existing Letters of Credit
--------------------------
<TABLE>
<CAPTION>
================================================================================
Letter of Credit Outstanding
No. Amount Issue Date Expiry Date Beneficiary
--- ------ ---------- ----------- -----------
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
38444 $ 339,037 04/01/92 08/29/98 The Travelers
Insurance Company
- --------------------------------------------------------------------------------
38445 $5,020,500 04/01/92 05/11/98 National Union Fire
Insurance Company
- --------------------------------------------------------------------------------
41134 $ 224,000 11/10/94 07/01/98 Continental
Insurance Company
- --------------------------------------------------------------------------------
41135 $1,105,000 11/10/94 07/01/98 Continental
Insurance Company
- --------------------------------------------------------------------------------
41136 $2,760,086 11/10/94 07/01/98 The Travelers
Insurance Company
- --------------------------------------------------------------------------------
41908 $2,580,000 07/01/95 07/01/98 Union Pacific
Insurance Company
================================================================================
</TABLE>
The letters of credit listed above have been issued by NationsBank of North
Carolina, N.A.
<PAGE>
SCHEDULE II
Existing Letters of Credit
--------------------------
(a) Standby Letters of Credit
-------------------------
(issued by Bank of America for the account of Rykoff-Sexton, Inc. and its
subsidiaries)
<TABLE>
<CAPTION>
Letter of Outstanding
Credit No. Amount Issue Date Expiry Date Beneficiary
- ---------- ------ ---------- ----------- -----------
<S> <C> <C> <C> <C>
C 7323195 $5,253,424.00 3/25/97 5/1/98 Self-Insurance Plans
C 7323236 $25,000.00 5/05/97 5/5/98 Continental Casualty Co.
C 7323247 $3,807,000.00 5/17/96 6/30/97 Insurance Co. of N. America
C 7323258 $3,300,000.00 5/17/96 4/30/98 Pacific Employees Ins. Co.
C 7323269 $1,511,000.00 5/17/96 6/21/98 Pacific Employees Ins. Co.
C 7323270 $3,600,000.00 5/17/96 1/29/98 Pacific Employees Ins. Co.
C 7300928 $3,500,000.00 5/17/96 5/16/98 Pitney Bowes Credit Corp.
C 7300939 $2,500,000.00 5/17/96 5/16/98 Manufactures Bank
C 7327315 $100,000.00 4/30/97 4/30/98 PT Great Giant Pineapple Co.
C 7327326 $100,000.00 4/30/97 4/24/98 United Pacific Ins. Co.
C 7324384 $125,000.00 3/25/97 2/28/98 EMCO Foodservice Systems
</TABLE>
1
<PAGE>
(issued by The Chase Manhattan Bank for the account of US Foodservice Inc. and
its subsidiaries)
Letter of Outstanding
Credit No. Amount Issue Date Expiry Date Beneficiary
- ---------- ------ ---------- ----------- -----------
PG700010 $260,000.00 5/17/96 12/31/97 GECC (KFS)
PG700011 $195,000.00 5/17/96 12/31/97 GECC (RRS)
PG700012 $164,000.00 5/17/96 12/31/97 GECC (BBI)
PG753293 $211,738.82 5/17/96 5/15/98 GECC (WS)
PG093929 $20,000.00 5/17/96 12/31/98 ALCOA
UTILITIES
(KFS)
PG751394 $90,000.00 5/17/96 5/29/98 ASSOCIATES
LEASING
PG751190 $60,000.00 5/17/96 3/20/99 AT&T
PG751204 $300,000.00 5/17/96 3/20/98 US LEASING
PG753329 $1,000,000.00 7/18/95 12/28/98 LUMBERMAN'S
PG754420 $750,000.00 5/17/96 11/29/98 PNC BANK
(b) Commercial Letters of Credit
----------------------------
Bank of America has issued and will continue to issue prior to the merger
various trade letters of credit for product purchases for the account of
Targeted Specialty Services, Inc. in an amount not to exceed $2,500,000. The
outstanding amount of such letters of credit as of September 30, 1997, was
$873,984.94.
2
<PAGE>
SCHEDULE III
Form of Guarantor Joinder Agreement
-----------------------------------
THIS GUARANTOR JOINDER AGREEMENT (the "Agreement"), dated as of
---------
_____________, 19__, is by and between _____________________, a
___________________ (the "Subsidiary"), and NATIONSBANK, N.A., in its capacity
----------
as Administrative Agent under that certain Five Year Credit Agreement, dated as
of December 23, 1997 (as the same may be modified or amended from time to time,
the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice
----------------
Distributors, Inc. (the "Borrowers"), the Lenders party thereto, NationsBank,
---------
N.A., as Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. All of the defined
terms in the Guaranty Agreement (as defined in the Credit Agreement) are
incorporated herein by reference.
The Borrowers are required by Section 8.18 of the Credit Agreement to cause
the Subsidiary to execute this Guarantor Joinder Agreement.
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Guaranty Agreement and a "Guarantor" for all purposes of the Guaranty Agreement,
and shall have all of the obligations of a Guarantor thereunder as if it had
executed the Guaranty Agreement. The Subsidiary hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Guaranty Agreement, including without limitation all of the
undertakings and waivers set forth therein. Without limiting the generality of
the foregoing terms of this paragraph 1, the Subsidiary, subject to the
limitations set forth in Section 1 of the Guaranty Agreement, hereby jointly and
severally, together with the other Guarantors, guarantees to the Administrative
Agent and the Lenders, as provided in such Section 1 of the Guaranty Agreement,
the prompt payment when due, by acceleration or otherwise, of the Borrowers'
Obligations.
[2. If the Subsidiary is not incorporated or organized under the laws of
any State of the United States or the District of Columbia, then the Subsidiary
hereby agrees as follows:
(i)(A) Without limiting the generality of Sections 19(a) and (b) of
the Guaranty Agreement, the Subsidiary agrees that any controversy or claim
with respect to it arising out of or relating to the Guaranty Agreement
may, at the option of the Administrative Agent and the Lenders, be settled
immediately by submitting the same to binding arbitration in New York City
(or such other place as the parties may agree) in accordance with the
Commercial Arbitration Rules then obtaining of the American Arbitration
Association. Upon the request and submission of any controversy or claim
for arbitration
Schedule III - Page 1
<PAGE>
under the Guaranty Agreement, the Administrative Agent shall give the
Subsidiary not less than 45 days written notice of the request for
arbitration, the nature of the controversy or claim, and the time and place
set for arbitration. The Subsidiary agrees that such notice is reasonable
to enable it sufficient time to prepare and present its case before the
arbitration panel. Judgment on the award rendered by the arbitration panel
may be entered in any court in which any action could have been brought or
maintained pursuant to subparagraph (ii) below, including without
limitation any court of the State of New York or any Federal court sitting
in the State of New York. The expenses of arbitration shall be paid by the
Subsidiary.
(B) The provisions of subparagraph (A) above are intended to comply
with the requirements of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "Convention"). To the extent that any
provisions of such subparagraph (A) are not consistent with or fail to
conform to the requirements set out in the Convention, such subparagraph
(A) shall be deemed amended to conform to the requirements of the
Convention.
(C) The Subsidiary hereby specifically consents and submits to the
jurisdiction of the courts of the State of New York and courts of the
United States located in the State of New York for purposes of entry of a
judgment or arbitration award entered by the arbitration panel.
(D) The Subsidiary hereby irrevocably appoints ________________, with
an address on the date hereof at __________________________________ (the
"New York Process Administrative Agent"), as process agent in its name,
place and stead to receive and forward service of any and all writs,
summonses and other legal process in any suit, action or proceeding brought
in the State of New York, agrees that such service in any such suit, action
or proceeding may be made upon the New York Process Administrative Agent
and agrees to take all such action as may be necessary to continue said
appointment in full force and effect or to appoint another agent so that
the Subsidiary will at all times have an agent in the State of New York for
service of process for the above purposes.
(ii) The guarantee of the Subsidiary pursuant to the Guaranty
Agreement is (in part) an international transaction in which payment of
dollars in Charlotte, North Carolina, is of the essence, and dollars shall
be the currency of account in all events. The payment obligation of the
Subsidiary shall not be discharged by an amount paid in another currency or
in another place, whether pursuant to a judgment or otherwise, to the
extent that the amount so paid on prompt conversion to dollars and transfer
to Charlotte, North Carolina, under normal banking procedures does not
yield the amount of dollars in Charlotte, North Carolina due hereunder. In
the event that any payment by the Subsidiary, whether pursuant to a
judgment or otherwise, upon conversion and transfer does not result in
payment of such amount of dollars in Charlotte, North Carolina, the
Administrative Agent and the Lenders shall have a separate cause of action
against the
Schedule III - Page 2
<PAGE>
Subsidiary for the additional amount necessary to yield the amount due and
owing to the Administrative Agent and the Lenders.]/1/
3. This Agreement may be executed in two or more counterparts and by the
different parties hereto on separate counterparts, each constituting an
original, but all together constituting one and the same instrument.
IN WITNESS WHEREOF, the Subsidiary has caused this Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[SUBSIDIARY]
By
----------------------------
Title
-------------------------
Acknowledged and accepted:
NATIONSBANK, N.A.,
as Administrative Agent as aforesaid for
the Lenders
By
------------------------------
Title
---------------------------
- -------------------------
/1/For use only if the Subsidiary is not incorporated or organized under the law
of any state of the United States or the District of Columbia.
Schedule III - Page 3
<PAGE>
SCHEDULE IV
Form of Guaranty Agreement
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THIS GUARANTY AGREEMENT, dated as of December 23, 1997 (the "Guaranty
--------
Agreement"), is given by
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JP FOODSERVICE, INC., a Delaware corporation (the "Parent"), and THOSE
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SUBSIDIARIES of the Borrowers identified on the signature pages hereto (together
with each other subsidiary which may become a party hereto by execution of a
Guarantor Joinder Agreement, the "Guarantors"); in favor of
----------
NATIONSBANK, N.A., a national banking association, in its capacity as agent
(in such capacity, hereinafter referred to as the "Administrative Agent") for
--------------------
the various lenders from time to time parties to that certain Five Year Credit
Agreement dated as of December 23, 1997 (such Credit Agreement, as the same may
be modified or amended from time to time, being hereinafter referred to as the
"Credit Agreement") among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent (capitalized terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement).
RECITALS:
- --------
1. Pursuant to the Credit Agreement, the Lenders have agreed, subject to
certain terms and conditions, to make available certain credit facilities to the
Borrowers.
2. As a condition precedent to making such credit facilities available to
the Borrowers, the Lenders have required, among other things, the Parent and
each of the Restricted Subsidiaries (as defined in the Credit Agreement) of the
Borrowers to guarantee all of the Borrowers' obligations arising under the
Credit Agreement and the other Credit Documents referred to therein.
3. Other than the Parent, each of the Guarantors is a Restricted
Subsidiary of a Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantors hereby agree as follows:
1. Guarantee of Payment. The Guarantors hereby irrevocably and
--------------------
unconditionally guarantee, jointly and severally, to the Administrative Agent
and the Lenders the prompt
Schedule IV - Page 1
<PAGE>
payment, when due, by acceleration or otherwise, of the Borrowers' Obligations.
For the purposes hereof the "Borrowers' Obligations" means all indebtedness,
obligations and liabilities of the Borrowers under the Credit Agreement or any
other of the Credit Documents to which either Borrower is a party, now existing
or hereafter arising, due or to become due, direct or indirect, absolute or
contingent, howsoever evidenced, held or acquired, as such Borrowers'
Obligations may be modified, extended, renewed or replaced from time to time.
The guaranty of the Guarantors as set forth in this Section 1 is a guaranty of
payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, the liability of each Guarantor with respect to the
Borrowers' Obligations guaranteed hereunder shall not exceed the Maximum
Guaranteed Amount for such Guarantor. For purposes hereof:
(i) "Maximum Guaranteed Amount" shall mean, for any Guarantor as of any
date of determination thereof, the sum of (a) with respect to each
Extension of Credit (or portion thereof) the proceeds of which are used to
make a Direct Transfer to such Guarantor, the outstanding amount of such
Extension of Credit (or such portion thereof), together with accrued and
unpaid interest thereon, plus (b) with respect to each Extension of Credit
----
(or portion thereof) the proceeds of which are not used to make a Direct
Transfer to such Guarantor, the lesser of (1) the outstanding amount of all
such Extensions of Credit (or such portions thereof), together with accrued
and unpaid interest thereon, as of the earlier of the date that enforcement
is sought against such Guarantor hereunder or the date of the commencement
of a case under the U.S. Bankruptcy Code in which such Guarantor is a
debtor, or (2) 95% of the Adjusted Net Worth of such Guarantor at the time
of such Extension of Credit, after deducting therefrom the amount
determined pursuant to clause (a) above.
(ii) "Extension of Credit" shall mean the making of any Loan or the
issuance, or extension of the maturity date, of any Letters of Credit.
(iii) "Direct Transfer" shall mean, in respect of any Guarantor, (a) all
loans, advances or capital contributions made to or for the benefit of such
Guarantor with proceeds of any Extension of Credit, (b) all debt securities
or other obligations of such Guarantor acquired from such Guarantor or
retired by such Guarantor with proceeds of any Extension of Credit, (c) the
fair market value of all property acquired with proceeds of any Extension
of Credit and transferred, absolutely and not as collateral, to such
Guarantor and (d) all equity securities of such Guarantor acquired from
such Guarantor with proceeds of any Extension of Credit.
(iv) "Adjusted Net Worth" shall mean, with respect to any Guarantor as of
any date of determination thereof, the excess of (a) the amount of the
"present fair saleable value" of the assets of such Guarantor as of such
date of determination, over (b) the amount of all "liabilities, contingent
or otherwise", of such Guarantor as of such date of determination, as such
quoted terms are determined in accordance with applicable Federal and state
laws
Schedule IV - Page 2
<PAGE>
governing determinations of the insolvency of debtors. In determining the
Adjusted Net Worth of any Guarantor for purposes of calculating the Maximum
Guaranteed Amount for such Guarantor in respect of any Extension of Credit,
the liabilities of such Guarantor to be used in such determination pursuant
to clause (b) of the preceding sentence shall in any event include the
liabilities of such Guarantor hereunder in respect of all Extensions of
Credit other than the Extension of Credit in respect of which such
calculation is being made.
2. Release of Collateral, Parties Liable, etc. Each of the Guarantors
-------------------------------------------
agrees that the time or place of payment of the Borrowers' Obligations may be
changed or extended, in whole or in part, to a time certain or otherwise, and
may be renewed or accelerated, in whole or in part; that the Borrowers may be
granted indulgences generally; that any provisions of the Credit Documents or
any other documents executed in connection with this transaction may be
modified, amended or waived; that any party liable for the payment of the
Borrowers' Obligations may be granted indulgences or released; and that any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Borrowers' Obligations may be released, in whole or in part,
at, before and/or after the stated, extended or accelerated maturity of the
Borrowers' Obligations, all without notice to or further assent by the
Guarantors, or any of them, who shall remain bound thereon, notwithstanding any
such extension, renewal, acceleration, modification, indulgence or release.
3. Waiver of Rights. Each of the Guarantors expressly waives: (a)
----------------
notice of acceptance of this Guaranty Agreement by the Administrative Agent and
the Lenders and of all extensions of credit to the Borrowers by the
Administrative Agent or any Lender; (b) presentment and demand for payment of
any of the Borrowers' Obligations; (c) protest and notice of dishonor or of
default to such Guarantor or to any other party with respect to the Borrowers'
Obligations or with respect to any security therefor; (d) all other notices to
which such Guarantor might otherwise be entitled; (e) demand for payment under
this Guaranty Agreement; and (f) any right to assert against the Administrative
Agent or any Lender, as a defense, counterclaim, set-off or cross-claim, any
defense (legal or equitable), set-off, counterclaim or claim which such
Guarantor may now or hereafter have against the Administrative Agent or any
Lender or the Borrowers, but such waiver shall not prevent such Guarantor from
asserting against the Administrative Agent or any Lender in a separate action,
any claim, action, cause of action, or demand that such Guarantor might have,
whether or not arising out of this Guaranty Agreement.
4. Primary Liability of Guarantors. Each of the Guarantors agrees that
-------------------------------
this Guaranty Agreement may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of having recourse to the Borrowers
under the Credit Agreement or otherwise, and each of the Guarantors hereby
waives the right to require the Administrative Agent and the Lenders to proceed
against the Borrowers or any other person (including a co-guarantor) or to
require the Administrative Agent and the Lenders to pursue any other remedy or
enforce any other right. Each of the Guarantors further agrees that it shall
have no right of subrogation, reimbursement or indemnity whatsoever for the
Borrowers' Obligations, so long as any amounts
Schedule IV - Page 3
<PAGE>
payable to the Administrative Agent or the Lenders in respect of the Borrowers'
Obligations shall remain outstanding and until all of the Commitments under the
Credit Agreement shall have been terminated. Each of the Guarantors further
agrees that nothing contained herein shall prevent the Administrative Agent or
the Lenders from suing the Borrowers with respect to their obligations under the
Credit Agreement or from exercising any other rights available to the
Administrative Agent or the Lenders under the Credit Agreement if neither the
Borrowers nor the Guarantors timely performs the obligations of the Borrowers
thereunder, and the exercise of any of the aforesaid rights shall not constitute
a discharge of any Guarantor's obligations hereunder; it being the purpose and
intent of each of the Guarantors that such Guarantor's obligations hereunder
shall be absolute, irrevocable, independent and unconditional under any and all
circumstances. Neither the Guarantors' obligations under this Guaranty Agreement
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrowers, by reason of either
Borrower's bankruptcy or insolvency or by reason of the invalidity or
unenforceability of all or any portion of the Borrowers' Obligations. Each of
the Guarantors acknowledges that the term "Borrowers' Obligations" as used in
this Guaranty Agreement includes any payments made by either Borrower to the
Administrative Agent or any Lender and subsequently recovered by such Borrower
or a trustee for such Borrower pursuant to such Borrower's bankruptcy or
insolvency and that the guaranty of each of the Guarantors hereunder shall be
reinstated to the extent of such recovery.
5. Reasonable Attorneys' Fees. If at any time or times hereafter the
--------------------------
Administrative Agent or the Lenders employ counsel to pursue collection, to
intervene, to sue for enforcement of the terms hereof or of the Credit Agreement
or any other of the Credit Documents, or to file a petition, complaint, answer,
motion or other pleading in any suit or proceeding relating to this Guaranty
Agreement, the Credit Agreement or any other of the Credit Documents, then in
such event, all of the reasonable attorneys' fees relating thereto shall be an
additional liability of the Guarantors to the Administrative Agent and the
Lenders hereunder, payable on demand.
6. Set-off. Each Guarantor agrees that in the event such Guarantor fails
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to pay its obligations hereunder when due and payable under this Guaranty
Agreement, the Administrative Agent shall have all rights of set-off to the
extent available under, and to the extent exercised in accordance with,
applicable law.
7. Term of Guarantee; Representations and Warranties. This Guaranty
-------------------------------------------------
Agreement shall continue in full force and effect until the Borrowers'
Obligations are fully and indefeasibly paid, performed and discharged. This
Guaranty Agreement covers the Borrowers' Obligations whether presently
outstanding or arising subsequent to the date hereof including all amounts
advanced by the Administrative Agent or any Lender in stages or installments.
Each Guarantor warrants and represents to the Administrative Agent (i) that such
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (ii) that such
Guarantor has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, (iii) that the execution and delivery by such Guarantor of this
Guaranty Agreement
Schedule IV - Page 4
<PAGE>
and the other Credit Documents to which it is a party and the performance by
such Guarantor of its obligations hereunder and thereunder are within the
corporate power of such Guarantor, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for any such action or filing that
has been taken and is in full force and effect) and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or bylaws (or other organizational documents)
of such Guarantor or of any material agreement, judgment, injunction, order,
decree, or other material instrument binding upon such Guarantor or result in
the creation or imposition (other than pursuant to the Credit Documents) of any
Lien on any asset of such Guarantor and (iv) that this Guaranty Agreement and
the other Credit Documents to which such Guarantor is a party constitute valid,
binding and enforceable agreements of such Guarantor and, when executed and
delivered, will constitute valid and binding obligations of such Guarantor.
8. Further Representations and Warranties. Each Guarantor agrees that
--------------------------------------
the Administrative Agent and the Lenders will have no obligation to investigate
the financial condition or affairs of the Borrowers for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or any change in,
the financial condition or affairs of the Borrowers which might come to the
knowledge of the Administrative Agent or any Lender at any time, whether or not
the Administrative Agent or any Lender knows or believes or has reason to know
or believe that any such fact or change is unknown to such Guarantor or might
(or does) materially increase the risk of such Guarantor as guarantor or might
(or would) affect the willingness of such Guarantor to continue as guarantor
with respect to the Borrowers' Obligations.
9. Additional Liability of Guarantors. If any Guarantor is or becomes
----------------------------------
liable for any indebtedness owing by the Borrowers to the Administrative Agent
or any Lender by endorsement or otherwise other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or reduced hereby
but shall have all and the same force and effect it would have had if this
Guaranty Agreement had not existed and such Guarantor's liability hereunder
shall not be in any manner impaired or reduced thereby.
10. Cumulative Rights. All rights of the Administrative Agent and the
-----------------
Lenders hereunder or otherwise arising under any documents executed in
connection with or as security for the Borrowers' Obligations are separate and
cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Administrative
Agent or any Lender and without affecting or impairing the liability of any of
the Guarantors.
11. Usury. Notwithstanding any other provisions herein contained, no
-----
provision of this Guaranty Agreement shall require or permit the collection from
any Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in
Schedule IV - Page 5
<PAGE>
reduction of such Guarantor's obligations hereunder, and the remainder of such
excess collected shall be returned to such Guarantor once such obligations have
been fully satisfied.
12. The Administrative Agent. In acting under or by virtue of this
------------------------
Guaranty Agreement, the Administrative Agent shall be entitled to all the
rights, authority, privileges and immunities provided in Article XI of the
Credit Agreement, all of which provisions are incorporated by reference herein
with the same force and effect as if set forth herein. Each of the Guarantors
hereby releases the Administrative Agent from any liability for any act or
omission relating to this Guaranty Agreement, except such as may result from the
Administrative Agent's gross negligence or willful misconduct.
13. Restricted Subsidiaries. In the event that a Guarantor shall cease to
-----------------------
be a Restricted Subsidiary in accordance with the terms of the Credit Agreement,
then such Guarantor shall, automatically and without further act on the part of
the Administrative Agent or the Lenders, be released from its obligations under
this Guaranty Agreement.
14. Successors and Assigns. This Guaranty Agreement shall be binding on
----------------------
and enforceable against each Guarantor and its successors and assigns; provided
--------
that none of the Guarantors may assign or transfer any of its obligations
hereunder without prior written consent of the Required Lenders; provided
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further, that, except as otherwise permitted by Section 13 hereof and Section
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8.18 of the Credit Agreement, none of the Guarantors may be released from their
obligations under this Guaranty Agreement to the extent any such release would
constitute a substantial portion of the benefits provided by the Guarantors
taken as a whole without the consent of each Lender affected thereby. This
Guaranty Agreement is intended for and shall inure to the benefit of the
Administrative Agent and each Lender and each and every person who shall from
time to time be or become the owner or holder of any of the Borrowers'
Obligations, and each and every reference herein to "Administrative Agent" or
"Lender" shall include and refer to each and every successor or assignee of the
Administrative Agent or any Lender at any time holding or owning any part of or
interest in any part of the Borrowers' Obligations. This Guaranty Agreement
shall be transferable and negotiable with the same force and effect, and to the
same extent, that the Borrowers' Obligations are transferable and negotiable, it
being understood and stipulated that upon assignment or transfer by the
Administrative Agent or any Lender of any of the Borrowers' Obligations the
legal holder or owner of the Borrowers' Obligations (or a part thereof or
interest therein thus transferred or assigned by the Administrative Agent or any
Lender) shall (except as otherwise stipulated by the Administrative Agent or any
such Lender in its assignment) have and may exercise all of the rights granted
to the Administrative Agent or such Lender under this Guaranty Agreement to the
extent of that part of or interest in the Borrowers' Obligations thus assigned
or transferred to said person. Each Guarantor expressly waives notice of
transfer or assignment of the Borrowers' Obligations, or any part thereof, or of
the rights of the Administrative Agent or any Lender hereunder. Failure to give
notice will not affect the liabilities of the Guarantors hereunder.
15. Application of Payments. Each of the Administrative Agent and the
-----------------------
Lenders may apply any payments received by it from any source against that
portion of the Borrowers'
Schedule IV - Page 6
<PAGE>
Obligations (principal, interest, court costs, attorneys' fees or other) in such
priority and fashion as it may deem appropriate.
16. Modifications. Subject to the terms of Section 12.07 of the Credit
-------------
Agreement, this Guaranty Agreement and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by each of the
Guarantors affected thereby and the Administrative Agent.
17. Notices. Notices and other communications provided for herein shall
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be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to any Guarantor, to it c/o JP Foodservice Distributors, Inc., 9830
Patuxent Woods Drive, Columbia, Maryland 21046, Attention of Vice President-
Finance and Controller (Facsimile No. 410-309-6296);
(b) if to the Administrative Agent, to it at 6610 Rockledge Drive, 6th
Floor, MD2-600-06-05, Bethesda, Maryland 20817-1876, Attention of Michael R.
Heredia (Facsimile No. 301-571-0719).
All notices and other communications given to any party hereto in accordance
with the provisions of this Guaranty Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sender, or on the date five (5) Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 17 or at such
other address or telex, telecopy or other number as shall be designated by such
party in a notice to each other party complying with the terms of this Section
17.
18. Net Payments. All payments made by the Guarantors hereunder will be
------------
made without set-off or counterclaim. All payments by the Guarantors hereunder
shall be made free and clear of and without deduction or withholding for any
Taxes (as hereinafter defined), except to the extent that such deduction or
withholding is required by law. For purposes of this Section 18, "Taxes" shall
mean any present or future license, registration or other fees, taxes or other
amounts for or on account of levies, imposts, duties, deductions, withholdings
or other charges of whatsoever nature, imposed, levied, collected, withheld or
assessed by any governmental or taxing authority, excluding income and franchise
taxes imposed on a Lender (i) by a jurisdiction under which such Lender is
organized or operating in connection with this Guaranty Agreement or any
political subdivision thereof or (ii) as a result of a present or former
connection between the jurisdiction of the governmental or taxing authority
imposing such taxes and the Lender. If the Guarantors shall be required to
withhold or deduct Taxes (other than U.S. Taxes as defined in Section 4.05 of
the Credit Agreement) from any sum payable hereunder, (i) the sum payable shall
be increased as may be necessary so that the amount received is equal to the sum
which
Schedule IV - Page 7
<PAGE>
would have been received had no withholdings or deductions been made, (ii)
the Guarantors shall make such necessary withholdings or deductions and (iii)
the Guarantors shall pay the full amount withheld or deducted to the relevant
authority according to applicable law so that the Lenders shall not be required
to make any deduction or payment of Taxes. Notwithstanding anything contained
in this Section, the Guarantors shall not be required to make payment hereunder
to the extent such amounts relate to any period prior to the date that is 90
days prior to the date that the Guarantors first receive notice from such Lender
requesting payment of any such additional amounts.
19. Severability. In the event that any provision hereof shall be deemed
------------
to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
20. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
----------------------------------------------------------------
Trial.
- ------
(a) THIS GUARANTY AGREEMENT AND ALL AMENDMENTS, SUPPLEMENTS, MODIFICATIONS,
WAIVERS AND CONSENTS RELATING HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW RULES OTHER THAN SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) EACH OF THE GUARANTORS HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS GUARANTY
AGREEMENT MAY BE LITIGATED IN SUCH COURTS, AND EACH OF THE GUARANTORS WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO
--------------------
THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED IN SECTION 17 HEREOF AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN MAILED TO SUCH
GUARANTOR IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING IN THE COURTS OF ANY JURISDICTION
Schedule IV - Page 8
<PAGE>
AGAINST ANY OF THE GUARANTORS OR TO ENFORCE A JUDGMENT OBTAINED IN THE COURTS OF
ANY OTHER JURISDICTION. EACH OF THE GUARANTORS ACKNOWLEDGES THAT THE TIME AND
EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE FOR A BENCH TRIAL
AND HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
21. Headings. The headings in this instrument are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
22. Counterparts. This Guaranty Agreement may be executed in any number
------------
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Guaranty Agreement to produce or
account for more than one such counterpart.
23. Rights of the Required Lenders. All rights of the Administrative
------------------------------
Agent hereunder, if not exercised by the Administrative Agent, may be exercised
by the Required Lenders.
[Remainder of Page Intentionally Left Blank]
Schedule IV - Page 9
<PAGE>
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty
Agreement to be duly executed as of the date first above written.
JP FOODSERVICE, INC.,
a Delaware corporation
By
-------------------------------
Lewis Hay, III
Executive Vice President and Chief Financial
Officer
BEIJING CHEF, INC.,
a Delaware corporation
E & H DISTRIBUTING CO.,
(d/b/a Valley Food Distributors of Nevada),
a Nevada corporation
HARRISON'S PRIME MEATS & PROVISIONS, INC., a
Nevada corporation
JPF REAL ESTATE HOLDINGS, INC.,
a Delaware corporation
ILLINOIS FRUIT & PRODUCE CORP.,
an Illinois corporation
SKY BROS., INC.,
a Pennsylvania corporation
MAZO-LERCH COMPANY,
a Delaware corporation
TRANS-PORTE, INC.,
a Delaware corporation
EL PASADO, INC.,
a Delaware corporation
RITUALS COFFEE COMPANY,
a Delaware corporation
ROSELI PRODUCTS CORPORATION,
a Delaware corporation
SQUERI FOOD SERVICE, INC.,
an Ohio corporation
NEVADA BAKING COMPANY,
a Nevada corporation
OUTWEST MEAT COMPANY,
a Nevada corporation
HILLTOP HEARTH BAKERIES, INC.,
a Delaware corporation
CROSS VALLEY FARMS, INC.,
Schedule IV - Page 10
<PAGE>
a Delaware corporation
By:
--------------------------------------
Lewis Hay, III
Vice President
for each of the foregoing
Schedule IV - Page 11
<PAGE>
BIGGERS BROTHERS, INC.,
a Delaware corporation
BRB HOLDINGS, INC.,
a Delaware corporation
F.H. BEVEVINO & COMPANY, INC.,
a Pennsylvania corporation
FOOD DISTRIBUTION CONCEPTS, INC.,
a Delaware corporation
JOHN SEXTON & CO.,
a Delaware corporation
JP FOOD DISTRIBUTORS, INC.,
a Delaware corporation
KING'S FOODSERVICE, INC.,
a Kentucky corporation
ROANOKE RESTAURANT SERVICE, INC.,
a Virginia corporation
RYKOFF-SEXTON SERVICES, INC.,
a Nevada corporation
TARGETED SPECIALTY SERVICES, INC.,
a Delaware corporation
US FOODSERVICE OF ATLANTA, INC.,
a Delaware corporation
US FOODSERVICE OF FLORIDA, INC.,
a Delaware corporation
US FOODSERVICE OF ILLINOIS, INC.,
a Delaware corporation
US SYSTEMS DISTRIBUTION, INC.,
a Texas corporation
WHITE SWAN, INC.,
a Delaware corporation
WS HOLDINGS CORPORATION,
a Delaware corporation
By
-----------------------
Richard J. Martin
Vice President
for each of the foregoing
US FOODSERVICE, INC.,
a Delaware corporation
By
-----------------------
Richard J. Martin
Senior Vice President
Schedule IV - Page 12
<PAGE>
ACCEPTED:
NATIONSBANK, N.A.,
as Administrative Agent
as aforesaid for the Lenders
By
----------------------------
Title
------------------------
Schedule IV - Page 13
<PAGE>
SCHEDULE V
Form of Notice of Borrowing
---------------------------
NationsBank, N.A.
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attention of Kathy Mumpower
Dear Sirs:
The undersigned Borrower refers to the Five Year Credit Agreement dated as
of December 23, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.01(b)(i) of the
Credit Agreement that it requests a Revolving Loan advance, and in that
connection sets forth below the terms on which such Revolving Loan advance is
requested to be made:
<TABLE>
<S> <C>
(A) Date of advance
(which is a Business Day)
---------------------
(B) Aggregate principal amount
of advance
---------------------
(C) Interest rate basis
---------------------
(Base Rate Loan, Eurodollar
Loan, or a combination thereof)
---------------------
(D) Interest Period and the
last day thereof (if Eurodollar
Loan is requested)
---------------------
</TABLE>
The delivery of this Notice of Borrowing shall constitute a representation
and warranty by the Borrowers of the correctness of the matters specified in
Sections 5.02(b), (c) and (d) of the Credit Agreement.
Schedule V - Page 1
<PAGE>
Very truly yours,
By:
---------------------------------
Title:
------------------------------
Schedule V - Page 2
<PAGE>
SCHEDULE VA-1
Form of Competitive Bid Request
-------------------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Kathy Mumpower
Ladies and Gentlemen:
The undersigned Borrower refers to the Five Year Credit Agreement dated as
of December 23, 1997 (as amended, modified, extended or restated from time to
time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice
----------------
Distributors, Inc. (the "Borrowers"), the Lenders party thereto, NationsBank,
---------
N.A., as Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower hereby gives you notice
pursuant to Section 2.04(b) of the Credit Agreement that it requests
solicitation of Competitive Bids under the Credit Agreement, and in connection
herewith sets forth below the terms on which the related Competitive Loans
borrowing is requested to be made:
<TABLE>
<S> <C>
(A) Date of Competitive Loan borrowing
(which is a Business Day)
---------------------
(B) Principal amount of
Competitive Loan borrowing
---------------------
(C) Interest Period and the last day
thereof
---------------------
</TABLE>
The delivery of this Competitive Bid Request shall constitute a
representation and warranty by the Borrowers of the correctness of the matters
specified in Sections 5.02(b), (c) and (d) of the Credit Agreement.
Very truly yours,
By:
--------------------------
Title:
-----------------------
Schedule V - Page 3
<PAGE>
SCHEDULE VA-2
Form of Notice of Receipt of Competitive Bid Request
----------------------------------------------------
[Name of Lender]
[Address]
Attention:
Dear Sirs:
Reference is made to the Five Year Credit Agreement dated as of December
23, 1997 (as amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
- -----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. A Borrower made a Competitive Bid Request
on ____________, 19__, pursuant to Section 2.04(b) of the Credit Agreement, and
in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) on ___________, 19__ [Business Day next
succeeding the date of receipt by the Administrative Agent of the related
Competitive Bid Request]. Your Competitive Bid must comply with Section 2.04(c)
of the Credit Agreement and the terms as set forth below on which the
Competitive Bid Request was made:
<TABLE>
<S> <C>
(A) Date of Competitive Borrowing
------------------------
(B) Principal amount of
Competitive Borrowing
------------------------
(C) Interest Period and the last
day thereof
------------------------
</TABLE>
Very truly yours,
NATIONSBANK, N.A.,
as Administrative Agent
By
---------------------------
Title:
----------------------
Schedule V - Page 4
<PAGE>
SCHEDULE VA-3
Form of Competitive Bid
-----------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Kathy Mumpower
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Five Year Credit Agreement
dated as of December 23, 1997 (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 2.04(c) of the Credit Agreement, in
response to the Competitive Bid Request made by a Borrower on ____________,
19__, and in that connection sets forth below the terms on which such
Competitive Bid is made:
<TABLE>
<S> <C>
(A) Minimum (not less than $1,000,000 minimum:
and integral multiples of $1,000,000 --------------------
in excess thereof) and maximum maximum:
Principal Amounts --------------------
(B) Competitive Bid Rate(s) ----------------------------
(C) Interest Period(s) and last
day(s) thereof
----------------------------
</TABLE>
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrowers
upon acceptance by the applicable Borrower of this bid in accordance with
Section 2.04(e) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:
-----------------------------------
Schedule V - Page 5
<PAGE>
Title:
--------------------------------
Schedule V - Page 6
<PAGE>
SCHEDULE VA-4
Form of Competitive Bid Accept/Reject Letter
--------------------------------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned Borrower refers to the Five Year Credit Agreement dated as
of December 23, 1997 (as amended, modified, extended or restated from time to
time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice
----------------
Distributors, Inc. (the "Borrowers"), the Lenders party thereto, NationsBank,
---------
N.A., as Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent.
In accordance with Section 2.04(e) of the Credit Agreement, in connection
with our Competitive Bid Request dated ____________, 19__ and in accordance with
Section 2.04(e) of the Credit Agreement, we hereby accept the following bids for
maturity on [date]:
<TABLE>
<CAPTION>
Principal Amount Competitive Bid Rate Lender
- ---------------- -------------------- ------
<S> <C> <C>
$ [%]
$ [%]
We hereby reject the following bids:
<CAPTION>
Principal Amount Competitive Bid Rate Lender
- ---------------- -------------------- ------
<S> <C> <C>
$ [%]
$ [%]
</TABLE>
Very truly yours,
By:
--------------------------------
Title:
-----------------------------
Schedule V - Page 7
<PAGE>
SCHEDULE VI
Form of Notice of Extension/Conversion
--------------------------------------
NationsBank, N.A.
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attention of Kathy Mumpower
Dear Sirs:
The undersigned Borrower refers to the Five Year Credit Agreement dated as of
December 23, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned Borrower hereby gives you notice pursuant to Section 3.03 of the
Credit Agreement that it requests an extension or conversion of an outstanding
Revolving Loan and in that connection sets forth below the terms on which such
extension or conversion is requested to be made:
<TABLE>
<S> <C>
(A) Loan(s) to be extended or converted
-----------------------
(B) Date of extension or conversion
(which, in the case of a Eurodollar
Loan, is the last day of the
the applicable Interest Period)
------------------------
(C) Aggregate principal amount
of extension or conversion
------------------------
(D) Interest rate basis
(Base Rate Loan, Eurodollar
Loan, or a combination thereof)
------------------------
(E) Interest Period and the
last day thereof (if Eurodollar
Loan is requested)
------------------------
</TABLE>
Schedule VI - Page 1
<PAGE>
The delivery of this Notice of Extension/Conversion shall constitute a
representation and warranty by the Borrowers of the correctness of the matters
specified in Sections 5.02(b), (c) and (d) of the Credit Agreement.
Very truly yours,
By:
----------------------------------
Title:
-------------------------------
Schedule VI - Page 2
<PAGE>
EXHIBIT 10.1.2
FIVE YEAR GUARANTY AGREEMENT
----------------------------
THIS FIVE YEAR GUARANTY AGREEMENT, dated as of December 23, 1997 (the
"Guaranty Agreement"), is given by
JP FOODSERVICE, INC., a Delaware corporation (the "Parent"), and THOSE
SUBSIDIARIES of the Borrowers identified on the signature pages hereto (together
with each other subsidiary which may become a party hereto by execution of a
Guarantor Joinder Agreement, the "Guarantors"); in favor of
----------
NATIONSBANK, N.A., a national banking association, in its capacity as agent
(in such capacity, hereinafter referred to as the "Administrative Agent") for
--------------------
the various lenders from time to time parties to that certain Five Year Credit
Agreement dated as of December 23, 1997 (such Credit Agreement, as the same may
be modified or amended from time to time, being hereinafter referred to as the
"Credit Agreement") among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent (capitalized terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement).
RECITALS:
- --------
1. Pursuant to the Credit Agreement, the Lenders have agreed, subject to
certain terms and conditions, to make available certain credit facilities to the
Borrowers.
2. As a condition precedent to making such credit facilities available to
the Borrowers, the Lenders have required, among other things, the Parent and
each of the Restricted Subsidiaries (as defined in the Credit Agreement) of the
Borrowers to guarantee all of the Borrowers' obligations arising under the
Credit Agreement and the other Credit Documents referred to therein.
3. Other than the Parent, each of the Guarantors is a Restricted
Subsidiary of a Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantors hereby agree as follows:
1. Guarantee of Payment. The Guarantors hereby irrevocably and
--------------------
unconditionally guarantee, jointly and severally, to the Administrative Agent
and the Lenders the prompt payment, when due, by acceleration or otherwise, of
the Borrowers' Obligations. For the purposes hereof the "Borrowers'
Obligations" means all indebtedness, obligations and liabilities of the
Borrowers under the Credit Agreement or any other of the Credit Documents to
which either Borrower is a party, now existing or hereafter arising, due or to
become due, direct or
<PAGE>
indirect, absolute or contingent, howsoever evidenced, held or acquired, as such
Borrowers' Obligations may be modified, extended, renewed or replaced from time
to time. The guaranty of the Guarantors as set forth in this Section 1 is a
guaranty of payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, the liability of each Guarantor with respect to the
Borrowers' Obligations guaranteed hereunder shall not exceed the Maximum
Guaranteed Amount for such Guarantor. For purposes hereof:
(i) "Maximum Guaranteed Amount" shall mean, for any Guarantor as of any
date of determination thereof, the sum of (a) with respect to each
Extension of Credit (or portion thereof) the proceeds of which are used to
make a Direct Transfer to such Guarantor, the outstanding amount of such
Extension of Credit (or such portion thereof), together with accrued and
unpaid interest thereon, plus (b) with respect to each Extension of Credit
----
(or portion thereof) the proceeds of which are not used to make a Direct
Transfer to such Guarantor, the lesser of (1) the outstanding amount of all
such Extensions of Credit (or such portions thereof), together with accrued
and unpaid interest thereon, as of the earlier of the date that enforcement
is sought against such Guarantor hereunder or the date of the commencement
of a case under the U.S. Bankruptcy Code in which such Guarantor is a
debtor, or (2) 95% of the Adjusted Net Worth of such Guarantor at the time
of such Extension of Credit, after deducting therefrom the amount
determined pursuant to clause (a) above.
(ii) "Extension of Credit" shall mean the making of any Loan or the
issuance, or extension of the maturity date, of any Letters of Credit.
(iii) "Direct Transfer" shall mean, in respect of any Guarantor, (a) all
loans, advances or capital contributions made to or for the benefit of such
Guarantor with proceeds of any Extension of Credit, (b) all debt securities
or other obligations of such Guarantor acquired from such Guarantor or
retired by such Guarantor with proceeds of any Extension of Credit, (c) the
fair market value of all property acquired with proceeds of any Extension
of Credit and transferred, absolutely and not as collateral, to such
Guarantor and (d) all equity securities of such Guarantor acquired from
such Guarantor with proceeds of any Extension of Credit.
(iv) "Adjusted Net Worth" shall mean, with respect to any Guarantor as of
any date of determination thereof, the excess of (a) the amount of the
"present fair saleable value" of the assets of such Guarantor as of such
date of determination, over (b) the amount of all "liabilities, contingent
or otherwise", of such Guarantor as of such date of determination, as such
quoted terms are determined in accordance with applicable Federal and state
laws governing determinations of the insolvency of debtors. In determining
the Adjusted Net Worth of any Guarantor for purposes of calculating the
Maximum Guaranteed Amount for such Guarantor in respect of any Extension of
Credit, the liabilities of such Guarantor to be used in such determination
pursuant to clause (b) of the preceding sentence shall in any event include
the liabilities of such Guarantor hereunder in respect of all Extensions
2
<PAGE>
of Credit other than the Extension of Credit in respect of which such
calculation is being made.
2. Release of Collateral, Parties Liable, etc. Each of the Guarantors
-------------------------------------------
agrees that the time or place of payment of the Borrowers' Obligations may be
changed or extended, in whole or in part, to a time certain or otherwise, and
may be renewed or accelerated, in whole or in part; that the Borrowers may be
granted indulgences generally; that any provisions of the Credit Documents or
any other documents executed in connection with this transaction may be
modified, amended or waived; that any party liable for the payment of the
Borrowers' Obligations may be granted indulgences or released; and that any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Borrowers' Obligations may be released, in whole or in part,
at, before and/or after the stated, extended or accelerated maturity of the
Borrowers' Obligations, all without notice to or further assent by the
Guarantors, or any of them, who shall remain bound thereon, notwithstanding any
such extension, renewal, acceleration, modification, indulgence or release.
3. Waiver of Rights. Each of the Guarantors expressly waives: (a)
----------------
notice of acceptance of this Guaranty Agreement by the Administrative Agent and
the Lenders and of all extensions of credit to the Borrowers by the
Administrative Agent or any Lender; (b) presentment and demand for payment of
any of the Borrowers' Obligations; (c) protest and notice of dishonor or of
default to such Guarantor or to any other party with respect to the Borrowers'
Obligations or with respect to any security therefor; (d) all other notices to
which such Guarantor might otherwise be entitled; (e) demand for payment under
this Guaranty Agreement; and (f) any right to assert against the Administrative
Agent or any Lender, as a defense, counterclaim, set-off or cross-claim, any
defense (legal or equitable), set-off, counterclaim or claim which such
Guarantor may now or hereafter have against the Administrative Agent or any
Lender or the Borrowers, but such waiver shall not prevent such Guarantor from
asserting against the Administrative Agent or any Lender in a separate action,
any claim, action, cause of action, or demand that such Guarantor might have,
whether or not arising out of this Guaranty Agreement.
4. Primary Liability of Guarantors. Each of the Guarantors agrees that
-------------------------------
this Guaranty Agreement may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of having recourse to the Borrowers
under the Credit Agreement or otherwise, and each of the Guarantors hereby
waives the right to require the Administrative Agent and the Lenders to proceed
against the Borrowers or any other person (including a co-guarantor) or to
require the Administrative Agent and the Lenders to pursue any other remedy or
enforce any other right. Each of the Guarantors further agrees that it shall
have no right of subrogation, reimbursement or indemnity whatsoever for the
Borrowers' Obligations, so long as any amounts payable to the Administrative
Agent or the Lenders in respect of the Borrowers' Obligations shall remain
outstanding and until all of the Commitments under the Credit Agreement shall
have been terminated. Each of the Guarantors further agrees that nothing
contained herein shall prevent the Administrative Agent or the Lenders from
suing the Borrowers with respect to their obligations under the Credit Agreement
or from exercising any other rights available to the Administrative Agent or the
Lenders under the Credit Agreement if neither the Borrowers nor the
3
<PAGE>
Guarantors timely performs the obligations of the Borrowers thereunder, and the
exercise of any of the aforesaid rights shall not constitute a discharge of any
Guarantor's obligations hereunder; it being the purpose and intent of each of
the Guarantors that such Guarantor's obligations hereunder shall be absolute,
irrevocable, independent and unconditional under any and all circumstances.
Neither the Guarantors' obligations under this Guaranty Agreement nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by an impairment, modification, change, release or
limitation of the liability of the Borrowers, by reason of either Borrower's
bankruptcy or insolvency or by reason of the invalidity or unenforceability of
all or any portion of the Borrowers' Obligations. Each of the Guarantors
acknowledges that the term "Borrowers' Obligations" as used in this Guaranty
Agreement includes any payments made by either Borrower to the Administrative
Agent or any Lender and subsequently recovered by such Borrower or a trustee for
such Borrower pursuant to such Borrower's bankruptcy or insolvency and that the
guaranty of each of the Guarantors hereunder shall be reinstated to the extent
of such recovery.
5. Reasonable Attorneys' Fees. If at any time or times hereafter the
--------------------------
Administrative Agent or the Lenders employ counsel to pursue collection, to
intervene, to sue for enforcement of the terms hereof or of the Credit Agreement
or any other of the Credit Documents, or to file a petition, complaint, answer,
motion or other pleading in any suit or proceeding relating to this Guaranty
Agreement, the Credit Agreement or any other of the Credit Documents, then in
such event, all of the reasonable attorneys' fees relating thereto shall be an
additional liability of the Guarantors to the Administrative Agent and the
Lenders hereunder, payable on demand.
6. Set-off. Each Guarantor agrees that in the event such Guarantor fails
-------
to pay its obligations hereunder when due and payable under this Guaranty
Agreement, the Administrative Agent shall have all rights of set-off to the
extent available under, and to the extent exercised in accordance with,
applicable law.
7. Term of Guarantee; Representations and Warranties. This Guaranty
-------------------------------------------------
Agreement shall continue in full force and effect until the Borrowers'
Obligations are fully and indefeasibly paid, performed and discharged. This
Guaranty Agreement covers the Borrowers' Obligations whether presently
outstanding or arising subsequent to the date hereof including all amounts
advanced by the Administrative Agent or any Lender in stages or installments.
Each Guarantor warrants and represents to the Administrative Agent (i) that such
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (ii) that such
Guarantor has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, (iii) that the execution and delivery by such Guarantor of this
Guaranty Agreement and the other Credit Documents to which it is a party and the
performance by such Guarantor of its obligations hereunder and thereunder are
within the corporate power of such Guarantor, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official (except for any such action or
filing that has been taken and is in full force and effect) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or bylaws (or other
organizational documents) of such Guarantor or of any material agreement,
4
<PAGE>
judgment, injunction, order, decree, or other material instrument binding upon
such Guarantor or result in the creation or imposition (other than pursuant to
the Credit Documents) of any Lien on any asset of such Guarantor and (iv) that
this Guaranty Agreement and the other Credit Documents to which such Guarantor
is a party constitute valid, binding and enforceable agreements of such
Guarantor and, when executed and delivered, will constitute valid and binding
obligations of such Guarantor.
8. Further Representations and Warranties. Each Guarantor agrees that
--------------------------------------
the Administrative Agent and the Lenders will have no obligation to investigate
the financial condition or affairs of the Borrowers for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or any change in,
the financial condition or affairs of the Borrowers which might come to the
knowledge of the Administrative Agent or any Lender at any time, whether or not
the Administrative Agent or any Lender knows or believes or has reason to know
or believe that any such fact or change is unknown to such Guarantor or might
(or does) materially increase the risk of such Guarantor as guarantor or might
(or would) affect the willingness of such Guarantor to continue as guarantor
with respect to the Borrowers' Obligations.
9. Additional Liability of Guarantors. If any Guarantor is or becomes
----------------------------------
liable for any indebtedness owing by the Borrowers to the Administrative Agent
or any Lender by endorsement or otherwise other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or reduced hereby
but shall have all and the same force and effect it would have had if this
Guaranty Agreement had not existed and such Guarantor's liability hereunder
shall not be in any manner impaired or reduced thereby.
10. Cumulative Rights. All rights of the Administrative Agent and the
-----------------
Lenders hereunder or otherwise arising under any documents executed in
connection with or as security for the Borrowers' Obligations are separate and
cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Administrative
Agent or any Lender and without affecting or impairing the liability of any of
the Guarantors.
11. Usury. Notwithstanding any other provisions herein contained, no
-----
provision of this Guaranty Agreement shall require or permit the collection from
any Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in reduction of
such Guarantor's obligations hereunder, and the remainder of such excess
collected shall be returned to such Guarantor once such obligations have been
fully satisfied.
12. The Administrative Agent. In acting under or by virtue of this
------------------------
Guaranty Agreement, the Administrative Agent shall be entitled to all the
rights, authority, privileges and immunities provided in Article XI of the
Credit Agreement, all of which provisions are incorporated by reference herein
with the same force and effect as if set forth herein. Each of the Guarantors
hereby releases the Administrative Agent from any liability for any act or
omission
5
<PAGE>
relating to this Guaranty Agreement, except such as may result from the
Administrative Agent's gross negligence or willful misconduct.
13. Restricted Subsidiaries. In the event that a Guarantor shall cease to
-----------------------
be a Restricted Subsidiary in accordance with the terms of the Credit Agreement,
then such Guarantor shall, automatically and without further act on the part of
the Administrative Agent or the Lenders, be released from its obligations under
this Guaranty Agreement.
14. Successors and Assigns. This Guaranty Agreement shall be binding on
----------------------
and enforceable against each Guarantor and its successors and assigns; provided
--------
that none of the Guarantors may assign or transfer any of its obligations
hereunder without prior written consent of the Required Lenders; provided
--------
further, that, except as otherwise permitted by Section 13 hereof and Section
- -------
8.18 of the Credit Agreement, none of the Guarantors may be released from their
obligations under this Guaranty Agreement to the extent any such release would
constitute a substantial portion of the benefits provided by the Guarantors
taken as a whole without the consent of each Lender affected thereby. This
Guaranty Agreement is intended for and shall inure to the benefit of the
Administrative Agent and each Lender and each and every person who shall from
time to time be or become the owner or holder of any of the Borrowers'
Obligations, and each and every reference herein to "Administrative Agent" or
"Lender" shall include and refer to each and every successor or assignee of the
Administrative Agent or any Lender at any time holding or owning any part of or
interest in any part of the Borrowers' Obligations. This Guaranty Agreement
shall be transferable and negotiable with the same force and effect, and to the
same extent, that the Borrowers' Obligations are transferable and negotiable, it
being understood and stipulated that upon assignment or transfer by the
Administrative Agent or any Lender of any of the Borrowers' Obligations the
legal holder or owner of the Borrowers' Obligations (or a part thereof or
interest therein thus transferred or assigned by the Administrative Agent or any
Lender) shall (except as otherwise stipulated by the Administrative Agent or any
such Lender in its assignment) have and may exercise all of the rights granted
to the Administrative Agent or such Lender under this Guaranty Agreement to the
extent of that part of or interest in the Borrowers' Obligations thus assigned
or transferred to said person. Each Guarantor expressly waives notice of
transfer or assignment of the Borrowers' Obligations, or any part thereof, or of
the rights of the Administrative Agent or any Lender hereunder. Failure to give
notice will not affect the liabilities of the Guarantors hereunder.
15. Application of Payments. Each of the Administrative Agent and the
-----------------------
Lenders may apply any payments received by it from any source against that
portion of the Borrowers' Obligations (principal, interest, court costs,
attorneys' fees or other) in such priority and fashion as it may deem
appropriate.
16. Modifications. Subject to the terms of Section 12.07 of the Credit
-------------
Agreement, this Guaranty Agreement and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by each of the
Guarantors affected thereby and the Administrative Agent.
6
<PAGE>
17. Notices. Notices and other communications provided for herein shall
-------
be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to any Guarantor, to it c/o JP Foodservice Distributors, Inc., 9830
Patuxent Woods Drive, Columbia, Maryland 21046, Attention of Vice President-
Finance and Controller (Facsimile No. 410-309-6296);
(b) if to the Administrative Agent, to it at 6610 Rockledge Drive, 6th
Floor, MD2-600-06-05, Bethesda, Maryland 20817-1876, Attention of Michael R.
Heredia (Facsimile No. 301-571-0719).
All notices and other communications given to any party hereto in accordance
with the provisions of this Guaranty Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sender, or on the date five (5) Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 17 or at such
other address or telex, telecopy or other number as shall be designated by such
party in a notice to each other party complying with the terms of this
Section 17.
18. Net Payments. All payments made by the Guarantors hereunder will be
------------
made without set-off or counterclaim. All payments by the Guarantors hereunder
shall be made free and clear of and without deduction or withholding for any
Taxes (as hereinafter defined), except to the extent that such deduction or
withholding is required by law. For purposes of this Section 18, "Taxes" shall
mean any present or future license, registration or other fees, taxes or other
amounts for or on account of levies, imposts, duties, deductions, withholdings
or other charges of whatsoever nature, imposed, levied, collected, withheld or
assessed by any governmental or taxing authority, excluding income and franchise
taxes imposed on a Lender (i) by a jurisdiction under which such Lender is
organized or operating in connection with this Guaranty Agreement or any
political subdivision thereof or (ii) as a result of a present or former
connection between the jurisdiction of the governmental or taxing authority
imposing such taxes and the Lender. If the Guarantors shall be required to
withhold or deduct Taxes (other than U.S. Taxes as defined in Section 4.05 of
the Credit Agreement) from any sum payable hereunder, (i) the sum payable shall
be increased as may be necessary so that the amount received is equal to the sum
which would have been received had no withholdings or deductions been made, (ii)
the Guarantors shall make such necessary withholdings or deductions and (iii)
the Guarantors shall pay the full amount withheld or deducted to the relevant
authority according to applicable law so that the Lenders shall not be required
to make any deduction or payment of Taxes. Notwithstanding anything contained
in this Section, the Guarantors shall not be required to make payment hereunder
to the extent such amounts relate to any period prior to the date that is 90
days prior to the date that the Guarantors first receive notice from such Lender
requesting payment of any such additional amounts.
7
<PAGE>
19. Severability. In the event that any provision hereof shall be deemed
------------
to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
20. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
----------------------------------------------------------------
Trial.
- ------
(a) THIS GUARANTY AGREEMENT AND ALL AMENDMENTS, SUPPLEMENTS,
MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTION 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) EACH OF THE GUARANTORS HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS GUARANTY
AGREEMENT MAY BE LITIGATED IN SUCH COURTS, AND EACH OF THE GUARANTORS WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO
--------------------
THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED IN SECTION 17 HEREOF AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN MAILED TO SUCH
GUARANTOR IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN THIS SECTION SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING IN THE COURTS OF ANY JURISDICTION AGAINST ANY OF THE GUARANTORS OR TO
ENFORCE A JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. EACH OF
THE GUARANTORS ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Headings. The headings in this instrument are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
8
<PAGE>
22. Counterparts. This Guaranty Agreement may be executed in any number
------------
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Guaranty Agreement to produce or
account for more than one such counterpart.
23. Rights of the Required Lenders. All rights of the Administrative
------------------------------
Agent hereunder, if not exercised by the Administrative Agent, may be exercised
by the Required Lenders.
[Remainder of Page Intentionally Left Blank]
9
<PAGE>
IN WITNESS WHEREOF, each of the Guarantors has caused this Five Year
Guaranty Agreement to be duly executed as of the date first above written.
JP FOODSERVICE, INC.,
a Delaware corporation
By /s/ Lewis Hay, III
--------------------------------------
Lewis Hay, III
Senior Vice President and Chief Financial Officer
BEIJING CHEF, INC.,
a Delaware corporation
E & H DISTRIBUTING CO.,
(d/b/a Valley Food Distributors of Nevada),
a Nevada corporation
HARRISON PRIME MEATS & PROVISIONS, INC.,
a Nevada corporation
JPF REAL ESTATE HOLDINGS, INC.,
a Delaware corporation
ILLINOIS FRUIT & PRODUCE CORP.,
an Illinois corporation
SKY BROS., INC.,
a Pennsylvania corporation
MAZO-LERCH COMPANY,
a Delaware corporation
TRANS-PORTE, INC.,
a Delaware corporation
EL PASADO, INC.,
a Delaware corporation
RITUALS COFFEE COMPANY,
a Delaware corporation
ROSELI PRODUCTS CORPORATION,
a Delaware corporation
SQUERI FOOD SERVICE, INC.,
an Ohio corporation
NEVADA BAKING COMPANY,
a Nevada corporation
OUTWEST MEAT COMPANY,
a Nevada corporation
HILLTOP HEARTH BAKERIES, INC.,
a Delaware corporation
CROSS VALLEY FARMS, INC.,
a Delaware corporation
By: /s/ Lewis Hay, III
--------------------------------------
Lewis Hay, III
Vice President
for each of the foregoing
<PAGE>
BIGGERS BROTHERS, INC.,
a Delaware corporation
BRB HOLDINGS, INC.,
a Delaware corporation
F.H. BEVEVINO & COMPANY, INC.,
a Pennsylvania corporation
FOOD DISTRIBUTION CONCEPTS, INC.,
a Delaware corporation
JOHN SEXTON & CO.,
a Delaware corporation
KING'S FOODSERVICE, INC.,
a Kentucky corporation
ROANOKE RESTAURANT SERVICE, INC.,
a Virginia corporation
RYKOFF-SEXTON SERVICES, INC.,
a Nevada corporation
TARGETED SPECIALTY SERVICES, INC.,
a Delaware corporation
US FOODSERVICE OF ATLANTA, INC.,
a Delaware corporation
US FOODSERVICE OF FLORIDA, INC.,
a Delaware corporation
US FOODSERVICE OF ILLINOIS, INC.,
a Delaware corporation
US SYSTEMS DISTRIBUTION, INC.,
a Texas corporation
WHITE SWAN, INC.,
a Delaware corporation
WS HOLDINGS CORPORATION,
a Delaware corporation
By /s/ Richard J. Martin
-------------------------------
Richard J. Martin
Vice President
for each of the foregoing
US FOODSERVICE, INC.,
a Delaware corporation
By /s/ Richard J. Martin
-------------------------------
Richard J. Martin
Senior Vice President
ACCEPTED:
NATIONSBANK, N.A.,
as Administrative Agent
as aforesaid for the Lenders
By /s/ Michael R. Heredia
---------------------------------
Title Senior Vice President
------------------------------
11
<PAGE>
EXHIBIT 10.2.1
364-DAY CREDIT AGREEMENT
Dated as of December 23, 1997
among
RYKOFF-SEXTON, INC.,
and
JP FOODSERVICE DISTRIBUTORS, INC.,
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A.,
as Administrative Agent,
NATIONSBANC MONTGOMERY SECURITIES, INC.
and
CHASE SECURITIES, INC.,
as Co-Arrangers,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
and
BANK OF AMERICA, NT & SA,
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS.......................................................1
SECTION 1.01. Defined Terms...........................................1
-------------
SECTION 1.02. Accounting Terms, Etc..................................31
---------------------
SECTION 1.03. Terms Generally........................................31
---------------
SECTION 1.04. Directly or Indirectly.................................31
----------------------
ARTICLE II. THE LOANS......................................................32
SECTION 2.01. Revolving Loans........................................32
---------------
SECTION 2.02 Competitive Loan Subfacility...........................35
---------------------------
SECTION 2.03. Voluntary Termination..................................37
---------------------
SECTION 2.04. Fees...................................................38
----
ARTICLE III. ADDITIONAL PROVISIONS REGARDING LOANS.........................38
SECTION 3.01. Default Rate...........................................38
------------
SECTION 3.02. Prepayments............................................38
-----------
SECTION 3.03. Extension and Conversion...............................40
------------------------
SECTION 3.04. Alternate Rate of Interest.............................40
--------------------------
SECTION 3.05. Reserve Requirements; Change in Circumstances..........41
---------------------------------------------
SECTION 3.06. Change in Legality.....................................42
------------------
SECTION 3.07. Indemnity..............................................43
---------
SECTION 3.08. Mandatory Assignment; Commitment Termination...........43
--------------------------------------------
SECTION 3.09. Concerning Joint and Several Liability of the
---------------------------------------------
Borrowers..............................................44
---------
ARTICLE IV. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S.
TAXES; EVIDENCE OF LOANS.......................................46
SECTION 4.01. Payments and Computations..............................46
-------------------------
SECTION 4.02. Pro Rata Treatment.....................................46
------------------
SECTION 4.03. Sharing of Payments....................................47
-------------------
SECTION 4.04. Net Payments...........................................47
------------
SECTION 4.05. U.S. Taxes.............................................48
----------
SECTION 4.06. Evidence of Loans......................................50
-----------------
ARTICLE V. CONDITIONS PRECEDENT............................................50
SECTION 5.01. Conditions to Closing Date.............................50
--------------------------
SECTION 5.02. Each Extension of Credit...............................52
------------------------
ARTICLE VI. FINANCIAL STATEMENTS; INFORMATION..............................53
SECTION 6.01. Reporting Requirements.................................53
----------------------
ARTICLE VII. INSPECTION OF PROPERTIES AND BOOKS............................58
SECTION 7.01. Inspection Rights of Administrative Agent and Lenders..58
-----------------------------------------------------
ARTICLE VIII. COVENANTS....................................................59
SECTION 8.01. Maintenance of Certain Financial Conditions............59
-------------------------------------------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt............59
-------------------------------------------
SECTION 8.03. Liens..................................................60
-----
SECTION 8.04. Sale Leasebacks........................................63
---------------
SECTION 8.05. Restricted Payments; Restricted Investments............63
-------------------------------------------
SECTION 8.06. Subsidiary Stock and Debt..............................65
-------------------------
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc.............66
------------------------------------------
SECTION 8.08. Transactions with Affiliates; Tax Consolidation........67
-----------------------------------------------
SECTION 8.09. Nature of Business.....................................68
------------------
SECTION 8.10. Books and Records; Fiscal Year.........................68
------------------------------
SECTION 8.11. Corporate Existence; Licenses..........................69
-----------------------------
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc..69
-----------------------------------------------------
SECTION 8.13. Maintenance of Properties..............................69
-------------------------
SECTION 8.14. Insurance..............................................69
---------
SECTION 8.15. Compliance with Laws...................................70
--------------------
SECTION 8.16. Environmental Matters..................................71
---------------------
SECTION 8.17. Maintenance of Office..................................71
---------------------
SECTION 8.18. Future Restricted Subsidiaries.........................71
------------------------------
SECTION 8.19. Year 2000..............................................72
---------
ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS................72
SECTION 9.01. Organization and Authority of the Borrowers, etc.......72
------------------------------------------------
SECTION 9.02. Subsidiaries...........................................73
------------
SECTION 9.03. Qualification..........................................73
-------------
SECTION 9.04. Financial Statements...................................74
--------------------
SECTION 9.05. Changes, etc...........................................74
-------------
SECTION 9.06. Compliance with Laws, Other Instruments, etc...........74
--------------------------------------------
SECTION 9.07. Consents and Approvals.................................75
----------------------
SECTION 9.08. Debt, etc..............................................75
----------
SECTION 9.09. Title to Property; Leases; Investments; Existing
------------------------------------------------
Affiliate Agreements...................................75
--------------------
SECTION 9.10. Litigation.............................................76
----------
SECTION 9.11. Taxes..................................................76
-----
SECTION 9.12. Compliance with ERISA..................................77
---------------------
SECTION 9.13. Use of Loan Proceeds; Margin Regulations...............78
----------------------------------------
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc.....78
--------------------------------------------------
SECTION 9.15. Status Under Certain Statutes; Other Regulations.......79
------------------------------------------------
SECTION 9.16. Labor Matters..........................................79
-------------
SECTION 9.17. Full Disclosure........................................79
---------------
SECTION 9.18. Environmental Matters..................................79
---------------------
SECTION 9.19. Solvency...............................................80
--------
ARTICLE X. EVENTS OF DEFAULT...............................................80
SECTION 10.01. Events of Default.....................................81
-----------------
SECTION 10.02. Acceleration; Remedies................................84
----------------------
ARTICLE XI. ADMINISTRATIVE AGENT...........................................85
SECTION 11.01. Appointment and Authorization.........................85
-----------------------------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 11.02. General Immunity......................................85
----------------
SECTION 11.03. Consultation with Professionals.......................85
-------------------------------
SECTION 11.04. Documents.............................................85
---------
SECTION 11.05. Rights as a Lender....................................86
------------------
SECTION 11.06. Responsibility of Administrative Agent................86
--------------------------------------
SECTION 11.07. Action by Administrative Agent........................86
------------------------------
SECTION 11.08. Notices of Event of Default, Etc......................87
---------------------------------
SECTION 11.09. Indemnification of Administrative Agent...............87
---------------------------------------
SECTION 11.10. No Representations....................................87
------------------
SECTION 11.11. Resignation; Removal..................................88
--------------------
SECTION 11.12. Syndication Agent, Documentation Agent and
------------------------------------------
Co-Arrangers..........................................89
------------
ARTICLE XII. MISCELLANEOUS.................................................89
SECTION 12.01. Notices...............................................89
-------
SECTION 12.02. Survival of Agreement.................................90
---------------------
SECTION 12.03. Binding Effect........................................90
--------------
SECTION 12.04. Benefit of Agreement..................................90
--------------------
SECTION 12.05. No Waiver; Remedies Cumulative........................92
------------------------------
SECTION 12.06. Payment of Expenses, Etc..............................92
-------------------------
SECTION 12.07. Amendments, Waivers and Consents......................93
--------------------------------
SECTION 12.08. Counterparts..........................................93
------------
SECTION 12.09. Headings..............................................94
--------
SECTION 12.10. Survival of Indemnification...........................94
---------------------------
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue;
------------------------------------------------
Waiver of Jury Trial..................................94
--------------------
SECTION 12.12. Severability..........................................95
------------
SECTION 12.13. Term..................................................95
----
SECTION 12.14. Entirety..............................................95
--------
</TABLE>
iii
<PAGE>
SCHEDULES
---------
Schedule I Lenders, Lender Addresses and Commitment Percentages
Schedule II Intentionally Left Blank
Schedule III Form of Guarantor Joinder Agreement
Schedule IV Form of Guaranty Agreement
Schedule V Form of Notice of Borrowing
Schedule VA-1 Form of Competitive Bid Request
Schedule VA-2 Form of Notice of Receipt of Competitive Bid Request
Schedule VA-3 Form of Competitive Bid
Schedule VA-4 Form of Competitive Bid Accept/Reject Letter
Schedule VI Form of Notice of Extension/Conversion
Schedule VII Existing Investments of the Borrowers and Subsidiaries
Schedule VIII Information Concerning Subsidiaries and Qualification
Schedule IX Existing Debt of the Borrowers and Subsidiaries
Schedule X Existing Affiliate Agreements
Schedule XI Environmental Matters
Schedule XII Approvals
Schedule XIII Existing Leases of the Borrowers and Subsidiaries
Schedule XIV Form of Lender Assignment Agreement
Schedule XV Anticipated RSI Sales
iv
<PAGE>
THIS 364-DAY CREDIT AGREEMENT (as amended from time to time, the "Agreement"),
---------
dated as of December 23, 1997, is made by and among RYKOFF-SEXTON, INC., a
Delaware corporation, and JP FOODSERVICE DISTRIBUTORS, INC., a Delaware
corporation; the lenders listed on Schedule I (the "Lenders"); NATIONSBANK,
---------- -------
N.A., as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"); NATIONSBANC MONTGOMERY SECURITIES, INC. and CHASE
- ---------------------
SECURITIES, INC., as Co-Arrangers; THE CHASE MANHATTAN BANK, as Syndication
Agent; and BANK OF AMERICA, NT & SA, as Documentation Agent.
WHEREAS, the Borrowers have requested that the Lenders provide a $200 million
364-day revolving credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested credit facility available
to the Borrowers on the terms and conditions hereafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
-------------
As used in this Agreement, the following terms shall have the meanings
specified below:
"Acquired Assets" shall have the meaning assigned to such term in the
---------------
definition of "Operating Cash Flow".
"Acquired Subsidiary" shall have the meaning assigned to such term in the
-------------------
definition of "Operating Cash Flow".
"Acquired Unit Adjustment" shall have the meaning assigned to such term in
------------------------
the definition of "Operating Cash Flow".
"Additional Portion" shall have the meaning assigned to such term in
------------------
Section 8.07(f)(ii).
"Administrative Agent" shall have the meaning assigned to such term in the
--------------------
heading hereof.
"Administrative Agent's Fee Letter" means that letter agreement dated as of
---------------------------------
August 15, 1997 among the Borrowers and the Administrative Agent, as amended and
modified.
<PAGE>
"Affiliate" shall mean, with respect to any designated Person, any other
---------
Person (a) directly or indirectly, through one or more intermediaries,
controlling or controlled by or under direct or indirect common control with
such designated Person, (b) which beneficially owns or holds 5% or more of the
shares of any class of Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of such designated Person, or
(c) 5% or more of any class of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by such designated Person; provided, however, that
-------- -------
none of the Lenders shall be deemed to be an Affiliate of the Borrowers or any
of their Subsidiaries solely by reason of ownership of any obligations of the
Borrowers to such Lender hereunder and under the other Credit Documents or by
reason of having the benefits of any agreements or covenants of the Borrowers
contained in this Agreement. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Stock (or other equity interest) or by contract or
otherwise.
"Agents' Fees" shall have the meaning assigned to such term in Section
------------
2.04(b).
"Agreement" shall have the meaning assigned to such term in the heading
---------
hereof.
"Anticipated RSI Sales" shall mean the sale by either Borrower or any of
---------------------
their Restricted Subsidiaries of assets listed for sale (i) as of the Closing
Date, as identified on Schedule XV attached, or expected to be sold in
-----------
connection with the integration of the Borrowers and the Restricted Subsidiaries
following the consummation of the Merger Transaction, including the
manufacturing business and redundant assets from mergers and acquisitions, and
(ii) after the Closing Date as the Borrowers may request, subject to the
reasonable review and approval by the Administrative Agent, provided that the
Board of Directors shall determine that such assets are redundant and provide an
explanation for its conclusion and the sale shall be identified and approved
within a period of two (2) years from the Closing Date (although consummation of
any such sale may occur thereafter).
"Applicable Margin" shall mean, for purposes of calculating (i) the
-----------------
applicable interest rate for any day for any Eurodollar Loan or (ii) the
applicable rate for the Facility Fee for any day for purposes of Section
2.04(a), the applicable margin corresponding to the Total Debt Ratio described
below in effect as of the most recent Determination Date:
2
<PAGE>
<TABLE>
<CAPTION>
Applicable
Margin Applicable
for Margin
Pricing Total Debt Eurodollar for
Level Ratio Loans Facility Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
VI Greater than 4.5 to 1.0 57.5 bps 17.5 bps
V Equal to or less than 4.5 to 1.0 47.5 bps 15.0 bps
but greater than 4.0 to 1.0
IV Equal to or less than 4.0 to 1.0 37.5 bps 12.5 bps
but greater than 3.5 to 1.0
III Equal to or less than 3.5 to 1.0 30.0 bps 10.0 bps
but greater than 3.0 to 1.0
II Equal to or less than 3.0 to 1.0 24.5 bps 8.0 bps
but greater than 2.5 to 1.0
I Equal to or less than 2.5 to 1.0 19.5 bps 5.5 bps
</TABLE>
Determination of the appropriate Applicable Margins based on the Total Debt
Ratio shall be made as of each Determination Date. The Total Debt Ratio in
effect as of a Determination Date shall establish the Applicable Margins that
shall be effective as of the date designated by the Administrative Agent as the
Applicable Margin Change Date. The Administrative Agent shall determine the
Applicable Margins as of each Determination Date occurring after the Closing
Date and shall promptly notify the Borrowers and the Lenders of the Applicable
Margins so determined and of the related Applicable Margin Change Date. Such
determinations by the Administrative Agent of the Applicable Margin shall be
rebuttably presumptive evidence thereof absent manifest error. As of the
Closing Date and until the first Applicable Margin Change Date, (a) the
Applicable Margin for purposes of calculating the applicable interest rate for
any Eurodollar Loan shall be 47.5 bps and (b) the Applicable Margin for purposes
of calculating the Facility Fee shall be 15.0 bps.
"Applicable Margin Change Date" shall mean, with respect to any
-----------------------------
Determination Date, a date designated by the Administrative Agent that is not
more than five (5) Business Days after receipt by the Administrative Agent of
the Required Financial Information for such Determination Date.
"Asset Disposition" means (i) the sale or other disposition of any property
-----------------
or asset by the Borrowers and their Restricted Subsidiaries other than as
permitted by the provisions of Section 8.07(a) through (e), and (ii) receipt by
the Borrowers and their Restricted Subsidiaries of any cash insurance proceeds
or condemnation award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to their property or assets; but
excluding, in any event, Anticipated RSI Sales and Tax Reduction Transactions.
"Attributable Debt" shall mean, with respect to any Sale Leaseback which
-----------------
occurs after the date hereof (other than a Sale Leaseback which shall have been
entered into in compliance
3
<PAGE>
with Section 8.04(b)), as of any date of determination, the lesser of (a) the
fair market value of the property subject to such Sale Leaseback (as determined
by the Board of Directors) at the time of sale thereof and (b) the present value
(discounted in accordance with GAAP at the debt rate implicit in the lease of
such property) as of such date of determination of all amounts (whether
designated as rentals or additional or supplemental rentals or otherwise)
payable by the lessee during the remaining term of such Sale Leaseback
(including any period for which such Sale Leaseback has been extended and any
renewal periods as to which the lessor has the option), excluding, however,
amounts so payable on account of maintenance, ordinary repairs, insurance,
taxes, assessments and other charges which cover the cost of, or reimburse the
lessor for, costs related to such Sale Leaseback or the property subject thereto
or to the use, holding or operation thereof.
"Base Rate" shall mean, for any day, a rate per annum (rounded upwards, if
---------
necessary, to the nearest whole multiple of 1/16 of 1%) equal to the greater of
(a) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% or (b)
the Prime Rate in effect on such day. For purposes hereof, (i) "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by NationsBank as its prime rate in effect at its principal office in Charlotte,
North Carolina; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective and (ii) "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System, or, if
such rate is not so released for any day which is a Business Day, the arithmetic
average (rounded upwards to the next 1/100th of 1%), as determined by the
Administrative Agent, of the quotations for the day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be rebuttably presumptive
evidence thereof absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability of the
Administrative Agent, despite its reasonable efforts, to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" shall mean any Loan bearing interest at a rate determined
--------------
by reference to the Base Rate in accordance with the provisions of Article II.
"Board of Directors" shall mean, the Board of Directors of a Borrower or a
------------------
duly authorized committee of directors lawfully exercising the relevant powers
of such Board of Directors.
"Borrower Group Member" shall mean the Borrowers, each Subsidiary, and each
---------------------
of their respective predecessors and (a) each corporation that is or was at any
time a member of the same controlled group of corporations (within the meaning
of Section 414(b) of the Code) as the Borrowers or any Subsidiary, or any of
their respective predecessors, (b) each trade or business,
4
<PAGE>
whether or not incorporated, that is or was at any time under common control
(within the meaning of Section 414(c) of the Code) with the Borrowers or any
Subsidiary, or any of their respective predecessors, and (c) each trade or
business, whether or not incorporated, that is or was at any time a member of
the same affiliated service group (within the meaning of Sections 414(m) and (o)
of the Code) as the Borrowers or any Subsidiary, or any of their respective
predecessors.
"Borrower Premises" shall mean real property in which the Borrowers, any
-----------------
Subsidiary, or any Person which has been a Subsidiary at any time has or ever
had any direct or indirect interest, including, without limitation, ownership
thereof, or any arrangement for the lease, rental or other use thereof, or the
retention or claim of any mortgage or security interest therein or thereon.
"Borrowers" means JPFDI and RSI, together with successors and permitted
---------
assigns.
"Business Day" shall mean any day (other than a day which is a Saturday,
------------
Sunday or legal holiday in the State of North Carolina) on which banks are open
for business in Charlotte, North Carolina and New York, New York; provided,
--------
however, that, when used in connection with a Eurodollar Loan, the term
- -------
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Business or Condition", of any Person, shall mean the business,
-------- ---------
operations, assets, properties, earnings or condition (financial or other) of
such Person, provided that, such term, when used without reference to any
--------
particular Person, shall mean the Business or Condition of the Borrowers and
their Restricted Subsidiaries taken as a whole.
"Capital Lease" shall mean, as applied to any Person, any lease of any
-------------
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person or in the notes thereto, other
than, in the case of any Restricted Subsidiary, any such lease under which a
Borrower or a Predominantly Owned Restricted Subsidiary is the lessor.
"Capital Lease Obligation" shall mean, as at any date, with respect to any
------------------------
Capital Lease, the amount of the obligation of the lessee thereunder which
would, in accordance with GAAP, appear on a balance sheet of such lessee or in
the notes thereto in respect of such Capital Lease.
"Change of Control" shall mean any acquisition subsequent to the Closing
-----------------
Date by any Person or group of Persons (within the meaning of Section 13 or 14
of the Exchange Act), of (a) beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of a majority of the Voting Stock of the Company
or (b) all or substantially all of the properties and assets of the Company.
For purposes of this definition, "acquisition" by any Person or Persons of the
Voting Stock or properties and assets referred to in the preceding sentence
shall mean the earlier of (i) the actual possession thereof and (ii) the
consummation of any transaction or series of transactions which, with the
passage of time, will give such Person or Persons the actual possession thereof.
5
<PAGE>
"Change of Control Offer" shall mean the offer by RSI to purchase the
-----------------------
Indenture Notes required to be made pursuant to Article XI of the Indenture as a
result of and following consummation of the Merger Transaction.
"Chase" shall mean The Chase Manhattan Bank, a New York state banking
-----
association.
"Closing Date" shall mean the date of this Agreement.
------------
"Closing Date Intangibles" shall mean all goodwill and other intangible
------------------------
assets that appear on a consolidated balance sheet of the Borrowers and their
Restricted Subsidiaries prepared in accordance with GAAP as of the Closing Date
immediately after giving effect to the consummation of the Merger Transaction.
"Co-Arrangers" shall mean NationsBanc Montgomery Securities, Inc. and Chase
------------
Securities, Inc.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
----
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time.
"Commission" shall mean the Securities and Exchange Commission and any
----------
other similar or successor agency of the Federal government administering the
Securities Act and the Exchange Act.
"Commitment" shall mean, with respect to each Lender, the commitment of
----------
such Lender to make Revolving Loans in an aggregate principal amount at any time
outstanding of up to such Lender's Commitment Percentage multiplied by the
Revolving Committed Amount (as such Revolving Committed Amount may be reduced
from time to time pursuant to Section 2.03).
"Commitment Percentage" shall mean, for each Lender, the percentage
---------------------
identified as its Commitment Percentage opposite such Lender's name on Schedule
--------
I, as such percentage may be modified in connection with any assignment made in
- -
accordance with the terms of Section 12.04(b).
"Company" means JP Foodservice, Inc., a Delaware corporation.
-------
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
---------------
pursuant to the terms of Section 2.02.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Lender in
--------------------
accordance with the provisions of Section 2.02, the fixed rate of interest
offered by the Lender making the Competitive Bid.
6
<PAGE>
"Competitive Bid Request" means a request by a Borrower for Competitive
-----------------------
Bids in accordance with the provisions of Section 2.02(b).
"Competitive Bid Request Fee" shall have the meaning assigned to such term
---------------------------
in Section 2.04(c).
"Competitive Loan" means a loan made by a Lender in its discretion pursuant
----------------
to the provisions of Section 2.02.
"Competitive Loan Lenders" means, at any time, those Lenders which have
------------------------
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to such
-------------------------------
term in Section 2.02(a).
"Computation Period" shall have the meaning assigned to such term in
------------------
Section 8.05.
"Consolidated Net Income" shall mean, for any period, the net income (or
-----------------------
deficit) of the Borrowers and their Restricted Subsidiaries for such period
(taken as a cumulative whole) determined in accordance with GAAP on a
consolidated basis, after deducting portions of income properly attributable to
outside minority interests, if any, in the stock and surplus of any Restricted
Subsidiary; provided, however, that there shall in any event be excluded from
-------- -------
Consolidated Net Income (without duplication):
(a) amortization of Closing Date Intangibles;
(b) the income (or deficit) of any Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with a
Borrower or a Restricted Subsidiary;
(c) any amount representing the interest of a Borrower or any
Restricted Subsidiary in the earnings of any Person other than a Restricted
Subsidiary, except to the extent that any such earnings have been actually
received by a Borrower or such Restricted Subsidiary in the form of cash
dividends or similar distributions;
(d) any portion of the net income of a Restricted Subsidiary which for
any reason is unavailable for the payment of dividends to a Borrower or
another Restricted Subsidiary;
(e) any deferred credit (or amortization of a deferred credit)
representing the excess of the equity in any Person at the date of
acquisition thereof over the cost of the Investment in such Person;
(f) the proceeds of any life insurance policy;
7
<PAGE>
(g) any item properly classified as extraordinary in accordance with
GAAP; and
(h) all non-cash, non-recurring expenses, to the extent taken into
account in computing earnings or unusual or extraordinary items, charges
taken with respect to mergers and other expenses funded by equity such as
401(k) stock contributions, performance stock awards and the like;
and provided further, however, that (x) in determining Consolidated Net Income
-------- ------- -------
for any period during which JPFDI shall have sold the Everett Facility, losses
from such sale or other disposition shall be disregarded to the extent the
aggregate amount of all such losses (computed without regard to Closing Date
Intangibles allocable to such facility) does not exceed $3,300,000 on an after
tax basis and (y) gains in excess of losses during any period from the sale or
other disposition by the Borrowers or the Restricted Subsidiaries in the
ordinary course of business of trucks, forklifts, trailers, scrubbers, sweepers,
refrigerators or like equipment shall not be excluded from Consolidated Net
Income for such period.
"Consolidated Net Tangible Assets" shall mean, as of any date, the
--------------------------------
consolidated assets of the Borrowers and their Restricted Subsidiaries appearing
on a consolidated balance sheet of the Borrowers and their Restricted
Subsidiaries prepared in accordance with GAAP as of such date plus all
receivables outstanding under Permitted Receivables Financings less the sum
(without duplication) of all amounts which would appear on such balance sheet in
respect of (a) reserves for depreciation, depletion, obsolescence and/or
amortization of properties and all other reserves properly attributable to
assets set aside in connection with the business conducted by the Borrowers and
their Restricted Subsidiaries, (b) goodwill, trademarks, tradenames, copyrights,
patents, licenses, permits, franchises, unamortized debt discount and expense,
experimental and organization expense and all other assets which under GAAP are
deemed intangible, (c) any write-up in the book value of any assets subsequent
to the date of the most recent audited financial statements referred to in
Section 9.04, (d) Restricted Investments (valued at the book value thereof) and
(e) all liabilities other than minority interests, deferred taxes and Funded
Debt.
"Consolidated Net Worth" shall mean, as of any date, (a) the sum of capital
----------------------
stock (but excluding capital stock subscribed for but unissued) and surplus
(including retained earnings, additional paid-in capital and the balance of the
current profit and loss account not transferred to surplus) accounts of the
Borrowers and their Restricted Subsidiaries appearing on a consolidated balance
sheet of the Borrowers and their Restricted Subsidiaries prepared in accordance
with GAAP as of such date, after eliminating all amounts properly attributable
to outside minority interests in Restricted Subsidiaries plus (b) the amount of
the aggregate amortization of Closing Date Intangibles expensed in accordance
with GAAP subsequent to the Closing Date to and including such date of
determination to the extent such amortization has reduced the surplus accounts
of the Borrowers and their Restricted Subsidiaries appearing on a balance sheet
of the Borrowers and their Restricted Subsidiaries prepared in accordance with
GAAP as of the Closing Date (after giving effect to the consummation of the
Merger Transaction).
8
<PAGE>
"Credit Documents" shall mean this Agreement, the Guaranty Agreement
----------------
(including any Guarantor Joinder Agreement) and all other related agreements and
documents issued or delivered under this Agreement or under the Guaranty
Agreement (including any Guarantor Joinder Agreement) or pursuant hereto or
thereto.
"Credit Obligations" shall have the meaning provided in Section 3.09(b).
------------------
"Debt" shall mean, as applied to any Person, as of any date of
----
determination (without duplication):
(a) all obligations of such Person for borrowed money or evidenced by
bonds, debentures, notes, drafts or similar instruments, or upon which
interest payments are customarily made except for all such obligations of
each Restricted Subsidiary or Borrower to one or more of the Company, the
Borrowers and the other Restricted Subsidiaries;
(b) all obligations of such Person for all or any part of the deferred
purchase price of property or services (other than trade accounts payable
arising in the ordinary course of business which are not overdue by more
than 45 days or which are being contested in good faith by appropriate
proceedings) or for the cost of property constructed or of improvements;
(c) all obligations secured by any Lien other than a Lien deemed to
exist in connection with any Permitted Receivables Financing (including any
related filings of financing statements) provided that (i) for purposes of
Section 8.01(c), all Permitted Receivables Financing Amounts shall be
considered Debt, (ii) the Borrowers or any of their Restricted Subsidiaries
may consummate a Permitted Receivables Financing otherwise permitted by the
terms of this Agreement notwithstanding the provisions of Section 8.02, and
(iii) for no purpose other than determination of "Total Debt Ratio" as used
herein (including as used in the definition of "Applicable Margin" and in
Section 8.01(c)) shall any obligation incurred by the Borrowers or any of
their Restricted Subsidiaries pursuant to any Permitted Receivables
Financing be considered Debt, and it being understood and agreed that the
Permitted Receivables Financing Amount in respect of any Permitted
Receivables Financing shall be deemed to be an obligation secured by Liens
in connection with a Permitted Receivables Financing on or payable out of
the proceeds of production from property owned or held by such Person even
though such Person has not assumed or become liable for the payment of such
obligations;
(d) all Capital Lease Obligations of such Person;
(e) all preferred stock issued by such Person or required by the terms
thereof to be redeemed, or for which mandatory sinking fund payments are
due, by a fixed date;
(f) the aggregate amount of the net liability exposure of such Person
under all Hedging Agreements relating to speculative hedge arrangements
(those hedge
9
<PAGE>
arrangements which are required to be marked-to-market under GAAP) as
determined under GAAP; and
(g) all Guaranties by such Person of or with respect to obligations of
the character referred to in the foregoing clauses (a) through (f) of
another Person;
provided, however, that in determining the Debt of JPFDI, so long as the Sara
- -------- -------
Lee Offset Agreement shall remain in full force and effect and shall be
effective to permit the offset of principal and interest due under the Sara Lee
Note against principal and interest due under PYA's Note (or to establish
JPFDI's obligation in respect of the indebtedness evidenced by the Sara Lee Note
from and after a prepayment in full of PYA's Note as the remaining principal
balance of the Sara Lee Note after offset against amounts owing thereon of the
principal of and accrued and unpaid interest to the date of prepayment on the
PYA Note), the Debt evidenced by the Sara Lee Note shall be deemed equal to the
net amounts for which JPFDI is obligated under the Sara Lee Offset Agreement.
"Default" shall mean the occurrence of any default which upon notice, lapse
-------
of time or both would constitute an Event of Default.
"Determination Date" shall mean each date which shall be the last day of a
------------------
fiscal quarter of the Borrowers.
"Disposed Assets" shall have the meaning assigned to such term in the
---------------
definition of "Operating Cash Flow".
"Disposed Subsidiary" shall have the meaning assigned to such term in the
-------------------
definition of "Operating Cash Flow".
"Disposed Unit Adjustment" shall have the meaning assigned to such term in
------------------------
the definition of "Operating Cash Flow".
"Documentation Agent" means Bank of America, NT & SA, as identified in the
-------------------
heading hereto.
"Dollars", "dollars" or "$" shall mean lawful money of the United States of
------- ------- -
America.
"Eligible Assignee" shall mean (i) any Lender or any Affiliate or
-----------------
Subsidiary of a Lender, and (ii) any other commercial bank reasonably acceptable
to the Administrative Agent and the Borrowers.
"Environmental Claims" shall have the meaning assigned to such term in
--------------------
Section 9.18(c).
"Environmental Law" shall mean any past, present or future Federal, state
-----------------
or local law, or any regulation, ordinance, code, plan, Order, permit, grant,
franchise, concession, restriction or agreement issued, entered, promulgated or
approved thereunder, relating to (a) the environment,
10
<PAGE>
human health or safety, including, without limitation, emissions, discharges,
releases or threatened releases of Hazardous Substances into the environment, or
(b) the manufacture, generation, refining, processing, distribution, use, sale,
treatment, receipt, storage, disposal, transport, arranging for transport, or
handling of Hazardous Substances.
"Environmental Permits" shall mean, collectively, any and all permits,
---------------------
consents, licenses, approvals and registrations of any nature at any time
required pursuant to or in order to comply with any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Eurocurrency Liabilities" shall have the meaning assigned to such term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Loan" shall mean any Revolving Loan bearing interest at a rate
---------------
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean for the Interest Period for each Eurodollar
---------------
Loan comprising part of the same borrowing (including conversions, extensions
and renewals), a per annum interest rate equal to the per annum rate determined
by the Administrative Agent on the basis of the offered rates for deposits in
dollars for a period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), which appear on the
Reuters Screen LIBO Page as of 11:00 a.m. (London time) two (2) Business Days
before the first day of such Interest Period (provided that, if at least two
--------
such offered rates appear on the Reuters Screen LIBO Page, the rate in respect
of such Interest Period will be the arithmetic mean of such offered rates). As
used herein, "Reuters Screen LIBO Page" means the display designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Eurodollar Rate Reserve Percentage" shall mean, in respect of any Lender
----------------------------------
and any Interest Period relating to any Eurodollar Loan of such Lender, the
reserve percentage applicable to such Lender during such Interest Period under
Regulation D of the Board of Governors of the Federal Reserve System (or, if
more than one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentages shall be so applicable) for determining the reserve requirement
(including, without limitation, any marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (such Eurocurrency Liabilities having a term equal to
such Interest Period).
"Event of Default" shall have the meaning assigned to such term in Section
----------------
10.01.
11
<PAGE>
"Everett Facility" shall mean the facility owned by JPFDI on the date
----------------
hereof in Everett, Massachusetts.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
------------
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same may be in effect from time to time.
"Existing Affiliate Agreements" shall have the meaning assigned to such
-----------------------------
term in Section 8.08(a).
"Extension of Credit" shall mean the making of any Loan hereunder.
-------------------
"Facility Fee" shall have the meaning assigned to such term in Section
------------
2.04(a).
"Federal Funds Effective Rate" shall have the meaning assigned to such term
----------------------------
within the definition of "Base Rate".
"Fees" shall mean all fees payable pursuant to Section 2.04.
----
"Five Year Credit Agreement" shall mean that Five Year Credit Agreement
--------------------------
dated as of the date hereof, as amended and modified from time to time, among
the Borrowers, the Lenders identified therein and NationsBank, as Administrative
Agent.
"Fixed Charge Coverage Ratio" shall mean, for the Borrowers and their
---------------------------
Restricted Subsidiaries, as of any Determination Date, the number obtained by
dividing (a) Net Income Available for Fixed Charges for the period ("Coverage
--------
Period") of four consecutive fiscal quarters ended on such Determination Date
- ------
(on a pro forma basis (after giving effect to the Merger Transaction) for any
Determination Date that occurs prior to the third quarter of fiscal year 1999)
by (b) Fixed Charges for such Coverage Period.
"Fixed Charges" shall mean, for any period, the sum of the following
-------------
amounts: (a) Interest Expense for such period, plus (b) the aggregate amount of
----
Operating Lease Rentals accrued (whether or not actually paid) during such
period.
"Foreign Bank" shall have the meaning assigned to such term in the
------------
definition of "Restricted Investment".
"Fractional Share Cash Payments" shall mean payments of cash by the Company
------------------------------
in lieu of issuance of fractional shares of common stock of the Company in
connection with the Merger Transaction.
"Funded Debt" shall mean, as applied to any Person, as of any date of
-----------
determination thereof, all Debt of such Person, whether secured or unsecured,
having a final maturity (or which, pursuant to the terms of a revolving credit
agreement or otherwise, is renewable or extendable at the option of such Person
for a period ending) more than one year after such date of
12
<PAGE>
determination, notwithstanding the fact that (a) payments in respect thereof
(whether installment, serial maturity or sinking fund payments or otherwise) are
required to be made by such Person on demand or within one year after such date
or (b) all or any part of the amount thereof is at the time also included in
current liabilities of such Person.
"Further Period" shall have the meaning assigned to such term in Section
--------------
8.07(f)(ii).
"GAAP" shall mean generally accepted accounting principles as from time to
----
time set forth in the opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants and in statements by the
Financial Accounting Standards Board or in such opinions and statements of such
other entities as shall be approved by a significant segment of the accounting
profession in the United States of America, but subject to Section 1.02.
"Governmental Body" shall mean any Federal, state, municipal, local or
-----------------
other governmental department, commission, board, bureau, agency,
instrumentality, political subdivision or taxing authority, of any country.
"Guarantors" shall mean the Company and each of the Restricted Subsidiaries
----------
of the Borrowers which is a party to the Guaranty Agreement, including each
Subsidiary of the Borrowers which becomes a party to the Guaranty Agreement
pursuant to a Guarantor Joinder Agreement.
"Guarantor Joinder Agreement" shall mean a Guarantor Joinder Agreement
---------------------------
substantially in the form of Schedule III.
------------
"Guaranty" shall mean, as applied to any Person, any direct or indirect
--------
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of which such
Person is otherwise in any manner directly or indirectly liable, including,
without limitation, any such obligation in effect guaranteed by such Person
through any agreement (contingent or otherwise) to (a) purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or (b) maintain
the solvency or any balance sheet or other financial condition of the obligor of
such obligation, or (c) make payment for any products, materials or supplies or
for any transportation or services regardless of the non-delivery or non-
furnishing thereof, in any such case if the purpose or intent of such agreement
is to provide assurance that such obligation will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected against loss in respect thereof. For purposes
of all computations made under this Agreement, the amount of any Guaranty shall
be equal to the amount of the obligation guaranteed or, if not stated or
determined, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
13
<PAGE>
"Guaranty Agreement" shall mean the Guaranty Agreement in the form attached
------------------
as Schedule IV.
-----------
"Hazardous Substances" shall mean and include those substances included
--------------------
within the definitions of "hazardous substances," "hazardous materials," "toxic
substances" or "solid waste" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. (S) 9601 et seq.) , as amended
-- ----
by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. (S) 99-499 100
Stat. 1613), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. (S)
6901 et seq.) and the Hazardous Materials Transportation Act, (49 U.S.C. (S)
-- ----
1801 et seq.), and in the regulations promulgated pursuant to said laws, all as
-- ----
amended; and in any event shall include medical wastes, infectious wastes,
asbestos, paint containing lead, and urea formaldehyde.
"Hedging Agreement" shall mean any agreement entered into by a Person for
-----------------
protection against future fluctuations in interest rates, foreign exchange
rates, commodities prices, or the like (including, but not limited to, interest
rate and/or currency swap arrangements, interest rate, currency and/or
commodities future or option contracts, and other similar agreements) and which
creates a contingent obligation of such Person to make any payments (other than
payments in respect of any fee or charge for contracting to provide the
protection provided by such agreement) to the holder(s) thereof or
counterparty(ies) thereunder upon the culmination or termination of such
agreement or otherwise.
"IDB Debt" shall mean Debt incurred to finance the construction or
--------
acquisition of industrial or pollution control facilities pursuant to state or
local law, and recourse to a Borrower and its Restricted Subsidiaries in respect
of which is limited solely to the property subject to such Liens.
"Indenture" shall mean the Indenture dated as of November 1, 1993 between
---------
RSI and Norwest Bank Minnesota, N.A., as trustee, pursuant to which RSI issued
the Indenture Notes, as amended by the Supplemental Indenture dated as of May
17, 1996 by and among RSI, the guarantors set forth therein, and Norwest Bank
Minnesota, N.A., as trustee, as the same may be further restated, extended,
renewed, amended or otherwise modified and in effect from time to time.
"Indenture Guarantees" shall mean those certain Indenture Guarantees from
--------------------
JPFDI and each Subsidiary of the Borrowers which as of the Closing Date shall be
a Restricted Subsidiary, substantially in the form of Exhibit B to the Indenture
---------
as originally executed and delivered, providing among other things for the
subordinated guaranty by JPFDI and each Restricted Subsidiary party thereto of
all amounts from time to time owing by RSI under the Indenture, as such
Indenture Guarantees may be amended or otherwise modified from time to time
(including by any joinder agreement effective to constitute as a Guarantor under
and within the meaning thereof any Subsidiary which on or following the Closing
Date shall be designated or redesignated a Restricted Subsidiary and which shall
be or concurrently become a Guarantor under and within the meaning of the
Indenture Guarantees in compliance with Section 8.18).
14
<PAGE>
"Indenture Note" shall mean any one of the 8-7/8% Senior Subordinated Notes
--------------
due 2003 issued by RSI pursuant to the Indenture, as the same may be restated,
extended, renewed, amended, or otherwise modified and in effect from time to
time.
"Interest Expense" shall mean, as applied to any Person, for any period,
----------------
the sum of the following amounts for such Person: (a) the aggregate amount of
all interest accrued (whether or not actually paid) during such period on Debt
(including, without limitation, (i) imputed interest on Capital Lease
Obligations and (ii) all imputed interest, whether in the form of "yield",
"discount" or other similar item, that accrues in respect of the Permitted
Receivables Financing Amount of any Permitted Receivables Financing entered into
by such Person (or by any Subsidiary of such Person or any other Person
"controlled" (as such term is defined in the Securities Act) by such Person),
together with any fees payable thereunder, plus (b) amortization of debt
----
discount and expense during such period (excluding deferred financing
amortization), plus (c) all fees and commissions payable in connection with any
----
letters of credit during such period. Unless otherwise specified, any reference
to Interest Expense for any period is intended as a reference to the sum for
such period of said amounts for the Borrowers and their Restricted Subsidiaries
on a consolidated basis in accordance with GAAP after eliminating all amounts
properly attributable to outside minority interests in Restricted Subsidiaries.
"Interest Payment Date" shall mean (i) as to any Base Rate Loan, the last
---------------------
day of each March, June, September and December, the date of repayment of the
principal of such Loan and the Maturity Date and (ii) as to any Eurodollar Loan
or Competitive Loan, the last day of each Interest Period for such Loan and the
Maturity Date, and in addition where the applicable Interest Period is more than
3 months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day.
"Interest Period" shall mean (i) as to any Eurodollar Loan, a period of
---------------
one, two, three or six months' duration, as the Borrowers may elect, commencing
in each case on the date of the borrowing (including conversions, extensions and
renewals) and (ii) as to any Competitive Loan, a period commencing in each case
on the date of borrowing and ending on the date specified in the applicable
Competitive Bid whereby the offer to make such Competitive Loan was extended
(such ending date in any event to be not less than 7 nor more than 180 days from
the date of borrowing); provided, however, (A) if any Interest Period would end
-------- -------
on a day which is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day (except that, with respect to any Eurodollar
Loan, where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (B) no Interest Period
shall extend beyond the Maturity Date, (C) as to Competitive Loans, no Interest
Period shall extend beyond the Revolving Period Termination Date, and (D) in the
case of Eurodollar Loans, where an Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall, subject to clause (A)
above, end on the last Business Day of such calendar month.
15
<PAGE>
"Investment" shall mean, as applied to any designated Person, any direct or
----------
indirect purchase or other acquisition by such designated Person for cash or
other property of (a) stock, debt or other securities of any other Person, or
any direct or indirect loan, advance, extension of credit or capital
contribution by such designated Person to any other Person or any Guaranty by
such designated Person with respect to the Debt of such other Person, including
all Debt of and accounts receivable from any such other Person which are not
current assets or did not arise from sales to such other Person in the ordinary
course of business, or (b) any interest in any kind of property or assets,
whether real, personal or mixed, tangible or intangible. In computing the
amount involved in any Investment, (i) undistributed earnings of, and interest
accrued in respect of Debt owing by, any such other Person accrued after the
date of such Investment shall not be included, (ii) there shall not be deducted
from the amounts invested in any such other Person any amounts received as
earnings (in the form of dividends, interest or otherwise) on such Investment or
as loans or advances from such other Person, and (iii) unrealized increases or
decreases in value, or write-ups, write-downs or write-offs, of Investments in
any such other Person shall be disregarded.
"JPFDI" means JP Foodservice Distributors, Inc., a Delaware corporation.
-----
"Lenders" shall have the meaning assigned to such term in the heading
-------
hereof. The term "Lenders" shall also include within the meaning thereof any
Person which becomes a Lender in accordance with the terms of Section 12.04(b).
"Licenses" shall have the meaning assigned to such term in Section 9.14.
--------
"Lien" shall mean, as to any Person, any mortgage, lien (statutory or
----
other), pledge, assignment, hypothecation, adverse claim, charge, security
interest or other encumbrance in or on, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional
sale, trust receipt or other title retention agreement or Capital Lease with
respect to, any property or asset of such Person, or the signing or filing of a
financing statement which names such Person as debtor, or the signing of any
security agreement authorizing any other party as the secured party thereunder
to file any financing statement which names such Person as debtor. For purposes
of this Agreement, a Person shall be deemed to be the owner of any property
which it has placed in trust for the benefit of holders of Debt of such Person
which Debt is deemed to be extinguished under GAAP but for which such Person
remains legally liable, and such trust shall be deemed to be a Lien.
"Loan" or "Loans" shall mean the Revolving Loans (or any Revolving Loan
---- -----
bearing interest at the Base Rate or the Eurodollar Rate and referred to as a
Base Rate Loan or a Eurodollar Loan) and/or the Competitive Loans, individually
or collectively, as appropriate.
"Mandate Letter" shall mean the letter agreement dated August 15, 1997,
--------------
among the Borrowers, NationsBank and NationsBanc Montgomery Securities, Inc.
<PAGE>
"Material Adverse Change"; "Material Adverse Effect"; "Materially Adverse"
----------------------- ----------------------- ------------------
in, on or to, as appropriate, any Person, shall mean a material adverse change
in such Person's Business or Condition, a material adverse effect on such
Person's Business or Condition or an event which is materially adverse to such
Person's Business or Condition; provided that, (a) any such term, when used
--------
without reference to any particular Person, shall mean such change in or effect
on or event adverse to, as the case may be, the Borrowers and their Restricted
Subsidiaries taken as a whole, and (b) any impairment in any material respect of
the ability of the Borrowers and their Restricted Subsidiaries taken as a whole
to pay any principal, interest or Fees in accordance with the terms hereof and
of the other Credit Documents, any material impairment of the ability of the
Borrowers and their Restricted Subsidiaries taken as a whole to perform the
other material obligations of such Persons under this Agreement and the other
Credit Documents, or any circumstance or occurrence which (except a default by
the Lenders, the Administrative Agent, the Co-Arrangers, the Syndication Agent
or the Documentation Agent) would impair the enforceability as against the
Borrowers or any Restricted Subsidiary of any material term of this Agreement or
any of the other Credit Documents, shall in any case be deemed to have resulted
in a material adverse change in, to have a material adverse effect on, and to be
materially adverse to, the Borrowers' Business or Condition.
"Maturity Date" shall have the meaning given to the term "Maturity Date" in
-------------
the Five Year Credit Agreement as in effect on the Revolving Period Termination
Date.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
----------------
June 30, 1997, as amended as of September 3, 1997 and November 5, 1997, together
with all exhibits and schedules thereto, by and among the Company, Hudson
Acquisition Corp., a wholly owned subsidiary of the Company, and RSI.
"Merger Transaction" shall mean the transaction in which, among other
------------------
things, (i) RSI shall be merged with and into Hudson Acquisition Corp., a wholly
owned subsidiary of the Company, and (ii) each issued and outstanding share of
common stock of RSI, other than shares, if any, owned by RSI, the Company or
Hudson Acquisition Corp. shall be converted into the right to receive 0.775 of a
share of common stock of the Company, all upon the terms and conditions set
forth in the Merger Agreement.
"Merger Transaction Costs" shall mean costs associated with the Merger
------------------------
Transaction, which costs shall not be materially greater than the amounts
disclosed in the Registration Statement (approximately $107,000,000 pre-tax),
including, without limitation, the following costs: (i) legal, accounting,
financial advisory and other professional fees; (ii) employee severance and
change in control costs; (iii) costs of facility consolidations; (iv)
governmental filing fees and printing costs related to the Registration
Statement; and (v) the makewhole amounts payable in connection with payment of
the Notes; provided that such costs may exceed the amount so disclosed so long
as the payment or incurrence of such excess costs does not have a Material
Adverse Effect.
"Moody's" shall have the meaning assigned to such term in the definition of
-------
"Restricted Investment".
17
<PAGE>
"Multiemployer Plan" shall mean a plan defined as such in Section 3(37) of
------------------
ERISA to which any Borrower Group Member is making or incurring an obligation to
make, or has made or incurred an obligation to make, contributions.
"Multiple Employer Plan" shall mean a Plan to which any Borrower Group
----------------------
Member, and at least one employer other than a Borrower Group Member, is making
or incurring an obligation to make contributions or has made or incurred an
obligation to make contributions.
"NationsBank" shall mean NationsBank, N.A., a national banking association.
-----------
"Net Income Available for Fixed Charges" shall mean, for any period, (a)
--------------------------------------
the net income (or deficit) of the Borrowers and their Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP after eliminating all
non-cash or nonrecurring items (whether cash or non-cash and whether or not
deemed extraordinary in accordance with GAAP) for such period, plus (b) the sum
----
of the following amounts, in each case to the extent deducted in arriving at the
amount determined in accordance with the foregoing subdivision (a): (i) Interest
Expense, (ii) provisions for taxes imposed on or measured by income or excess
profits, (iii) Operating Lease Rentals accrued (whether or not actually paid),
and (iv) provision for depreciation and amortization; provided, however, that in
-------- -------
determining the net income (or deficit) of the Borrowers and their Restricted
Subsidiaries pursuant to the foregoing subdivision (a) for any period during
which JPFDI shall have sold or otherwise disposed of the Everett Facility,
losses from such sale or other disposition shall be disregarded to the extent
the aggregate amount of all such losses (computed without regard to Closing Date
Intangibles attributable to such facility) does not exceed $3,300,000 on an
after tax basis.
"Net Receivables" shall mean, on any day, in respect of any Permitted
---------------
Receivables Financing, the outstanding balance of accounts receivable sold,
transferred, pledged or otherwise subject to Liens, in each case, to or in favor
of a Receivables Financier (as hereinafter defined) in connection with such
Permitted Receivables Financing, excluding any accounts receivable not included
in the calculation of the Receivables Financier's percentage interest in the
Transferred Assets (as hereinafter defined) (it being understood that only the
percentage interest shall be included in this calculation) or borrowing base
(such excluded accounts receivable may include, without limiting the foregoing
in any manner, any such accounts receivable (x) not meeting the eligibility
criteria under such Permitted Receivables Financing, (y) exceeding the
applicable concentration limits set forth for such Permitted Receivables
Financing, or (z) which are or become defaulted, delinquent, charged-off or
otherwise cease to be creditworthy as set forth in, and as determined in
accordance with, such Permitted Receivables Financing).
"Net Sale Proceeds" shall mean, with respect to any sale of assets, an
-----------------
amount equal to the excess of
(i) the greater of (x) the aggregate gross sale price of the
assets sold in such sale and (y) the fair market value of such assets (as
determined by the Board of Directors at the time of such sale) over
18
<PAGE>
(ii) the reasonable and customary costs and expenses incurred by
a Borrower or a Restricted Subsidiary in effecting such sale.
"Net Worth Minimum" shall mean, as of any date, the sum of (i) eighty-five
-----------------
percent (85%) of Consolidated Net Worth as of December 31, 1997 (after giving
effect to the consummation of the Merger Transaction and after giving effect to
all Merger Transaction Costs) plus (ii) on the last day of each fiscal quarter
----
to occur after the Closing Date an amount (but not less than zero) equal to 50%
of the Consolidated Net Income of the Borrowers and their Restricted
Subsidiaries for such fiscal quarter, such increases to be cumulative, plus
----
(iii) eighty percent (80%) of the effect (positive or negative) on Consolidated
Net Worth from acquisitions permitted hereunder.
"Note" shall mean any one of the 8.55% Senior Notes due 2004 issued by
----
JPFDI pursuant to the Note Purchase Agreements, as the same may be restated,
extended, renewed, amended, or otherwise modified and in effect from time to
time.
"Note Guaranties" shall mean those certain Guaranty Agreements dated as of
---------------
November 10, 1994, from each Subsidiary of JPFDI which as of the Closing Date
shall be a Restricted Subsidiary, substantially in the form of Exhibit B-1 to
each of the Note Purchase Agreements as originally executed and delivered,
providing among other things for the guaranty by each Restricted Subsidiary
party thereto of all amounts from time to time owing by JPFDI under the
respective Note Purchase Agreements, as such Guaranty Agreements may be amended
or otherwise modified from time to time (including by any joinder agreement in
the form of Exhibit B-2 to each of said Note Purchase Agreements effective to
constitute as a Guarantor under and within the meaning thereof any Subsidiary of
JPFDI which on or following the Closing Date shall be designated or redesignated
a Restricted Subsidiary and which shall be or concurrently become a Guarantor
under and within the meaning of the Guaranty Agreements in compliance with
Section 8.18).
"Note Purchase Agreement" shall mean any one of the Note Purchase
-----------------------
Agreements dated as of November 10, 1994, as amended as of November 10, 1994 and
as of May 29, 1996, by and between JPFDI and the holder of the Note, as the same
may be further restated, extended, renewed, amended or otherwise modified and in
effect from time to time.
"Notice of Borrowing" shall mean a written notice of borrowing in
-------------------
substantially the form of Schedule V, as required by Section 2.01(b).
----------
"Notice of Extension/Conversion" shall mean a written notice of continuance
------------------------------
or conversion of one or more Loans in substantially the form of Schedule VI, as
-----------
required by Section 3.03.
"Officers' Certificate" shall mean a certificate executed on behalf of a
---------------------
Borrower by two of its executive officers, one of whom shall be its Chairman of
the Board of Directors (if an officer) or its Chief Executive Officer, or
President or one of its Senior Vice Presidents, and one of whom shall be its
Chief Financial Officer or Treasurer.
19
<PAGE>
"Operating Cash Flow" shall mean, for any period, (a) the net income (or
-------------------
deficit) of the Borrowers and their Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP after eliminating all non-cash or
nonrecurring items (whether cash or non-cash and whether or not deemed
extraordinary in accordance with GAAP) for such period; plus (b) the sum of the
----
following amounts, in each case to the extent deducted in arriving at such
amount determined in accordance with the foregoing subdivision (a):
(i) Interest Expense,
(ii) provisions for taxes imposed on or measured by income or
excess profits, and
(iii) provisions for depreciation and amortization, plus (c) the sum
----
(without duplication) of the following items to the extent not included in
the amounts determined pursuant to subdivisions (a) and (b) above (such sum
being herein called the "Acquired Unit Adjustment"):
------------------------
(i) the net income (or net deficit) for such period of each Person
which shall have become a Restricted Subsidiary during such period (an
"Acquired Subsidiary") after eliminating all non-cash or nonrecurring items
--------------------
(whether cash or non-cash and whether or not deemed extraordinary in
accordance with GAAP),
(ii) the net income (or net deficit) derived during such period from
any operating assets acquired by the Borrowers or a Restricted Subsidiary
during such period ("Acquired Assets"), and
---------------
(iii) the sum (without duplication) of the following items to the
extent deducted in determining net income of any Acquired Subsidiary or
derived from any Acquired Assets for such period: (A) Interest Expense of
such Acquired Subsidiary or associated with such Acquired Assets, (B)
provisions for taxes imposed on or measured by income or excess profits of
such Acquired Subsidiary or associated with such Acquired Assets, and (C)
provisions for depreciation and amortization of such Acquired Subsidiary or
associated with such Acquired Assets;
minus (d) the sum of the following items to the extent included in the amounts
- -----
determined pursuant to subdivisions (a), (b) and (c) above (such sum being
herein called the "Disposed Unit Adjustment"):
------------------------
(i) the net income (or net deficit) for such period of each Person
which shall have ceased to be a Restricted Subsidiary during such period (a
"Disposed Subsidiary") after eliminating all non-cash or nonrecurring items
-------------------
(whether cash or non-cash and whether or not deemed extraordinary in
accordance with GAAP),
20
<PAGE>
(ii) the net income (or net deficit) derived during such period from
any assets which were sold or otherwise disposed of by the Borrowers or a
Restricted Subsidiary during such period ("Disposed Assets"), and
---------------
(iii) the sum (without duplication) of the following items to the
extent deducted in determining net income of any Disposed Subsidiary or
derived from any Disposed Assets for such period: (A) Interest Expense of
such Disposed Subsidiary or associated with such Disposed Assets, (B)
provisions for taxes imposed on or measured by income or excess profits of
such Disposed Subsidiary or associated with such Disposed Assets for such
period, and (C) provisions for depreciation and amortization of such
Disposed Subsidiary or associated with such Disposed Assets;
provided, however, that (1) for purposes of determining Operating Cash Flow for
- -------- -------
any period, the Acquired Unit Adjustment and the Disposed Unit Adjustment shall
be determined by the Borrowers in accordance with sound financial practice (and
on the basis, to the extent available, of appropriate financial statements and
tax returns for such period) and shall be set forth in a certificate of the
principal financial officer of each of the Borrowers accompanied by calculations
in reasonable detail showing the manner of determination thereof, which
certificate shall be furnished to the Administrative Agent and each of the
Lenders not later than the certificate required to be furnished by the Borrowers
in respect of such period pursuant to Section 6.01(c), and (2) no amount shall
in any event be includable in Operating Cash Flow pursuant to subdivision (c) of
this definition for any period in respect of any Acquired Unit Adjustment unless
the amount and calculation thereof, as set forth in the certificate for such
period required by the foregoing clause (1), shall be reasonably acceptable to
the Required Lenders; and provided further, however, that in determining the net
-------- ------- -------
income (or deficit) of the Borrowers and their Restricted Subsidiaries pursuant
to the foregoing subdivision (a) for any period during which JPFDI shall have
sold or otherwise disposed of the Everett Facility, losses from such sale or
other disposition shall be disregarded to the extent the aggregate amount of all
such losses (computed without regard to Closing Date Intangibles attributable to
such facility) does not exceed $3,300,000 on an after tax basis.
"Operating Lease" shall mean an operating lease of property in accordance
---------------
with GAAP (real, personal or mixed) having an original term (including terms of
renewal or extension at the option of the lessor or the lessee, whether or not
any such option has been exercised) of more than one year, other than (a) a
Capital Lease and (b) in the case of any Subsidiary, any such lease under which
a Borrower or a Restricted Subsidiary is the lessor.
"Operating Lease Rentals" shall mean, as applied to the Borrowers and their
-----------------------
Restricted Subsidiaries for any period, the total amount (whether designated as
rentals or additional or supplemental rentals or otherwise) payable as lessee
under all Operating Leases during such period, including amounts so payable
during such period by reason of a lease termination or a surrender of property
but excluding amounts so payable on account of maintenance, ordinary repairs,
insurance, taxes, assessments and other charges which cover the cost of, or
reimburse the lessor for, costs related to the applicable Operating Lease or the
property subject thereto or to the use, holding or operation thereof.
21
<PAGE>
"Order" shall mean any order, writ, injunction, decree, judgment, award,
-----
determination, direction or demand.
"Participation Interest" shall mean the extension of credit by a Lender by
----------------------
way of a purchase of a participation in any Loans as provided in Section 4.03.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Payments" shall mean any payments of, or any payments made in
------------------
connection with or related to, (i) Merger Transaction Costs, (ii) Fractional
Share Cash Payments, (iii) a Change of Control Offer, (iv) a Redemption of the
Indenture Notes or (v) the prepayment of the Notes.
"Permitted Receivables Financing" shall mean any transaction involving one
-------------------------------
or more sales, contributions or other conveyances by a Borrower and/or any
Restricted Subsidiary of any accounts receivable (together with certain related
property relating thereto and the right to collections thereon, being the
"Transferred Assets") to a Subsidiary (including a Subsidiary which is a
- -------------------
Restricted Subsidiary) or Affiliate of a Borrower (with respect to any such
transaction, the "Receivables Financing SPC"), which Receivables Financing SPC
-------------------------
then either (x) sells (as determined in accordance with GAAP) such Transferred
Assets (or undivided interests therein) to any Person that is not a Subsidiary
or Affiliate of a Borrower (with respect to any such transaction, the
"Receivables Financier"), (y) borrows from such Receivables Financier and
---------------------
secures such borrowings by a pledge of such Transferred Assets and/or (z)
otherwise finances its acquisition of such Transferred Assets and, in connection
therewith, conveys an interest in such Transferred Assets to the Receivables
Financier, provided that (i) such receivables financing shall not involve any
--------
recourse to a Borrower or any Restricted Subsidiary (other than the Receivables
Financing SPC) for any reason other than (A) repurchases of non-eligible
receivables, (B) indemnifications for losses (including any adjustments for
dilutions), other than credit losses related to the receivables transferred in
such financing, and (C) payment of costs, fees, expenses and indemnities
relating to such receivables financing, (ii) such receivables financing shall
not include any Guaranty by a Borrower or any Restricted Subsidiary, it being
understood that payment by a Borrower or any Restricted Subsidiary of any amount
of the type described in the immediately preceding clause (i) which is owing by
it to the Receivables Financing SPC shall not be deemed to be a Guaranty
notwithstanding that an identical amount may be owing by the Receivables
Financing SPC to the Receivables Financier, (iii) the Administrative Agent shall
be reasonably satisfied with the structure of and documentation for any such
transaction and the terms of such transaction, including any applicable discount
at which receivables are sold to the Receivables Financier and any termination
events, shall be (in the good faith understanding of the Administrative Agent)
consistent with those prevailing in the market for similar transactions
involving receivables and originators of similar credit quality and a
receivables pool of similar characteristics or shall otherwise be reasonably
acceptable to the Administrative Agent, and (iv) the documentation for such
transaction shall not be amended or modified to permit the acquisition of
interests in the Transferred Assets by the Receivables
22
<PAGE>
Financier in excess of the Permitted Receivables Financing Over-
Collateralization Amount, to change or modify any provision of any Subordinated
Intercompany Revolving Note or any provision of any agreement relating to the
calculation of any amount due or to become due in respect thereof, or in any
other manner which, in the reasonable judgment of the Administrative Agent, is
materially inconsistent with the terms and provisions hereof (and/or any other
amendment which deals with the requirements for a Permitted Receivables
Financing) (other than, in each case, for the requirement that any such
amendment or modification (or any of the relevant documents affected thereby)
satisfy the requirements set forth in the immediately preceding clause (iii))
without the prior written approval of the Administrative Agent (which approval
shall not be unreasonably withheld). Each of the Pre-Existing Receivables
Financings constitutes a Permitted Receivables Financing.
"Permitted Receivables Financing Amount" shall mean at any time with
--------------------------------------
respect to any Permitted Receivables Financing, the aggregate balance of all
cash received by the Receivables Financing SPC from the Receivables Financier in
respect of purchase proceeds or principal under such financing minus the
aggregate amount of all payments received by the Receivables Financier and
applied to the repayments of such amounts; it being understood and agreed that
any amounts previously applied as aforesaid which are subsequently required to
be repaid, disgorged or otherwise returned by the Receivables Financier shall be
deemed to have never been received and applied by the Receivables Financier.
"Permitted Receivables Financing Over-Collateralization Amount" shall mean,
-------------------------------------------------------------
with respect to any Permitted Receivables Financing, the excess from time to
time of (x) the outstanding face amount of the Net Receivables subject to the
Receivables Financier's interest in connection with such financing (it being
understood that if such interest is a percentage interest only that percentage
of such Net Receivables shall be included in this calculation) over (y) the
Permitted Receivables Financing Amount of such Permitted Receivables Financing.
"Person" shall mean any individual, corporation, association, partnership,
------
joint venture, limited liability company, trust or estate, organization,
business, government or agency or political subdivision thereof, or any other
entity.
"Plan" shall mean any employee pension benefit plan (as defined in Section
----
3(2) of ERISA), other than a Multiemployer Plan, subject to Title IV of ERISA or
the minimum funding standards under Section 412 of the Code or Section 302 of
ERISA and established, maintained or contributed to at any time by any Borrower
Group Member.
"Predominantly Owned Restricted Subsidiary" shall mean any Restricted
-----------------------------------------
Subsidiary at least 80% of all of the equity interests of each class of which
and at least 80% of the voting interests of which shall at the time be owned by
a Borrower either directly or through one or more other Predominantly Owned
Restricted Subsidiaries.
"Pre-Existing Receivables Financings" shall mean the transactions provided
-----------------------------------
for in the Receivables Purchase Agreement dated as of May 30, 1996 among JPFDI,
Illinois Fruit & Produce Corp., Sky Bros., Inc., JPFD Funding Company and JP
Foodservice, Inc. and the
23
<PAGE>
Transfer and Administration Agreement dated as of May 30, 1996 among Enterprise
Funding Corporation, JPFD Funding Company, JPFDI, NationsBank and certain other
financial institution investors, and the transactions contemplated in the
Rykoff-Sexton Receivables Master Trust Pooling Agreement dated as of November
15, 1996 (the "Rykoff-Sexton Pooling Agreement") among RF Funding, Inc., US
-------------------------------
Foodservice, Inc. and The Chase Manhattan Bank, as supplemented by the Series
1996-1 Supplement thereto dated as of November 15, 1996, including all fundings,
financings, facilities and purchases of accounts receivable outstanding under
such agreements as of the Closing Date and any subsequent increases or
extensions of such fundings, financings, facilities or purchases (including, in
the case of the Rykoff-Sexton Pooling Agreement, the issuance of additional
certificates).
"Prime Rate" shall have the meaning assigned to such term within the
----------
definition of "Base Rate".
"Priority Debt Amount" shall mean, as of any date, that portion of Debt in
--------------------
an amount equal to the sum (without duplication) of (a) all Attributable Debt of
the Borrowers and their Restricted Subsidiaries as of such date, plus (b) the
----
aggregate principal amount outstanding on such date of all Debt of the Borrowers
and their Restricted Subsidiaries secured by Liens (other than Liens permitted
by Section 8.03(a) through (g)), plus (c) the aggregate principal amount
----
outstanding on such date of all Debt of Restricted Subsidiaries (exclusive of
(x) Debt of any Restricted Subsidiary pursuant to the Guaranty Agreement and the
Guaranty Agreement under the Five Year Credit Agreement, (y) to the extent not
exceeding in aggregate principal amount for all Restricted Subsidiaries the
aggregate original principal amount of the Indenture Notes, Debt of any
Restricted Subsidiary pursuant to the Indenture Guarantees, and (z) to the
extent not exceeding in aggregate principal amount for all Restricted
Subsidiaries the aggregate original principal amount of the Notes, Debt of any
Restricted Subsidiary pursuant to the Note Guaranties).
"PYA" shall mean PYA/Monarch, Inc., a Delaware corporation.
---
"PYA's Note" shall mean that certain promissory note of PYA, dated March
----------
10, 1989, in the original principal amount of $110,000,000, and payable to
JPFDI, which bears interest at rates between 10.35% and 10.8% per annum, as such
note shall be in effect on the Closing Date.
"Receivables Financier" shall have the meaning assigned to such term in the
---------------------
definition of "Permitted Receivables Financing" set forth in this Section 1.01.
"Receivables Financing SPC" shall have the meaning assigned to such term in
-------------------------
the definition of "Permitted Receivables Financing" set forth in this Section
1.01.
"Redemption of the Indenture Notes" shall mean (i) a redemption of the
---------------------------------
Indenture Notes, in whole or in part, by RSI pursuant to Article III of the
Indenture or (ii) a purchase of the Indenture Notes by the Company, a Borrower
or any Restricted Subsidiary pursuant to a tender offer or one or more privately
negotiated transactions.
24
<PAGE>
"Registration Statement" shall mean the Company's Registration Statement on
----------------------
Form S-4 (File No. 333-32711) declared effected by the Commission on November
24, 1997.
"Reportable Event" shall mean any of the events set forth in Section
----------------
4043(b) of ERISA or the regulations thereunder.
"Required Financial Information" shall mean, with respect to the applicable
------------------------------
Determination Date, (i) the financial statements of each of the Borrowers
required to be delivered pursuant to Section 6.01 for the fiscal period or
quarter ending as of such Determination Date, and (ii) the Officers' Certificate
required by Section 6.01 to be delivered with the financial statements described
in clause (i) above.
"Required Lenders" shall mean, at any time, Lenders which are then in
----------------
compliance with their obligations hereunder (as reasonably determined by the
Administrative Agent) and holding in the aggregate at least 51% of (i) the
Commitments to make Revolving Loans or (ii) if the Commitments have been
terminated, the outstanding Loans and Participation Interests.
"Responsible Officer" shall mean any officer of a Borrower who shall be
-------------------
permitted to sign an Officers' Certificate (as provided in the definition of
that term set forth in this Section) and any other officer of such Borrower who
shall at any time hereafter perform substantially the same duties as are
performed on the date hereof by any such officer permitted to sign an Officers'
Certificate.
"Restricted Investments" shall mean all Investments other than:
----------------------
(a) Investments in (i) readily marketable direct obligations of the
United States of America or of any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the United
States of America or readily marketable obligations unconditionally
guaranteed by the United States of America or by any such agency or
instrumentality, in each case maturing within three years from the date of
acquisition thereof, (ii) U.S. dollar denominated certificates of deposit,
time deposits or bankers' acceptances maturing within 270 days from the
date of acquisition thereof of any commercial bank (x) which is organized
under the laws of and located in the United States of America or a State
thereof ("U.S. Bank") or Canada, Japan or a member country of the European
---------
Economic Community ("Foreign Bank"), (y) which has combined capital,
------------
surplus and undivided profits of at least, in the case of a U.S. Bank,
$100,000,000 and, in the case of a Foreign Bank, $500,000,000, and (z) the
long-term debt obligations of which are rated at least A3 by Moody's
Investors Service Inc. ("Moody's") or A- by Standard & Poor's Ratings Group
-------
("S&P"), (iii) money-market preferred stock or auction rate preferred
---
stock, in each case maturing or redeemable at the option of the holder
thereof no more than one year after the date of acquisition thereof and
having a rating of at least A-2 by Moody's or A by S&P; (iv) obligations of
any state of the United States or any political subdivision thereof, the
interest with respect to which is exempt from federal income taxation under
Section 103 of the Code, having a long term rating of at least Aa-3 or AA-
by Moody's or S&P, respectively, and maturing within three years from the
date
25
<PAGE>
of acquisition thereof; (v) open market commercial paper of United States
corporations maturing not later than 270 days after the issuance thereof
and having a rating of at least P-2 by Moody's or A-2 by S&P, and (vi)
Investments, classified in accordance with GAAP as current assets, in money
market investment programs registered under the Investment Company Act of
1940, as amended, which are administered by reputable financial
institutions having capital of at least $100,000,000 and the portfolios of
which are limited to Investments of the character described in the
foregoing subdivisions (a)(i) through (a)(v);
(b) Investments in a Borrower or Subsidiaries of the Borrowers
existing on the date hereof, and other Investments existing on the date
hereof and described in Schedule VII;
------------
(c) Investments in any Restricted Subsidiary or in any Person which
simultaneously therewith becomes a Restricted Subsidiary;
(d) Investments consisting of stock, obligations, securities or other
property received by the Borrowers or a Restricted Subsidiary in settlement
of accounts receivable (created in the ordinary course of business) from
bankrupt obligors;
(e) Investments consisting of Guaranties by the Borrowers and their
Restricted Subsidiaries of the obligations of other Persons so long as at
the time of and immediately after giving effect to each such Investment,
the Borrowers are in compliance with Section 8.01(c) and Section 8.02;
(f) Investments by the Borrowers and their Restricted Subsidiaries in
property to be used in the ordinary course of their business as permitted
to be conducted pursuant to Section 8.09; and
(g) Investments in addition to those described in the foregoing
subdivisions (a) through (f) of this definition, provided that, the amount
--------
of all such additional Investments shall not exceed $10,000,000 in the
aggregate.
"Restricted Payment" shall mean any payment or distribution or the
------------------
incurrence of any liability to make any payment or distribution, in cash,
property or other assets (other than shares of common stock of a Borrower) upon
or in respect of any share of any class of capital stock of the Borrowers or any
warrants, rights or options evidencing a right to purchase or acquire any
securities of a Borrower, including, without limiting the generality of the
foregoing, payments or distributions as dividends and payments or distributions
for the purpose of purchasing, acquiring, retiring or redeeming any such shares
of stock (or any warrants, rights or options to purchase or acquire any such
securities) or the making of any other distribution in respect of any such
shares of stock (or any warrants, rights or options evidencing a right to
purchase or acquire any such securities).
<PAGE>
"Restricted Subsidiary" shall mean each Subsidiary existing on the date
---------------------
hereof which is not designated as an Unrestricted Subsidiary in Schedule VIII,
-------------
each other Subsidiary which is not hereafter designated by the Board of
Directors as an Unrestricted Subsidiary, and each Unrestricted Subsidiary which
is hereafter designated by the Board of Directors as a Restricted Subsidiary;
provided, however, that (a) any Restricted Subsidiary may be redesignated an
- -------- -------
Unrestricted Subsidiary as and to the extent provided in the definition of
"Unrestricted Subsidiary" set forth in this Section 1.01; (b) any Subsidiary
which shall be an Unrestricted Subsidiary at the commencement of any period of
30 consecutive months and which shall have been redesignated a Restricted
Subsidiary during such period may, following such redesignation, be further
redesignated an Unrestricted Subsidiary during such period but may not,
following such further redesignation, again be redesignated a Restricted
Subsidiary during such period; and (c) notwithstanding any provision hereof to
the contrary, no Person which hereafter becomes a Subsidiary may be designated a
Restricted Subsidiary and no Subsidiary which is designated an Unrestricted
Subsidiary may be redesignated a Restricted Subsidiary unless:
(i) immediately after giving effect to such designation or
redesignation, no Default or Event of Default shall have occurred and be
continuing,
(ii) in the case of any such redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, no property or assets of such
Subsidiary shall at the time of such redesignation be subject to any Liens
which would not have been permitted to be created by such Subsidiary
pursuant to Section 8.03, and
(iii) such Subsidiary shall have become, in compliance with
Section 8.18, a Guarantor under and within the meaning of the Guaranty
Agreement.
"RSI" shall mean, prior to the effective time of the Merger Transaction,
---
Rykoff-Sexton, Inc., a Delaware corporation incorporated in 1961, and from and
after the effective time of the Merger Transaction, the successor to such
corporation in the Merger Transaction whose corporate name shall be changed to
Rykoff-Sexton, Inc. in connection with consummation of the Merger Transaction.
"Revolving Committed Amount" shall have the meaning assigned to such term
--------------------------
in Section 2.01(a).
"Revolving Loans" shall have the meaning assigned to such term in Section
---------------
2.01(a).
"Revolving Period Termination Date" shall mean the date which is 364 days
---------------------------------
after the Closing Date, or if extended in accordance with the provisions of
Section 2.01(e) hereof, such later date not more than 364 days after the then
applicable Revolving Period Termination Date.
"S&P" shall have the meaning assigned to such term in the definition of
---
"Restricted Investment".
27
<PAGE>
"Sale Leaseback" shall mean any transaction or arrangement or series of
--------------
transactions or arrangements pursuant to which the Borrowers or any Restricted
Subsidiary shall become obligated as lessee under any lease of property, whether
real, personal or mixed (except for (i) leases in connection with Tax Reduction
Transactions, (ii) leases for a term of not more than three years, (iii) any
lease by a Restricted Subsidiary under which a Borrower or a Predominantly Owned
Restricted Subsidiary is lessor and (iv) leases of property executed prior to,
at the time of or within 180 days after the later to occur of the acquisition or
the commencement of commercial operation of such property) which property (a) is
now owned or hereafter acquired by a Borrower or a Restricted Subsidiary (or
which a Borrower or any Restricted Subsidiary intends to use for substantially
the same purpose as any other property now owned or hereafter acquired by a
Borrower or a Restricted Subsidiary) and (b) has been or is to be sold or
transferred to any other Person.
"Sara Lee" shall mean Sara Lee Corporation, a Maryland corporation.
--------
"Sara Lee Note" shall mean that certain promissory note of JPFDI, dated
-------------
August 19, 1989, issued in the original principal amount of $112,000,000 and
payable to PYA, which bears interest at the rate of 11% per annum, as such note
shall be in effect on the Closing Date.
"Sara Lee Offset Agreement" shall mean the Amended and Restated Note Offset
-------------------------
Agreement, dated as of July 3, 1989, by and between PYA and JPFDI, providing,
among other things, for the settlement of maturities of principal and accrued
interest under the Sara Lee Note, on the one hand, and under PYA's Note, on the
other hand, by offsetting the respective amounts due thereunder.
"Securities Act" shall mean the Securities Act of 1933, or any similar
--------------
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Subordinated Debt" shall mean any Debt of the Borrowers or any Restricted
-----------------
Subsidiary which is subordinated in right of payment to any other Debt of such
Person.
"Subordinated Intercompany Revolving Note" shall mean, with respect to any
----------------------------------------
Permitted Receivables Financing, any note issued by a Receivables Financing SPC
in favor of the Borrowers or any Restricted Subsidiary in connection therewith.
"Subsidiary" shall mean, with respect to any Person, any corporation,
----------
partnership or other entity of which more than 50% of the Voting Stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity is at the time, directly or indirectly, owned by, or the management is
otherwise controlled by, such Person and/or one or more of its other
Subsidiaries. Unless otherwise specified, any reference to a Subsidiary is
intended as a reference to a Subsidiary of a Borrower.
"Syndication Agent" means The Chase Manhattan Bank, as identified in the
-----------------
heading hereto.
"Tax Reduction Transaction" shall mean any transaction in which one or more
-------------------------
Borrowers and Restricted Subsidiaries convey real and/or personal property
assets to a governmental authority, or an agency or instrumentality thereof, in
exchange for nominal consideration and a reduction in the real and/or personal
property taxes that are payable by the applicable Borrowers and Restricted
Subsidiaries with respect to the assets so conveyed, provided that the
applicable Borrowers and Restricted Subsidiaries shall have the right to
reacquire such assets for nominal consideration, and "Tax Reduction
Transactions" shall mean all such transactions.
"Termination Event" shall mean (a) with respect to any Plan, the occurrence
-----------------
of a Reportable Event or an event described in Section 4062(e) of ERISA, or (b)
the withdrawal of any Borrower Group Member from a Multiple Employer Plan during
a plan year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan, or
(c) the distribution of a notice of intent to terminate a Plan or Multiemployer
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or (d) the
institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC
under Section 4042 of ERISA, or (e) any other event or condition which would
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan or Multiemployer Plan or (f)
the complete or partial withdrawal of any Borrower Group Member from a
Multiemployer Plan.
"Total Debt" shall mean, for the Borrowers and their Restricted
----------
Subsidiaries as of any date, the aggregate amount of all Debt of the Borrowers
and their Restricted Subsidiaries outstanding on such date (including, without
limitation, Debt evidenced by the Notes), determined on a consolidated basis.
"Total Debt Ratio" shall mean, as of any date, the number obtained by
----------------
dividing (a) Total Debt as of such date by (b) Operating Cash Flow for the
period ("Cash Flow Period") of four consecutive fiscal quarters ended on such
----------------
date or (if such date shall not be a Determination Date) most recently prior to
such date.
"Transferred Assets" shall have the meaning assigned to such term in the
------------------
definition of "Permitted Receivables Financing" set forth in this Section 1.01.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
--------------------------
which the present value of the accrued benefits under such Plan (based on those
assumptions used to fund such Plan) as of the close of its most recent plan year
exceeds the then current value of the assets of such Plan allocable to such
benefits.
"Unrestricted Subsidiary" shall mean each Subsidiary designated as an
-----------------------
Unrestricted Subsidiary in Schedule VIII and each other Subsidiary which is
-------------
hereafter designated by the Board of Directors as an Unrestricted Subsidiary;
provided, however, that (a) any Unrestricted
- -------- -------
28
<PAGE>
Subsidiary may be redesignated a Restricted Subsidiary as and to the extent
provided in the definition of "Restricted Subsidiary" set forth in this Section
1.01; (b) any Subsidiary which shall be a Restricted Subsidiary at the
commencement of any period of 30 consecutive months and which shall have been
redesignated an Unrestricted Subsidiary during such period may, following such
redesignation, be further redesignated a Restricted Subsidiary during such
period but may not, following such further redesignation, again be redesignated
an Unrestricted Subsidiary during such period; and (c) notwithstanding any
provision hereof to the contrary, no Subsidiary which is a Restricted Subsidiary
may be redesignated an Unrestricted Subsidiary unless
(i) immediately after giving effect to such redesignation, no Default
or Event of Default shall have occurred and be continuing, and
(ii) such Subsidiary does not own (directly or through its
Subsidiaries) any shares of stock or other securities of (or warrants,
rights or options to acquire stock or other securities of) any Restricted
Subsidiary or hold any Debt of the Borrowers or any Restricted Subsidiary
and, at the time of such redesignation, all Debt and shares of stock of
such Subsidiary which are owned by the Borrowers and their Restricted
Subsidiaries could be sold in compliance with Section 8.06 (in which case,
such redesignation shall be deemed a disposition of assets for purposes of
Section 8.07).
Any Subsidiary of any Person which shall at any time be an Unrestricted
Subsidiary shall itself be an Unrestricted Subsidiary for so long as such Person
shall remain an Unrestricted Subsidiary (and thereafter for so long as such
Subsidiary shall not have been redesignated as a Restricted Subsidiary in
compliance with the definition herein of that term).
"U.S. Bank" shall have the meaning assigned to such term in the definition
---------
of "Restricted Investment".
"Voting Stock" shall mean capital stock of a corporation the holders of
------------
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or persons performing similar functions) of
such corporation.
"Weighted Average Life to Maturity" shall mean, as applied to any Debt at
---------------------------------
any date, the number of years (or portions of years) obtained by dividing (a)
the then outstanding principal amount of such Debt into (b) the total of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the date on which such payment is to be made.
"Wholly Owned Restricted Subsidiary" shall mean any Restricted Subsidiary
----------------------------------
100% of all of the equity interests (except directors' qualifying shares) and
voting interests of which shall at the time be owned by a Borrower either
directly or through one or more other Wholly Owned Subsidiaries.
29
<PAGE>
SECTION 1.02. Accounting Terms, Etc.
----------------------
Except as specifically provided herein, all accounting terms used herein
which are not expressly defined in this Agreement have the meanings given to
them in accordance with GAAP and all computations made pursuant to this
Agreement shall be made in accordance with GAAP. All balance sheets and other
financial statements delivered pursuant to Section 6.01 shall be prepared in
accordance with GAAP. If any changes in accounting principles from those used
in the preparation of the most recent financial statements referred to in
Section 6.01 are hereafter required or permitted by the rules, regulations,
pronouncements and opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto) and
are adopted by the Borrowers with the agreement of their respective independent
certified public accountants and such changes result or could result (for any
present or future period) in a change in the method of calculation of any of the
financial covenants, standards or terms in or relating to Article VIII, the
parties hereto agree to enter into discussions with a view to amending such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating the financial condition of the Borrowers and their
Restricted Subsidiaries shall be the same after such changes as if such changes
had not been made, provided that, no change in GAAP that would affect or could
--------
affect (for any present or future period) the method of calculation of any of
said financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Borrowers and the Required Lenders, to so reflect such change in GAAP.
SECTION 1.03. Terms Generally.
---------------
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references herein to Articles, Sections
and Schedules shall be deemed references to Articles and Sections of, and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP.
SECTION 1.04. Directly or Indirectly.
----------------------
Where any provision of this Agreement refers to actions to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether the action in question is taken directly or indirectly by
such Person.
30
<PAGE>
ARTICLE II.
THE LOANS
SECTION 2.01. Revolving Loans.
---------------
(a) Revolving Commitment. Subject to and upon the terms and conditions and
--------------------
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, at any time and from time to time from the
Closing Date until the Revolving Period Termination Date, as the same may be
extended pursuant to Section 2.01(e) hereof, to make revolving credit loans
(each a "Revolving Loan" and, collectively, "Revolving Loans") to the Borrowers
-------------- ---------------
for the purposes set forth in Section 9.13; provided, however, (i) with regard
-------- -------
to each Lender individually, such Lender's pro rata share of outstanding
Revolving Loans shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount, (ii) with regard to the Lenders collectively, the
aggregate amount of Revolving Loans outstanding shall not exceed TWO HUNDRED
MILLION DOLLARS ($200,000,000), as such maximum amount may be reduced from time
to time as provided in Sections 2.03 and 3.02 (such amount, as so reduced from
time to time, the "Revolving Committed Amount"), and (iii) in addition to the
--------------------------
limitations set forth in the preceding subparagraphs (i) and (ii), in no event
shall the sum of Revolving Loans outstanding plus Competitive Loans outstanding
----
exceed the Revolving Committed Amount. Revolving Loans hereunder may consist of
Base Rate Loans or Eurodollar Loans (or a combination thereof) as either
Borrower may request, and may be repaid and reborrowed in accordance with the
provisions hereof. The aggregate outstanding principal amount of the Revolving
Loans as of the Revolving Period Termination Date, together with all accrued and
unpaid interest thereon, shall be due and payable in full on the Maturity Date
in accordance with the provisions of Section 2.01(c) below.
(b) Advances.
--------
(i) Notices. Whenever a Borrower desires a Revolving Loan advance
-------
hereunder, it shall give an appropriate Notice of Borrowing to the
Administrative Agent by hand delivery, telex or telecopy not later than
1:00 P.M. (Charlotte, North Carolina time) on the Business Day of the
requested advance in the case of Base Rate Loans, and on the third Business
Day prior to the requested advance in the case of Eurodollar Loans. Each
such Notice of Borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested advance (which
shall be a Business Day), (C) the aggregate principal amount of the
Revolving Loan requested, and (D) whether the Revolving Loan requested
shall consist of Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Periods with
respect thereto. If a Borrower shall fail to specify in any such Notice of
Borrowing (i) an applicable Interest Period in the case of a Eurodollar
Loan, then such notice shall be deemed to be a request for an Interest
Period of one month, or (ii) the type of Revolving Loan requested, then
such notice shall be deemed to be a request for a Base Rate Loan hereunder.
The Administrative Agent shall as promptly as practicable give
31
<PAGE>
each Lender notice of each requested Revolving Loan advance, of such
Lender's pro rata share thereof and of the other matters covered in the
applicable Notice of Borrowing.
(ii) Minimum Amounts. Each Revolving Loan shall be in an aggregate
---------------
principal amount that is not less than the lesser of $1,000,000 or the
remaining amount available to be borrowed with respect to the Revolving
Loans in accordance with the terms of Section 2.01(a). Any Revolving Loan
requested in excess of $1,000,000 shall be in an integral multiple of
$1,000,000, or the remaining amount available to be borrowed with respect
to the Revolving Loans.
(iii) Funding of Advances. Each Lender will make its pro rata
-------------------
share of each Revolving Loan available to the Administrative Agent by 3:00
P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing by deposit in dollars of immediately
available funds at the offices of the Administrative Agent in Charlotte,
North Carolina, or at such other address as the Administrative Agent may
designate in writing, and the Administrative Agent shall, by 4:00 P.M.
(Charlotte, North Carolina time) on the same day, credit the amount so
received to the general deposit account of the Borrowers with the
Administrative Agent. All Revolving Loans shall be made by the Lenders pro
rata on the basis of each Lender's Commitment Percentage. No Lender shall
be responsible for the failure or delay by any other Lender in its
obligation to make Revolving Loans hereunder; provided, however, that the
-------- -------
failure of any Lender to fulfill its Commitment hereunder shall not relieve
any other Lender of its Commitment hereunder. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any
Revolving Loan advance that such Lender does not intend to make available
to the Administrative Agent its portion of the Revolving Loan advance to be
made on such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of such
Revolving Loan advance, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion without any obligation to do so)
make available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrowers and
the Borrowers shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover from such Lender or the Borrowers, as the case may be, interest on
such corresponding amount in respect of each day from the date, with
respect to the Borrowers, such corresponding amount was made available by
the Administrative Agent to the Borrowers and, with respect to such Lender,
demand for payment from such Lender was made by the Administrative Agent,
to the date such corresponding amount is recovered by the Administrative
Agent, at a per annum rate equal to, with respect to the Borrowers, the
then applicable rate calculated in accordance with Section 2.01(d) and,
with respect to such Lender, the Federal Funds Effective Rate.
32
<PAGE>
(c) Repayment. The Borrowers hereby promise to pay to the Lenders the
---------
aggregate outstanding principal amount of all Revolving Loans, plus all accrued
and unpaid interest thereon, on the Maturity Date.
(d) Interest. (i) Interest Rates. Subject to the provisions of Section
-------- --------------
3.01, Revolving Loans shall bear interest as follows:
(A) Base Rate Loans. During such periods as Revolving Loans shall
---------------
consist of Base Rate Loans, at a per annum rate (computed on the basis of
the actual number of days elapsed over a year of 360 days for each
applicable day on which the Base Rate shall be determined on the basis of
the Federal Funds Effective Rate and over a year of 365/66 days for each
applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate) equal to the Base Rate in effect from time to time.
(B) Eurodollar Loans. During such periods as Revolving Loans shall
----------------
consist of Eurodollar Loans, at a per annum rate (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the sum
of the Eurodollar Rate for the Interest Period in effect for such
Eurodollar Loan plus the Applicable Margin in effect from time to time.
----
(ii) Payment of Interest. (A) The Borrowers hereby promise to pay to
-------------------
the Lenders on each applicable Interest Payment Date (or at such other
times as may be specified herein) accrued interest on the Revolving Loans.
(B) In addition to amounts payable with respect to accrued interest on
Eurodollar Loans pursuant to Section 2.01(d)(i)(B), the Borrowers hereby
promise to pay to each Lender which is subject to a reserve requirement in
respect of Eurocurrency Liabilities and which has notified the
Administrative Agent and the Borrowers as provided below, on each date on
which interest is payable on any Eurodollar Loan pursuant to such Section
2.01(d)(i)(B), additional interest on the Eurodollar Loans of such Lender
at a rate per annum equal at all times during each Interest Period of such
Eurodollar Loan to the remainder obtained by subtracting (1) the Eurodollar
Rate for the Interest Period for such Eurodollar Loan from (2) the rate
obtained by dividing the Eurodollar Rate for the Interest Period for such
Eurodollar Loan by a percentage equal to 1.00 minus the Eurodollar Rate
Reserve Percentage (expressed as a decimal) actually incurred by such
Lender for the Interest Period for such Eurodollar Loan as specified in a
certificate signed by a duly authorized officer of such Lender delivered to
the Administrative Agent and the Borrowers setting forth reasonable details
of such Lender's computation. Each determination by a Lender under this
Section 2.01(d)(ii)(B) shall be rebuttably presumptive evidence thereof
absent manifest error.
(e) Extension of Revolving Period Termination Date. The Borrowers may,
----------------------------------------------
within 60 days prior to the then applicable Revolving Period Termination Date,
by notice to the Administrative Agent, make written request of the Lenders to
extend the then applicable Revolving Period Termination Date for an additional
period of 364 days. The Administrative
33
<PAGE>
Agent will give prompt notice to each of the Lenders of its receipt of any such
request for extension of the Revolving Period Termination Date. Each Lender
shall make a determination not later than 30 days prior to the then applicable
Revolving Period Termination Date as to whether or not it will agree to extend
the Revolving Period Termination Date as requested; provided, however, that
-------- -------
failure by any Lender to make a timely response to the Borrowers' request for
extension of the Revolving Period Termination Date shall be deemed to constitute
a refusal by such Lender to extension of the Revolving Period Termination Date.
If, in response to a request for an extension of the Revolving Period
Termination Date, one or more Lenders shall refuse (or are deemed to have
refused) to agree to the requested extension, then the Revolving Period
Termination Date shall not be extended. The Revolving Period Termination Date
shall be extended only on receipt of written approval to any such request for
extension from all of the Lenders. Notwithstanding the fact that one or more
Lenders shall have refused (or are deemed to have refused) to agree to a
requested extension of the Revolving Period Termination Date, the Borrowers
shall be entitled to obtain Revolving Loans in accordance with the provisions of
this Section 2.01 until the Revolving Period Termination Date.
SECTION 2.02 Competitive Loan Subfacility.
----------------------------
(a) Competitive Loans. Subject to and upon the terms and conditions and
-----------------
relying upon the representations and warranties herein set forth, the Borrowers
may, from time to time until the Revolving Period Termination Date, request and
each Lender may, in its sole discretion, agree to make, Competitive Loans in
Dollars to the Borrowers; provided, however, that (i) the aggregate principal
-------- -------
amount of outstanding Competitive Loans shall not at any time exceed the lesser
of (a) an amount equal to fifty percent (50%) of the aggregate Revolving
Committed Amount, or, so long as the Company shall have attained and shall
maintain a rating for its senior unsecured non-credit enhanced long-term debt of
BBB- or better by S&P or Baa3 or better by Moody's, or in the absence of a
rating, a Total Debt Ratio of less than 3.5:1.0, an amount equal to one hundred
percent (100%) of the aggregate Revolving Committed Amount, or (b) the Revolving
Committed Amount (the "Competitive Loan Maximum Amount"), and (ii) the sum of
-------------------------------
Revolving Loans outstanding plus Competitive Loans outstanding shall not at any
time exceed the Revolving Committed Amount. Each Competitive Loan shall be not
less than $5,000,000 in the aggregate and integral multiples of $1,000,000 in
excess thereof (or the remaining portion of the Competitive Loan Maximum Amount,
if less).
(b) Competitive Bid Requests. A Borrower may solicit Competitive Bids by
------------------------
delivery of a Competitive Bid Request substantially in the form of Schedule VA-1
-------------
to the Administrative Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than one (1) nor more than four (4) Business Days prior to
the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Administrative
Agent shall, promptly following its receipt of a Competitive Bid Request under
this subsection (b), notify the Lenders of its receipt and the contents thereof
and invite the Lenders to submit Competitive Bids in response thereto. A form of
such notice is provided in Schedule VA-2. No more than two (2) Competitive Bid
-------------
Requests (e.g., a
34
<PAGE>
Borrower may request Competitive Bids for no more than two (2) different
Interest Periods at a time) shall be submitted at any one time and Competitive
Bid Requests may be made no more frequently than once every five (5) Business
Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
-------------------------
make one or more Competitive Bids to the applicable Borrower in response to a
Competitive Bid Request. Each Competitive Bid must be received by the
Administrative Agent not later than 10:00 A.M. (Charlotte, North Carolina time)
on the Business Day next succeeding the date of receipt by the Administrative
Agent of the related Competitive Bid Request. A Lender may offer to make all or
part of the requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. The Competitive Bid
shall specify (i) the particular Competitive Bid Request as to which the
Competitive Bid is submitted, (ii) the minimum (which shall be not less than
$1,000,000 and integral multiples of $1,000,000 in excess thereof) and maximum
principal amounts of the requested Competitive Loan or Loans as to which the
Lender is willing to make, and (iii) the applicable interest rate or rates and
Interest Period or Periods therefor. A form of such Competitive Bid is provided
in Schedule VA-3. A Competitive Bid submitted by a Lender in accordance with
-------------
the provisions hereof shall be irrevocable. The Administrative Agent shall
promptly notify the Borrowers by no later than 10:30 A.M. (Charlotte, North
Carolina time) on the Business Day succeeding the date of receipt by the
Administrative Agent of the related Competitive Bid Request of all Competitive
Bids made and the terms thereof. The Administrative Agent shall send a copy of
each of the Competitive Bids to the Borrowers for their records as soon as
practicable.
(d) Submission of Competitive Bids by Administrative Agent. If the
------------------------------------------------------
Administrative Agent, in its capacity as a Lender, elects to submit a
Competitive Bid in response to any Competitive Bid Request, it shall submit such
Competitive Bid directly to the Borrowers one-half of an hour earlier than the
latest time at which the other Lenders are required to submit their Competitive
Bids to the Administrative Agent in response to such Competitive Bid Request
pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The applicable Borrower may, in its
------------------------------
sole and absolute discretion, subject only to the provisions of this Section
2.02(e), accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, a Borrower shall give written notification (or telephonic
notice promptly confirmed in writing) substantially in the form of Schedule VA-4
-------------
of its acceptance of any or all such Competitive Bids to the Administrative
Agent by 11:00 A.M. (Charlotte, North Carolina time) on the date on which notice
of election to make a Competitive Bid is to be given to the Administrative Agent
by the Lenders; provided, however, (i) the failure by a Borrower to give timely
-------- -------
notice of its acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (ii) a Borrower may accept Competitive Bids only in ascending order of
rates, (iii) the aggregate amount of Competitive Bids accepted by a Borrower
shall not exceed the principal amount specified in the Competitive Bid Request,
(iv) a Borrower may accept a portion of a Competitive Bid in the event, and to
the extent, acceptance of the entire amount thereof would cause such Borrower to
exceed the principal amount specified in the Competitive Bid Request, subject
however to the minimum amounts provided herein (and provided that where two or
more Lenders submit such a Competitive Bid at the same Competitive Bid Rate,
then pro
36
<PAGE>
rata between or among such Lenders) and (v) no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $1,000,000 and integral multiples of $1,000,000 in excess thereof, except
that where a portion of a Competitive Bid is accepted in accordance with the
provisions of Section 2.02(e)(iv), then in a minimum principal amount of
$1,000,000 and integral multiples of $1,000,000 in excess thereof (but not in
any event less than the minimum amount specified in the Competitive Bid), and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to Section 2.02(e)(iv), the
amounts shall be rounded to integral multiples of $1,000,000 in a manner which
shall be in the discretion of the applicable Borrower. A notice of acceptance of
a Competitive Bid given by a Borrower in accordance with the provisions hereof
shall be irrevocable. The Administrative Agent shall, not later than 12:00 Noon
(Charlotte, North Carolina time) on the date of receipt by the Administrative
Agent of a notification from a Borrower of its acceptance and/or refusal of
Competitive Bids, notify each affected Lender of its receipt and the contents
thereof. Upon its receipt from the Administrative Agent of notification of a
Borrower's acceptance of its Competitive Bid in accordance with the terms of
this Section 2.02(e), each successful bidding Lender will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
----------------------------
Competitive Loan shall make its Competitive Loan borrowing available to the
Administrative Agent for the account of the Borrowers at the office of the
Administrative Agent specified herein by 1:30 P.M. (Charlotte, North Carolina
time) on the date specified in the Competitive Bid Request in Dollars and in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrowers by crediting the account of the
Borrowers on the books of such office with the aggregate of the amount made
available to the Administrative Agent by the applicable Competitive Loan Lenders
and in like funds as received by the Administrative Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature and
-----------------------------
be due and payable in full on the last day of the Interest Period applicable
thereto. Unless a Borrower shall give notice to the Administrative Agent
otherwise, the Borrowers shall be deemed to have requested a Revolving Loan
borrowing in the amount of the maturing Competitive Loan, the proceeds of which
will be used to repay such Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
-----------------------------
3.01, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
SECTION 2.03. Voluntary Termination.
---------------------
The Borrowers may from time to time permanently reduce or terminate the
aggregate Revolving Committed Amount in whole or in part (in minimum aggregate
amounts of the lesser of $1,000,000 or the full remaining amount of the
Revolving Committed Amount) upon three Business Days' prior irrevocable written
notice to the Administrative Agent; provided, however, no such termination or
-------- -------
reduction shall be made which would reduce the Revolving Committed Amount to an
amount less than the sum of Revolving Loans outstanding plus Competitive Loans
----
36
<PAGE>
outstanding. The commitments of the Lenders to make, extend or convert
Revolving Loans shall automatically terminate on the Revolving Period
Termination Date, after all Competitive Loans outstanding on the Revolving
Period Termination Date have been converted to Revolving Loans as more fully
contemplated by Section 2.02(g) above, provided that the Borrowers are in
--------
compliance with Sections 5.02(b) and (c) hereof. The Administrative Agent shall
promptly notify each of the Lenders of receipt by the Administrative Agent of
any notice from the Borrowers pursuant to this Section 2.03.
SECTION 2.04. Fees.
----
(a) Facility Fee. In consideration of the Commitments hereunder, the
------------
Borrowers agree to pay to the Administrative Agent for the account of the
Lenders a facility fee (the "Facility Fee"), prior to the Revolving Period
------------
Termination Date on the aggregate Revolving Committed Amount, and from the
Revolving Period Termination Date, on the aggregate Revolving Loans outstanding,
computed at a per annum rate equal to the Applicable Margin for each day during
the applicable period. The Facility Fee shall be payable quarterly in arrears
on the fifteenth (15th) day of each January, April, July and October and on the
Maturity Date for the immediately preceding fiscal quarter (or portion thereof).
(b) Agents' Fees. The Borrowers agree to pay to the Administrative Agent
------------
and the Co-Arrangers, for their own account, such structuring, syndication,
administrative and other fees (collectively, the "Agents' Fees") as provided in
------------
the Mandate Letter and the Administrative Agent's Fee Letter.
(c) Competitive Bid Request Fee. The Borrowers shall pay to the
---------------------------
Administrative Agent concurrently with each Competitive Bid Request such
administrative fee as provided in the Administrative Agent's Fee Letter (the
"Competitive Bid Request Fee").
- ----------------------------
ARTICLE III.
ADDITIONAL PROVISIONS REGARDING LOANS
SECTION 3.01. Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Base Rate).
SECTION 3.02. Prepayments.
-----------
(a) Voluntary.
---------
<PAGE>
(i) Revolving Loans and Competitive Loans. The Borrowers shall have the
-------------------------------------
right to prepay Revolving Loans and Competitive Loans in whole or in part from
time to time without premium or penalty; provided, however, that (A) each such
-------- -------
partial prepayment shall be a minimum principal amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and (B) no Eurodollar Loan or
Competitive Loan may be prepaid prior to the last day of the Interest Period
applicable thereto unless accompanied by payment of amounts specified in Section
3.07. Amounts prepaid on the Revolving Loans may be reborrowed in accordance
with the provisions hereof.
(ii) Application. Amounts prepaid hereunder shall be applied to the
-----------
Revolving Loans as the Borrowers may elect, provided that if the Borrowers shall
--------
fail to specify their application, prepayments shall be applied, first, to
Revolving Loans (and with respect to Base Rate Loans and Eurodollar Loans
comprising such Loans, first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities) and, second, to Competitive Loans in
direct order of Interest Period maturities.
(b) Mandatory.
---------
(i) Revolving Committed Amount Limitation. If at any time (A) the
sum of Revolving Loans outstanding plus Competitive Loans outstanding shall
----
exceed (B) the Revolving Committed Amount, then in any such instance the
Borrowers shall pay, prepay or otherwise reduce so much of the outstanding Loans
as shall be necessary to eliminate such excess.
(ii) Asset Dispositions. Unless otherwise agreed by the Required
------------------
Lenders, the aggregate Revolving Committed Amounts under the Five Year Credit
Agreement and under this Agreement shall be permanently reduced in an aggregate
amount equal to one hundred percent (100%) of the net cash proceeds received
from Asset Dispositions to the extent that (A) such net cash proceeds are not
reinvested in property or assets within two (2) years, in the case of the sale
or disposition of a replacement warehouse facility, and, in all other cases, 180
days of the date of sale, lease, disposition, casualty, theft or loss which gave
rise to the Asset Disposition, and (B) the aggregate amount of net cash proceeds
from all such Asset Dispositions not reinvested within the applicable period
shall exceed ten percent (10%) of Consolidated Net Tangible Assets on the most
recent Determination Date. In connection with a reduction in the Revolving
Committed Amount in accordance with this subsection (ii), the reduction of the
Commitments hereunder and under the Five Year Credit Agreement shall be applied,
first, to the Loans outstanding under this Agreement if and to the extent Loans
are outstanding hereunder beyond the Revolving Period Termination Date until the
aggregate amount of such Loans outstanding is reduced to zero, and, second, to
the Revolving Committed Amount under the Five Year Credit Agreement until the
Revolving Committed Amount thereunder is reduced to zero, and, third, to the
Revolving Committed Amount under this Agreement.
(iii) Payments and prepayments pursuant to this Section 3.02(b) shall
be applied, first, to Revolving Loans (and with respect to Base Rate Loans and
-----
Eurodollar Loans
38
<PAGE>
comprising such Loans, first to Base Rate Loans and then to Eurodollar Loans in
direct order of Interest Period maturities), until all Revolving Loans have been
repaid or prepaid in full; and second, to Competitive Loans in direct order of
------
Interest Period maturities.
(c) General. All prepayments of Loans shall be subject to Section 3.07 but
-------
otherwise without premium or penalty and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment and all
other amounts due and payable hereunder with respect to such Loans.
SECTION 3.03. Extension and Conversion.
------------------------
The Borrowers shall have the option, on any Business Day, to extend
existing Loans into a subsequent Interest Period or to convert Loans into Loans
of another type; provided, however, that (i) except as provided in Section 3.06,
-------- -------
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be in such
minimum amounts as provided in Section 2.01(b) and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrowers by
giving a Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Administrative Agent prior to 1:00 P.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan and on the third Business Day prior to, in
the case of the extension of a Eurodollar Loan as, or conversion of a Base Rate
Loan into, a Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans to be so
extended or converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall constitute a
representation and warranty by the Borrowers of the matters specified in
Sections 5.02(b), (c) and (d). In the event the Borrowers fail to request
extension or conversion of any Eurodollar Loan in accordance with this Section,
or any such conversion or extension is not permitted or required by this
Section, then such Loans shall be automatically converted into Base Rate Loans
at the end of their Interest Period. The Administrative Agent shall give each
Lender notice as promptly as practicable of any such proposed extension or
conversion affecting any Loan.
SECTION 3.04. Alternate Rate of Interest.
--------------------------
In the event, and on each occasion, that on the day two Business Days prior
to the commencement of any Interest Period for a Eurodollar Loan the
Administrative Agent shall have determined in good faith (i) that dollar
deposits in the principal amounts of such Eurodollar Loan are not generally
available in the London interbank market or (ii) that reasonable means do not
exist for ascertaining the Eurodollar Rate as practicable thereafter, give telex
or telecopy notice of such determination to the Borrowers and the Lenders. In
the event of any such determination under clause (i) or (ii) above, until the
Administrative Agent shall have advised the Borrowers
39
<PAGE>
and the Lenders that the circumstances giving rise to such notice no longer
exist, (A) any request by the Borrowers for a Eurodollar Loan pursuant to
Section 2.01(b) shall be deemed to be a request for a Base Rate Loan and (B) any
request by the Borrowers for conversion into or extension of a Eurodollar Loan
pursuant to Section 3.03 shall be deemed to be a request for conversion into or
extension of a Base Rate Loan. Each determination by the Administrative Agent
hereunder shall be in good faith and shall be rebuttably presumptive evidence
thereof absent manifest error.
SECTION 3.05. Reserve Requirements; Change in Circumstances.
---------------------------------------------
(a) Notwithstanding any other provision herein, if after the Relevant Date
(as defined in Section 3.05(c)) any change in applicable law or regulation or in
the interpretation or administration thereof by any Governmental Body charged
with the interpretation or administration thereof (whether or not having the
force of law) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by such Lender, or shall impose on such Lender or
the London interbank market any other condition affecting this Agreement, such
Lender's Commitment, any Loan made by such Lender or any Participation Interest
held by such Lender (other than the imposition of or change in the rate of any
Taxes as defined in Section 4.04 or the imposition of or change in the rate of
any item specifically excluded from such definition of Taxes pursuant to the
terms of such Section), and the result of any of the foregoing shall be to
increase the cost to such Lender of making, issuing or maintaining such Loan or
Participation Interest, as the case may be, or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrowers will pay to such Lender in accordance with Section 3.05(d) upon demand
such additional amount or amounts as will compensate such Lender for any such
additional costs incurred or reduction suffered after delivery to the Borrowers
of a certificate relating to such additional costs or such reduction as
contemplated by such Section 3.05(d).
(b) If any Lender shall have determined that after the Relevant Date the
applicability of any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards," or the adoption after the date
hereof of any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Body, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or any Lender's
holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement, such Lender's Commitment or any Loan
made by such Lender pursuant hereto or any Participation Interest held by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such adoption, change or
40
<PAGE>
compliance (taking into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time after delivery to
the Borrowers of a certificate relating to such additional cost or costs as
contemplated by Section 3.05(d), the Borrowers shall pay to such Lender in
accordance with such Section 3.05(d) such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) For purposes of this Section 3.05, "Relevant Date" shall mean, in the
case of a Lender that is a Lender on the date hereof and, in the case of a
Lender that becomes a Lender after the date hereof as provided in Section
12.04(b), the date on which such Lender becomes a Lender under such Section.
(d) A certificate signed by a duly authorized officer of a Lender setting
forth such amount or amounts (including computation of such amount or amounts)
as shall be necessary to compensate such Lender or its holding company as
specified in Section 3.05(a) or (b), as the case may be, shall be delivered to
the Borrowers and the Administrative Agent, and the Borrowers shall pay to such
Lender, within 30 Business Days after receipt by the Borrowers of such
certificate delivered by the Lender, the amount shown as due on any such
certificate.
(e) The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed. Each determination by a Lender under this
Section 3.05 shall be in good faith and shall be rebuttably presumptive evidence
thereof absent manifest error.
SECTION 3.06. Change in Legality.
------------------
(a) Notwithstanding any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any Governmental Body charged
with the administration or interpretation thereof shall make it unlawful for any
Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
30 days' (or such shorter period as shall be required in order to comply with
applicable law) written notice to the Borrowers and to the Administrative Agent,
such Lender may:
(i) declare that Eurodollar Loans, and conversions into or
extensions of Eurodollar Loans, will not thereafter be made by such Lender
hereunder, whereupon any request by a Borrower for, or for conversion into
or extension of, a Eurodollar Loan shall, as to such Lender only, be deemed
a request for, or for conversion into or extension of, a Base Rate Loan,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to Base Rate Loans, in which event all such Eurodollar Loans
shall be automatically converted to Base Rate Loans as of the effective
date of such notice as provided in paragraph (b) below.
41
<PAGE>
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 3.06, a notice to the Borrowers by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrowers. Each determination by a Lender under this Section 3.06 shall be in
good faith and shall be rebuttably presumptive evidence thereof absent manifest
error.
SECTION 3.07. Indemnity.
---------
The Borrowers shall indemnify each Lender against any loss, cost or expense
which such Lender may sustain or incur as a consequence of (a) any failure by
the Borrowers to borrow or to refinance, convert or extend any Loan hereunder
after notice of such borrowing, refinancing, conversion or extension has been
given pursuant to Section 2.01 or 3.03, or (b) any payment, prepayment or
conversion by the Borrowers of a Eurodollar Loan or a Competitive Loan required
by any other provision of this Agreement or otherwise made or deemed made on a
date other than the last day of the Interest Period, if any, applicable thereto.
In the case of any such event, the Borrowers shall, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to such Lender any
amounts required to compensate such Lender for any reasonable loss, cost or
expense which such Lender may incur as a result of such action or inaction by
the Borrowers, including without limitation any reasonable loss, cost or expense
incurred by reason, of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Loan or proposed Loan.
Each request for payment hereunder shall be accompanied by a certificate of the
Lender requesting payment with a calculation in reasonable detail of the loss,
cost or expense for which recovery is sought. Each determination by a Lender
under this Section 3.07 shall be in good faith and shall be rebuttably
presumptive evidence thereof absent manifest error.
SECTION 3.08. Mandatory Assignment; Commitment Termination.
--------------------------------------------
In the event that any Lender delivers to the Administrative Agent or the
Borrowers, as appropriate, a certificate in accordance with Section 3.05(d) or a
notice in accordance with Section 3.06 or in the event that any Lender fails to
fulfill its Commitment to make any Revolving Loan, then, provided that no
Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Administrative Agent under Section 12.04(b)), and in its sole
discretion (a) require such Lender to transfer and assign in whole or in part,
without recourse (in accordance with and subject to the terms and conditions of
Section 12.04(b)), all or part of its interests, rights and obligations under
this Agreement to an Eligible Assignee which shall assume such assigned
obligations (which Eligible Assignee may be another Lender, if a Lender accepts
43
<PAGE>
such assignment); provided that (i) such assignment shall not relieve the
Borrowers from their obligations to pay such additional amounts that may be due
in accordance with Section 3.05(a) or (b), (ii) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Body and (iii) the Borrowers or such Eligible Assignee shall have
paid to the assigning Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the Loans made by it hereunder
and all accrued Fees and other amounts owed to it hereunder or (b) terminate the
Commitment of such Lender and prepay all outstanding Loans of such Lender;
provided that (i) such termination of the Commitment of such Lender shall not
relieve the Borrowers from their obligations to pay such additional amounts that
may be due in accordance with Section 3.05(a) or (b), (ii) such termination of
the Commitment of such Lender and prepayment of Loans does not conflict with any
law, rule or regulation or order of any court or other Governmental Body and
(iii) the Borrowers shall have paid to such Lender in immediately available
funds the principal of and interest accrued to the date of such payment on the
Loans made by it hereunder and all other amounts owed to it hereunder.
SECTION 3.09. Concerning Joint and Several Liability of the Borrowers.
-------------------------------------------------------
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by the
Lenders under this Agreement, for the mutual benefit, directly and indirectly,
of each of the Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of each of
them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrower with respect to the payment and
performance of all of the obligations of the Borrowers under the Credit
Documents (the "Credit Obligations"), it being the intention of the parties
------------------
hereto that all such Credit Obligations shall be the joint and several
obligations of each of the Borrowers without preferences or distinction among
them.
(c) If and to the extent that either Borrower shall fail to make any
payment with respect to any of the Credit Obligations as and when due or to
perform any of the Credit Obligations in accordance with the terms thereof, then
in each such event, the other Borrower will make such payment with respect to,
or perform, such Credit Obligations.
(d) The obligations of each Borrower under the provisions of this Section
3.09 constitute full recourse obligations of both of the Borrowers, enforceable
against both of the Borrowers to the full extent of their properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or
any other circumstances whatsoever.
(e) The provisions of this Section 3.09 are made for the benefit of the
Administrative Agent and the Lenders and their respective successors and
assigns, and may be enforced by any such Person from time to time against either
Borrower as often as occasion therefor may arise and without requirement on the
part of any Lender first to marshal any of its claims or to exercise any of its
rights against the other Borrower or to exhaust any remedies available to it
against the
44
<PAGE>
other Borrower or to resort to any other source or means of obtaining payment of
any of the Credit Obligations or to elect any other remedy. The provisions of
this Section 3.09 shall remain in effect until all the Credit Obligations shall
have been paid in full or otherwise fully satisfied. If at any time, any
payment, or any part thereof, made in respect of any of the Credit Obligations,
is rescinded or must otherwise be restored or returned by any Lender upon the
insolvency, bankruptcy or reorganization of either Borrower, or otherwise, the
provisions of this Section 3.09 will forthwith be reinstated in effect, as
though such payment had not been made.
(f) Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the joint obligations of a
Borrower shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of each
Borrower hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the federal Bankruptcy Code).
(g) The Borrowers hereby agree, as among themselves, that if a Borrower
shall become an Excess Funding Borrower (as defined below), the other Borrower
shall, on demand of such Excess Funding Borrower (but subject to the next
sentence hereof and to subsection (B) below), pay to such Excess Funding
Borrower an amount equal to such Borrower's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Borrower) of such Excess Payment
(as defined below). The payment obligation of a Borrower to any Excess Funding
Borrower under this Section 3.09(g) shall be subordinate and junior in right of
payment to the prior payment in full of the Credit Obligations of such Borrower
under the other provisions of this Agreement, and such Excess Funding Borrower
shall not exercise any right or remedy with respect to such excess until payment
and satisfaction in full of all of such Credit Obligations. For purposes
hereof, (i) "Excess Funding Borrower" shall mean, in respect of any Credit
Obligations arising under the other provisions of this Agreement (the "Joint
Obligations"), a Borrower that has paid an amount in excess of its Pro Rata
Share of the Joint Obligations; (ii) "Excess Payment" shall mean, in respect of
any Joint Obligations, the amount paid by an Excess Funding Borrower in excess
of its Pro Rata Share of such Joint Obligations; and (iii) "Pro Rata Share", for
the purposes of this Section 3.09(g), shall mean, for any Borrower, the ratio
(expressed as a percentage) of (A) the amount by which the aggregate present
fair saleable value of all of its assets and properties exceeds the amount of
all debts and liabilities of such Borrower (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such
Borrower hereunder) to (B) the amount by which the aggregate present fair
saleable value of all assets and other properties of such Borrower and the other
Borrower exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Borrower and the other Borrower hereunder) of such
Borrower and the other Borrower, all as of the Closing Date (if any Borrower
becomes a party hereto subsequent to the Closing Date, then for the purposes of
this Section 3.09(g) such subsequent Borrower shall be deemed to have been a
Borrower as of the Closing Date and the information pertaining to, and only
pertaining to, such Borrower as of the date such Borrower became a Borrower
shall be deemed true as of the Closing Date).
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ARTICLE IV.
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S. TAXES; EVIDENCE OF LOANS
SECTION 4.01. Payments and Computations.
-------------------------
Except as otherwise specifically provided herein, all payments hereunder shall
be made to the Administrative Agent in dollars in immediately available funds,
without offset, deduction or withholding of any kind, at its offices at
NationsBank Corporate Center, Charlotte, North Carolina not later than 2:00 P.M.
(Charlotte, North Carolina time) on the date when due. The Administrative Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrowers
maintained with the Administrative Agent (with notice to the Borrowers). A
Borrower shall, at the time it makes any payment under this Agreement, specify
to the Administrative Agent the Loans, Fees or other amounts payable by the
Borrowers hereunder to which such payment is to be applied (and in the event
that it fails so to specify, or if such application would be inconsistent with
the terms hereof, the Administrative Agent shall distribute such payment to the
Lenders in such manner as the Administrative Agent may determine to be
appropriate in respect of obligations owing by the Borrowers hereunder, subject
to the terms of Sections 3.02 and 4.02). The Administrative Agent will
thereafter cause to be distributed promptly on the same day like funds relating
to the payment of principal or interest or Fees ratably to the Lenders entitled
to receive such payments in accordance with the terms of this Agreement.
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and fees shall
be made on the basis of actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of advance, but exclude the date
of payment.
SECTION 4.02. Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein, each Revolving Loan, each
payment or prepayment of principal of any Revolving Loan, each payment of
interest on the Revolving Loans, each payment of Fees (other than those which
are not shared), each reduction of the Revolving Committed Amount and each
conversion or extension of any Revolving Loan, shall be allocated pro rata among
the Lenders in accordance with their respective Commitment Percentages (or if
the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Revolving Loans and Participation
Interests of the Lenders).
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SECTION 4.03. Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan or other obligation owing to such Lender
under this Agreement through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise in excess of its pro rata share as provided for in
this Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Agreement. The Lenders further agree among themselves that
if payment to a Lender obtained by such Lender through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by repurchase of a participation theretofore
sold, return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Lender whose payment shall have
been rescinded or otherwise restored. The Borrowers agree that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan or other obligation in the amount of such participation.
Except as otherwise expressly provided in this Agreement, if any Lender or the
Administrative Agent shall fail to remit to the Administrative Agent or any
other Lender an amount payable by such Lender or the Administrative Agent to the
Administrative Agent or such other Lender pursuant to this Agreement on the date
when such amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the date such
amount is paid to the Administrative Agent or such other Lender at a rate per
annum equal to the Federal Funds Effective Rate.
SECTION 4.04. Net Payments.
------------
All payments made by the Borrowers hereunder will be made without set-off
or counterclaim. All payments by the Borrowers hereunder shall be made free and
clear of and without deduction or withholding for any Taxes (as hereinafter
defined), except to the extent that such deduction or withholding is required by
law. For purposes of this Section 4.04, "Taxes" shall mean any present or future
license, registration or other fees, taxes or other amounts for or on account of
levies, imposts, duties, deductions, withholdings or other charges of whatsoever
nature, imposed, levied, collected, withheld or assessed by any governmental or
taxing authority, excluding income and franchise taxes imposed on a Lender (i)
by a jurisdiction under which such Lender is organized or operating in
connection with this Agreement or any political subdivision thereof or (ii) as a
result of a present or former connection between the jurisdiction of the
governmental or taxing authority imposing such taxes and the Lender. If the
Borrowers shall be required to withhold or deduct Taxes (other than U.S. Taxes
as defined in Section 4.05) from any sum payable hereunder, (i) the sum payable
shall be increased as may be necessary so that the amount received is equal to
the sum which would have been received had no withholdings or deductions been
made, (ii) the Borrowers shall make such necessary withholdings or deductions
and (iii) the Borrowers shall pay the full amount withheld or deducted to the
relevant authority according to applicable law so that the Lenders shall not be
required to make any deduction or
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payment of Taxes. Notwithstanding anything contained in this Section, the
Borrowers shall not be required to make payment hereunder to the extent such
amounts relate to any period prior to the date that is 90 days prior to the date
that the Borrowers first receive notice from such Lender requesting payment of
any such additional amounts. Each Lender making a request for compensation under
this Section shall use reasonable efforts to change its Eurodollar lending
office with a view to mitigate amounts payable hereunder so long as any such
change is not unduly burdensome to the Lender.
SECTION 4.05. U.S. Taxes.
----------
(a) The Borrowers agree to pay to each Lender that is not a U.S. Person (a
"Foreign Lender") such additional amounts as are necessary in order that the net
--------------
payment of any amount due to such Foreign Lender hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such Foreign Lender), will
not be less than the amount stated herein to be then due and payable, provided
--------
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Foreign Lender hereunder unless
such Foreign Lender (A) on the date hereof (or on the date it becomes a
Lender as provided in Section 12.04(b)) and on the date of any change in
the applicable lending office of such Foreign Lender, is entitled to submit
either a Form 1001 (relating to such Foreign Lender and entitling it to a
complete exemption from withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224 (relating to all interest
to be received by such Foreign Lender hereunder in respect of the Loans)
and (B) timely delivers such Form in duplicate to the Borrowers, with a
copy to the Administrative Agent at such time;
(ii) to any payment to any Foreign Lender hereunder unless
such Foreign Lender delivers to the Borrowers an updated copy of a Form
1001 and a Form 4224 on or before the date of expiration or obsolescence
of, or the date of the occurrence of any event requiring a change in, the
most recent Form 1001 and/or Form 4224 previously delivered to the
Borrowers by such Foreign Lender pursuant to this Section 4.05 (and such
extensions or renewals of such Forms as may reasonably be requested by the
Borrowers from time to time), unless an event has occurred prior to the
date on which delivery of any such updated Form 1001 and/or Form 4224 would
otherwise be required which has rendered such Form or Forms inapplicable to
any payment to a Foreign Lender hereunder subsequent to such date; or
(iii) to any U.S. Tax imposed solely by reason of the failure
by such Foreign Lender to comply with applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity, or connections with the United States of
America of such Foreign Lender if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes; and
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provided further that the Borrowers shall not be required pursuant to this
- -------- -------
Section 4.05 to pay additional amounts to any Foreign Lender to the extent that
such additional amounts relate to any payment to such Foreign Lender required
hereunder prior to the date that is 90 days after the date that the Borrowers
first receive notice from such Foreign Lender requesting payment of any such
additional amounts.
For the purposes of this Section 4.05(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates), (y) "U.S. Person" shall mean a citizen, national or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of
America, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income and (z) "U.S. Taxes" shall mean any
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein.
(b) Within thirty (30) days after paying any amount to the Administrative
Agent or any Foreign Lender from which it is required by law to make any
deduction or withholding, and within thirty (30) days after it is required by
law to remit such deduction or withholding to any relevant taxing or other
authority, the Borrowers shall deliver to the Administrative Agent for delivery
to such Foreign Lender evidence satisfactory to such Foreign Lender of such
deduction, withholding or payment (as the case may be).
(c) In the event that any Lender requests payment by the Borrowers of any
additional amounts pursuant to Section 4.04 or this Section 4.05(a), then,
provided that no Default or Event of Default has occurred and is continuing at
such time, the Borrowers may, at their own expense (such expense to include any
transfer fee payable to the Administrative Agent under Section 12.04(b)), and in
their sole discretion (a) require such Lender to transfer and assign in whole or
in part, without recourse (in accordance with and subject to the terms and
conditions of Section 12.04(b)), all or part of its interests, rights and
obligations under this Agreement to an Eligible Assignee which shall assume such
assigned obligations (which Eligible Assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) such assignment shall not relieve
the Borrowers from their obligations to pay such additional amounts that may be
due in accordance with Section 4.04 or this Section 4.05(a), (ii) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Body and (iii) the Borrowers or such Eligible
Assignee shall have paid to the assigning Lender in immediately available funds
the principal of and interest accrued to the date of such payment on the Loans
made by it hereunder and all accrued Fees and other amounts owed to it hereunder
or (b) terminate the Commitment of such Lender and prepay all outstanding Loans
of such Lender; provided that (i) such termination of the Commitment of such
Lender shall not relieve the Borrowers from their obligations to pay such
additional amounts that may be due in accordance
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<PAGE>
with Section 4.04 or this Section 4.05(a), (ii) such termination of the
Commitment of such Lender and prepayment of Loans does not conflict with any
law, rule or regulation or order of any court or other Governmental Body and
(iii) the Borrowers shall have paid to such Lender in immediately available
funds the principal of and interest accrued to the date of such payment on the
Loans made by it hereunder and all other amounts owed to it hereunder.
SECTION 4.06. Evidence of Loans.
-----------------
(a) Each Lender shall maintain an account or accounts evidencing each Loan
made by such Lender to the Borrowers from time to time. Each Lender will make
reasonable efforts to maintain the accuracy of its account or accounts and to
promptly update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain a register and a subaccount
for each Lender, in which register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each Loan hereunder, (ii)
the amount of any principal or interest due and payable or to become due and
payable to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from or for the account of the Borrowers and each
Lender's share thereof. The Administrative Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding sentence
and to promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, register and subaccounts maintained
pursuant to Sections 4.06(a) and (b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain any such account,
such register or such subaccount, as applicable, or any error therein, shall not
in any manner affect the obligations of the Borrowers hereunder.
ARTICLE V.
CONDITIONS PRECEDENT
SECTION 5.01. Conditions to Closing Date.
--------------------------
The effectiveness of this Agreement and the commitments contained herein
are subject to satisfaction of the following conditions, in addition to
satisfaction of the conditions set forth in Section 5.02:
(a) Receipt by the Administrative Agent of the following financial
information:
(i) Annual audited consolidated financial statements for
each of the Borrowers and their Subsidiaries for fiscal year ended June 28,
1997, including a
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consolidated balance sheet, and related consolidated statements of
operations, changes in stockholders' equity and cash flows, setting forth
in each case such information in comparative form for the previous fiscal
year and accompanied by an opinion of independent certified public
accountants of recognized national standing.
(ii) Company-prepared quarterly consolidated financial
statements for each of the Borrowers and their Subsidiaries for the fiscal
quarter immediately preceding the Closing Date for which such information
is available, including a consolidated balance sheet, and related
consolidated statements of operations, changes in stockholders' equity and
cash flows, setting forth in each case such information in comparative form
for such periods during the previous fiscal year.
(iii) Consolidated pro forma financial statements for each of
the Borrowers and their Subsidiaries as set forth in the Form S-4 for
fiscal years ending June 30, 1996 and June 30, 1997.
(b) Receipt by the Administrative Agent of (i) the definitive Merger
Agreement, as amended and modified with all exhibits and schedules and
related agreements (including any share purchase, exchange or other
agreements) relating to the merger(s) between JP Foodservice, Inc. (or any
of its Subsidiaries, whether existing or newly formed) and Rykoff-Sexton,
Inc., and (ii) evidence of consummation of the Merger Transaction.
(c) Receipt by the Administrative Agent of the definitive corporate
capital and ownership structure after giving effect to the merger(s)
contemplated pursuant to the foregoing Merger Agreement (including
organizational documents, bylaws, shareholder agreements).
(d) Evidence of receipt by the Borrowers of all necessary approvals,
consents and authorizations (including the passage of all waiting periods)
from governmental authorities, shareholders, existing lenders and
noteholders, and other persons with respect to the Merger Transaction and
the transactions contemplated hereunder.
(e) No circumstances, events or conditions shall have occurred since
June 30, 1997, in the business, assets, operations, condition (financial or
otherwise) or prospects of the Borrowers and their respective Subsidiaries
or in the facts and information regarding such entities as represented to
date which has had or could reasonably be expected to have a Material
Adverse Effect.
(f) The absence of any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
authority that purports to affect the Borrowers or their respective
Subsidiaries or any transaction contemplated hereby or on the ability of
the Borrowers or their respective Subsidiaries to perform their obligations
under the Credit Documents.
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(g) Evidence of pro forma compliance by the Borrowers and their
respective Subsidiaries with their existing financial obligations
(including compliance with financial covenants thereunder) after giving
effect to the initial advances hereunder and the mergers contemplated
pursuant to the Merger Agreement.
(h) Receipt by the Administrative Agent of multiple counterparts of
this Agreement and the Guaranty Agreement executed and delivered by a duly
authorized officer of each of the parties thereto.
(i) Receipt by the Administrative Agent of certified copies of
articles of incorporation, bylaws, resolutions, incumbency certificates and
the like from the Company, each of the Borrowers and each of the
Guarantors.
(j) Receipt by the Administrative Agent of multiple counterparts of
legal opinions of counsel to the Company, the Borrowers and the Guarantors
dated as of the Closing Date in form and substance reasonably satisfactory
to the Administrative Agent and the Lenders.
(k) Payment to the Administrative Agent, the other Agents and the
Lenders all fees due and payable in connection with this Agreement.
SECTION 5.02. Each Extension of Credit.
------------------------
The obligations of each Lender to make any Extension of Credit or to
convert or extend any Revolving Loan are subject to satisfaction of the
following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.01:
(a) The Administrative Agent shall have received an appropriate
Notice of Borrowing or Notice of Extension/Conversion;
(b) The representations and warranties set forth in Article IX shall
be true and correct in all material respects on and as of such date (except
to the extent that any such representations and warranties expressly relate
to an earlier date);
(c) No Default or Event of Default shall exist and be continuing
either prior to or immediately after giving effect thereto; and
(d) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof), (i)(A) the sum of Revolving Loans
outstanding plus Competitive Loans outstanding, shall not exceed (B) the
----
Revolving Committed Amount; and (ii) the Competitive Loans outstanding
shall not exceed the Competitive Loan Maximum Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Competitive Bid pursuant to Section 2.02(b) shall
constitute a representation and
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warranty by the Borrowers of the correctness of the matters specified in
Sections 5.02(b), (c) and (d) above.
ARTICLE VI.
FINANCIAL STATEMENTS; INFORMATION
SECTION 6.01. Reporting Requirements.
----------------------
The Borrowers hereby covenant and agree that, so long as this Agreement is
in effect or any amounts payable hereunder or any of the other Credit Documents
shall remain outstanding, and until all of the Commitments shall have been
terminated, the Borrowers will furnish, or cause to be furnished, to the
Administrative Agent and (except as otherwise provided) each Lender:
(a) Quarterly Statements. As soon as available and in any event
--------------------
within 50 days after the end of each of the first three quarterly fiscal
periods in each fiscal year of the Company, (i) an unaudited consolidated
balance sheet of the Company (and upon request of the Lenders unaudited
statements for the Borrowers and their Restricted Subsidiaries) as at the
end of such quarterly fiscal period and the related unaudited consolidated
statements of operations and cash flows of the Company (and upon request of
the Lenders unaudited statements for the Borrowers and their Restricted
Subsidiaries) for such quarterly fiscal period and (in the case of the
second and third such quarterly fiscal period in each fiscal year) for the
portion of the fiscal year ended with the last day of such quarterly fiscal
period, setting forth in each case in comparative form the respective
figures for the corresponding period of the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and certified by the
principal financial officer of the Company (or the Borrowers) as fairly
presenting, in all material respects, the financial position of the
companies being reported on and the results of their operations and cash
flows except as to the absence of footnotes and subject to changes
resulting from normal year-end audit adjustments and (ii) comparable
consolidated financial statements of the Company and its Subsidiaries as at
the end of and for such quarterly period, prepared in the same manner as
such consolidated financial statements of the Company and its Subsidiaries
and similarly certified by the principal financial officer of the Company;
provided that delivery within the time period specified above (or, if
--------
later, within five days of timely filing with the Commission) of copies of
the Company's Quarterly Report on Form 10-Q for any quarterly fiscal period
prepared in compliance with the requirements therefor and filed with the
Commission shall be deemed to satisfy the requirements of subdivision (i)
and (ii) of this Section 6.01(a) for such period so long as such Quarterly
Report contains the applicable information required by this Section
6.01(a);
(b) Annual Statements. As soon as available and in any event within
-----------------
95 days after the end of each fiscal year of the Company, (i) a
consolidated balance sheet of
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the Company (and upon request of the Lenders unaudited statements for the
Borrowers and their Restricted Subsidiaries) as of the end of such fiscal
year and the related consolidated statements of operations, changes in
stockholders' equity and cash flows of the Company (and upon request of the
Lenders unaudited statements for the Borrowers and their Restricted
Subsidiaries) for such fiscal year, setting forth in each case in
comparative form the respective figures as of the end of and for the
previous fiscal year, all in reasonable detail and accompanied by an
opinion thereon of independent certified public accountants of recognized
national standing selected by the Company and reasonably satisfactory to
the Required Lenders, which opinion shall not be made in reliance upon the
opinion of any other accountant (except for opinions of other independent
certified public accountants in respect of financial statements of a Person
which shall have become a Subsidiary or the assets of which shall have been
acquired by the Company or a Subsidiary during such fiscal year), shall not
contain any qualification as to scope, and shall state that such financial
statements present fairly, in all material respects, the financial position
of the companies being reported on and their results of operations and
their cash flows in conformity with GAAP, that the audit of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards and that such
accountants believe such audit provides a reasonable basis for such opinion
and (ii) comparable consolidated financial statements of the Company and
its Subsidiaries as at the end of and for such fiscal year, prepared in the
same manner as such consolidated financial statements of the Company and
accompanied by an opinion thereon of independent certified public
accountants meeting the requirements therefor, set forth in the foregoing
subdivision (b)(i); provided that, the delivery within the time period
--------
specified above (or, if later, within five days of timely filing with the
Commission) of the Company's Annual Report on Form 10-K (together with the
Company's annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) for any fiscal year prepared in compliance
with the requirements therefor and filed with the Commission shall be
deemed to satisfy the requirements of subdivision (i) and (ii) of this
Section 6.01(b) for such year so long as such Annual Report contains the
applicable opinions and other information required by this Section 6.01(b);
(c) Officers' Certificates. Concurrently with each delivery of
----------------------
financial statements of the Company and its Subsidiaries (and upon request
of the Borrowers and their Restricted Subsidiaries) pursuant to Section
6.01 (a) or (b), an Officers' Certificate, addressed to the Administrative
Agent and the Lenders:
(i) stating that the signatories thereto have reviewed the
terms of this Agreement and have made, or caused to be made under
their supervision, a review in reasonable detail of the transactions
and conditions of the Company and its Subsidiaries, or the Borrowers
and their Restricted Subsidiaries, as appropriate, during the
accounting period covered by such financial statements, and that such
review has not disclosed the existence during or at the end of such
accounting period, and that such signatories do not have knowledge of
the existence as at the date of such Officers' Certificate, of any
condition or event which constitutes a
54
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Default or an Event of Default, or, if to their knowledge any such
condition or event existed or exists, specifying the nature and period
of existence thereof and what action has been taken or is taking or
proposed to be taken with respect thereto;
(ii) setting forth (A) as of the date of the consolidated
balance sheet included in such financial statements, the Fixed Charge
Coverage Ratio and the Total Debt Ratio, and the respective amounts of
Total Debt, Consolidated Net Worth, the Net Worth Minimum,
Consolidated Net Tangible Assets, Priority Debt, Attributable Debt,
and the aggregate principal amount outstanding of all Debt of
Restricted Subsidiaries, (B) the respective amounts of Net Income
Available for Fixed Charges, Consolidated Fixed Charges and Operating
Cash Flow for the period of four consecutive fiscal quarters of the
Borrowers ended on such date, and (C) the amount available as at the
conclusion of the accounting period ended on such date for the making
of Restricted Payments and Restricted Investments in compliance with
Section 8.05 and the aggregate unliquidated amount as of such date of
all Investments of the Borrowers and their Restricted Subsidiaries of
the character described in subdivision (g) of the definition of
"Restricted Investments" set forth in Section 1.01; and
(iii) setting forth facts or computations in reasonable detail
demonstrating compliance during and at the end of such accounting
period with the covenants and restrictions contained in Section 8.01,
Section 8.02, Section 8.03, Section 8.04, Section 8.05 and Section
8.07(f);
(d) Accountant's Certificates. Concurrently with each delivery of
-------------------------
annual financial statements pursuant to Section 6.01(b), a written
statement, addressed to the Company from the independent certified public
accountants referred to in Section 6.01(b) who have reported on such
financial statements, substantially to the following effects (with only
such variations as reflect the then current generally applicable policy of
such accountants with respect to statements of the same or a similar import
required pursuant to comparable financing documents and which do not
materially alter the substantive import of such statement):
(i) that their audit has included a reading of the terms of
this Agreement sufficient to enable them to make the statement
referred to in Section 6.01(d)(iii) (it being understood that no audit
procedures, other than those required by generally accepted auditing
standards, shall be required);
(ii) that, in connection with their audit, except as set
forth in such written statement, nothing came to their attention which
caused them to believe that there exists at the date of such written
statement any condition or event which constitutes an Event of Default
or Default, insofar as related to accounting matters reflected in the
financial statements that were subject to auditing procedures during
the course of the audit required pursuant to Section 6.01(b) and, in
the case
55
<PAGE>
of any such Event of Default or Default which shall have come
to their attention, specifying, to the extent determined by such
accountants in connection with such audit, the nature and period of
existence thereof (it being understood that such accountants shall not
be liable, directly or indirectly, for any failure to obtain knowledge
of any Event of Default or Default or the period of existence thereof
unless such accountants should have obtained knowledge thereof in
making an audit in accordance with generally accepted auditing
standards or did not make such an audit); and
(iii) that they have read the Officers' Certificate delivered
in connection with such financial statements pursuant to Section
6.01(c) and that, in connection with their audit, except as set forth
in such written statement, nothing came to their attention that caused
them to believe that the matters set forth in such Officers'
Certificate pursuant to Sections 6.01(c)(ii) and (iii) insofar as they
relate to accounting matters reflected in the financial statements
that were subject to auditing procedures during the course of the
audit required pursuant to Section 6.01(b), have not been properly
stated in accordance with the terms of this Agreement;
(e) Commission and Other Reports. Promptly (and in any event within
----------------------------
five Business Days) after they become available, to the Administrative
Agent only, copies of (i) all financial statements, reports, notices, proxy
statements and other information sent or made available generally by the
Company or a Borrower to any class of its security holders (other than, in
the case of the Borrowers, the Company) or by any Restricted Subsidiary of
a Borrower to any class of its security holders (other than the Borrowers
or another such Subsidiary), (ii) all regular and periodic reports
(including reports on Form 8-K) and all registration statements (other than
those on Form S-8 or a successor form relating to the registration of
securities pursuant to an employee benefit plan) and prospectuses filed by
the Company, the Borrowers or any Restricted Subsidiaries with any
securities exchange, the National Association of Securities Dealers or with
the Commission, and (iii) all press releases and other statements made
available generally by the Company, the Borrowers or any Restricted
Subsidiaries to the public concerning material developments in the business
of the Company, the Borrowers or any such Restricted Subsidiary;
(f) Audit Reports. Promptly (and in any event within five Business
-------------
Days) after receipt thereof, copies of all reports submitted to a Borrower
or any of its Restricted Subsidiaries by independent certified public
accountants in connection with any annual audit of the Borrowers or any
Restricted Subsidiary made by such accountants, including, without
limitation, any comment letter submitted by such accountants in connection
with any such audit;
(g) Defaults, etc. Promptly (and in any event within five Business
--------------
Days) after any Responsible Officer of a Borrower obtains knowledge of any
condition or event which constitutes a Default or an Event of Default, or
that the Administrative Agent or
56
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any Lender has given any notice to the Borrowers or any of their Restricted
Subsidiaries or taken any other action with respect to a claimed default
under or in respect of any Debt referred to in Section 10.01(e) or 10.01(f)
or with respect to the occurrence or existence of any event or condition of
the type referred to in Section 10.01(g) or 10.01(h), an Officers'
Certificate specifying in reasonable detail the nature and period of
existence of such actual or claimed Default, Event of Default, default,
event or condition, and what action the Borrowers have taken or are taking
or propose to take with respect thereto;
(h) ERISA. Promptly (and in any event within five Business Days)
-----
after any Borrower Group Member (i) knows of the occurrence of any
Termination Event, (ii) receives with respect to any Multiemployer Plan
notice as prescribed in ERISA of any withdrawal liability assessed against
any Borrower Group Member or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning of Title IV of
ERISA), (iii) knows that a prohibited transaction (as defined in Section
406 of ERISA or Section 4975 of the Code) for which a statutory or
administrative exemption is not available or a breach of fiduciary
responsibility has occurred in connection with which any Borrower Group
Member could reasonably be subject to any material liability under Section
406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under
any agreement or other instrument pursuant to which such Borrower Group
Member has agreed or is required to indemnify any Person against any such
liability or (iv) knows that there has been a material adverse change in
the funding status of any Plan or Multiemployer Plan, a description of such
event or a copy of such notice and a statement by the principal financial
officer of the appropriate Borrower briefly setting forth the details
regarding such event or condition and the action, if any, which has been or
is being taken or is proposed to be taken by such Borrower or any Borrower
Group Member with respect thereto;
(i) Litigation, etc. Promptly (and in any event within five Business
----------------
Days) after any Responsible Officer of a Borrower obtains knowledge of any
litigation, administrative proceeding or judgment (i) relating to the
Borrowers or any of their Restricted Subsidiaries (whether or not
considered by the Borrowers to be covered by insurance) which could, if
adversely determined, have a Material Adverse Effect, or (ii) relating in
any way to this Agreement or any of the other Credit Documents, an
Officers' Certificate specifying in reasonable detail the facts and
circumstances surrounding such litigation, proceeding or judgment;
(j) Subsidiary Designation. Promptly (and in any event within five
----------------------
Business Days) after the designation by the Board of Directors of any
Subsidiary as an Unrestricted Subsidiary, or any redesignation by the Board
of Directors of a Restricted Subsidiary as an Unrestricted Subsidiary or of
an Unrestricted Subsidiary as a Restricted Subsidiary, notice thereof
accompanied by an Officers' Certificate stating that such designation or
redesignation has been made in compliance with the definition of
"Restricted Subsidiary" or "Unrestricted Subsidiary", whichever shall be
applicable, set forth in Section 1.01, and, in the case of any designation
or redesignation of a Subsidiary as an Unrestricted
57
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Subsidiary, setting forth the name of each other Subsidiary which has
become an Unrestricted Subsidiary as a result thereof;
(k) Modifications to Indenture or Indenture Notes. Promptly (and in
---------------------------------------------
any event within five Business Days) after the date on which any amendment
or modification of any term or provision of the Indenture or of any of the
Indenture Notes, or any waiver of compliance with any such term or
provision, has become effective, copies of the instruments pursuant to
which such amendment, modification or waiver was effected; and
(l) Requested Information. Promptly upon request therefor, such other
---------------------
information as to the Business or Condition of the Borrowers or their
Restricted Subsidiaries as may from time to time be reasonably requested by
the Administrative Agent or the Required Lenders.
ARTICLE VII.
INSPECTION OF PROPERTIES AND BOOKS
SECTION 7.01. Inspection Rights of Administrative Agent and Lenders.
-----------------------------------------------------
The Borrowers hereby covenant and agree that, so long as this Agreement is
in effect or any amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, and until all of the Commitments shall have
been terminated, officers or designated representatives of the Administrative
Agent or any Lender may visit and inspect any of the properties of the Borrowers
and their Restricted Subsidiaries, including their respective books of account,
records, reports and other papers, make copies and extracts therefrom, and
discuss their affairs, finances and accounts with their respective officers and
employees (with the consent of an appropriate officer) and, so long as a
Responsible Officer is present, with their independent public accountants (and
the Borrowers hereby authorize and direct each such officer, employee (with the
consent of an appropriate officer) and independent public accountant to engage
in such discussions and hereby undertakes to cause a Responsible Officer to be
present at all reasonable times for purposes of such discussions with said
accountants), all at such reasonable times and as often as may be reasonably
requested. All expenses incurred in connection with any such visit, inspection
or other exercise of rights by officers or designated representatives of the
Administrative Agent or any Lender, as applicable, pursuant to this Section
shall be borne by the Borrowers except that, if such visit, inspection or other
exercise of rights is undertaken at a time when no Default or Event of Default
shall be continuing, all such expenses incurred by the Administrative Agent or
such Lender, as applicable, in connection therewith shall, subject to the terms
of Section 11.09, be for the account of the Administrative Agent or such Lender,
as applicable (it being understood and agreed that the fees of any attorney,
accountant or other professional employed by the Borrowers in connection with
any such visit, inspection or other exercise shall in any event be for the
Borrowers' account).
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ARTICLE VIII.
COVENANTS
The Borrowers hereby covenant and agree that from and after the Closing
Date and so long as this Agreement is in effect or any amounts payable hereunder
or under any of the other Credit Documents shall remain outstanding, and until
all of the Commitments shall have been terminated:
SECTION 8.01. Maintenance of Certain Financial Conditions.
-------------------------------------------
(a) Fixed Charge Coverage Ratio. The Borrowers will not permit the Fixed
---------------------------
Charge Coverage Ratio as of any Determination Date occurring during the periods
set forth below to be less than:
Closing Date to June 29, 1998 1.5:1.0
June 30, 1998 and thereafter 1.75:1.0
(b) Consolidated Net Worth. The Borrowers will not permit Consolidated Net
----------------------
Worth as of any date to be less than the Net Worth Minimum as of such date.
(c) Total Debt Ratio. The Borrowers will not permit the Total Debt Ratio
----------------
as of any Determination Date occurring during the periods set forth below to
exceed:
Closing Date to September 29, 1998 5.0:1.0
September 30, 1998 to September 29, 1999 4.5:1.0
September 30, 1999 to September 29, 2000 4.0:1.0
September 30, 2000 and thereafter 3.75:1.0
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt.
-------------------------------------------
(a) The Borrowers will not, and will not permit any Restricted Subsidiary
to, incur any Debt on any date if immediately after giving effect to such
incurrence and the incurrence or retirement by the Borrowers and their
Restricted Subsidiaries of any other Debt on such date the Total Debt Ratio
would exceed the amount applicable under Section 8.01(c) for the period during
which such date occurs.
(b) The Borrowers will not permit any Restricted Subsidiary to incur any
Debt, except that any Restricted Subsidiary may incur and (subject to Section
8.01(c)) remain liable in respect of Debt if, on and as of the date on which
such Restricted Subsidiary proposes to incur such Debt and immediately after
giving effect to such incurrence and the incurrence or retirement by the
Borrowers and their Restricted Subsidiaries of any other Debt on such date, and
to the application of the proceeds of all such incurred Debt, the Priority Debt
Amount shall not exceed 10% of Consolidated Net Tangible Assets (the amount of
Consolidated Net Tangible Assets for purposes hereof being determined (i) as of
such date, if an Officers' Certificate dated as of such
59
<PAGE>
date shall have been provided to the Administrative Agent and the Lenders
providing facts or computations in reasonable detail demonstrating compliance
with the terms of this Section 8.02(b) in connection with the proposed
incurrence of Debt on such date, or (ii) if no such Officers' Certificate shall
have been provided to the Administrative Agent and the Lenders in connection
with the incurrence of such Debt, as of the most recent Determination Date prior
to the date of incurrence of such Debt with respect to which the Borrowers shall
have delivered the Required Financial Information).
(c) For purposes of the foregoing Sections 8.02(a) and (b), (i) the term
"incur", when used with respect to any Debt, shall mean to directly or
indirectly create, incur, assume, agree to purchase or provide funds in respect
of, or otherwise become liable (by way of Guaranty or otherwise) in respect of
such Debt, and the term "incurrence" shall have a correlative meaning, (ii) in
the event the Borrowers or any Restricted Subsidiary shall extend, renew, refund
or refinance any Debt, the Borrowers or such Restricted Subsidiary shall be
deemed to have incurred such Debt at the time of such extension, renewal,
refunding or refinancing, and (iii) any Person designated, redesignated or
otherwise becoming a Restricted Subsidiary at any time after the date of this
Agreement shall be deemed to have incurred all of its outstanding Debt at such
time.
SECTION 8.03. Liens.
-----
The Borrowers will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any character of the Borrowers or any
of their Restricted Subsidiaries (whether held on the date hereof or hereafter
acquired) or any interest therein or any income or profits therefrom except:
(a) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies either not yet due or the
payment of which is not at the time required by Section 8.12;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Persons incurred in the ordinary
course of business for sums either not yet due or the payment of which is
not at the time required by Section 8.12;
(c) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
bids, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive in any case of obligations incurred in
connection with the borrowing of money or the obtaining of advances or
credit);
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(d) Liens incidental to the conduct of business or to the ownership of
property of a character which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not, individually or in the
aggregate, interfere with the ordinary conduct of the business of a
Borrower or any of its Restricted Subsidiaries or detract from the value or
use of the properties subject to any such Liens;
(e) any attachment, judgment or other similar Lien arising in
connection with court proceedings, so long as (i) the execution or other
enforcement of such Lien is effectively stayed and the claims secured
thereby are being actively contested in good faith and by appropriate
proceedings diligently conducted and effective to prevent the forfeiture or
sale of any property of a Borrower or any Restricted Subsidiary or any
interference with the ordinary use thereof by a Borrower or any Restricted
Subsidiary, and (ii) such reserve or other appropriate provision, if any,
in the amount and of the type as shall be required by GAAP shall be
maintained therefor;
(f) Liens on assets of any Borrower or Restricted Subsidiary securing
Debt or other obligations of such Borrower or Restricted Subsidiary owing
to a Borrower or to a Restricted Subsidiary;
(g) Liens described on Schedule IX existing on the date of this
-----------
Agreement and securing the Debt described thereon as being secured by such
Liens; provided that (i) no such Lien shall at any time be extended to or
--------
cover any property of a Borrower or any Restricted Subsidiary other than
the property subject thereto on the date hereof and (ii) the principal
amount of the Debt secured by such Liens shall not be increased;
(h) Liens securing obligations incurred in connection with IDB Debt,
provided that no such Lien shall at any time extend to or cover any
--------
property of a Borrower or any Restricted Subsidiary other than the
equipment and facilities acquired or constructed with the proceeds of such
IDB Debt, real property appurtenant to such facilities, and proceeds of
such equipment, facilities and real property;
(i) Liens (including Capital Leases) created solely to secure the
deferred purchase price of fixed assets useful and intended to be used in
carrying on the business of a Borrower and its Restricted Subsidiaries
acquired or constructed by a Borrower or any Restricted Subsidiary after
the date hereof, or any Lien (including a Capital Lease) created to secure
Debt incurred solely for the purpose of financing the acquisition or
construction, as the case may be, of any such asset (if such Debt is
incurred at the time of or within 180 days after such acquisition, or the
completion of such construction) or any Lien existing on acquired assets at
the time of acquisition thereof, or, in the case of any Person which
hereafter becomes a Restricted Subsidiary, any Lien in respect of its
assets existing at the time such Person becomes a Restricted Subsidiary,
provided that:
--------
61
<PAGE>
(i) in the case of an acquisition of assets or a Person
becoming a Restricted Subsidiary, such Lien was not created in
contemplation of such event,
(ii) no such Lien shall at any time extend to or cover any
asset of a Borrower or any of its Restricted Subsidiaries other than
the acquired assets on which it was originally imposed and
improvements thereto and proceeds thereof, and
(iii) at the time of and immediately after giving effect to
the creation or incurrence of each such Lien, the aggregate principal
amount of all Debt secured by all such Liens on any such asset shall
not exceed an amount equal to the lesser of (x) the purchase price of
such asset (including, for purposes of determining such purchase
price, the principal amount of any pre-existing Debt secured by any
such Liens, whether or not a Borrower or a Restricted Subsidiary has
any personal liability with respect thereto) and (y) the fair market
value of such asset (as determined by the Board of Directors) at such
time;
(j) Liens in favor of a Receivables Financing SPC or Receivables
Financier created or deemed to exist in connection with a Permitted
Receivables Financing (including any related filings of any financing
statements), but only to the extent that any such Lien relates to the
applicable receivables and related property (or percentage interests
therein) actually sold, contributed, financed or otherwise conveyed or
pledged pursuant to such transaction; and
(k) Liens in addition to those permitted by the foregoing provisions
of this Section 8.03 securing Debt of a Borrower or a Restricted Subsidiary
or satisfying cash collateral requirements hereunder; provided that,
--------
immediately after giving effect to the creation, incurrence or assumption
of each such additional Lien, the Priority Debt Amount shall not exceed 10%
of Consolidated Net Tangible Assets (the amount of Consolidated Net
Tangible Assets for purposes hereof being determined (i) as of the date of
creation, incurrence or assumption of such Lien, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.03(k) in connection with the proposed creation, incurrence or assumption
of such Lien on such date, or (ii) if no such Officers' Certificate shall
have been provided to the Administrative Agent and the Lenders in
connection with the creation, incurrence or assumption of such Lien, as of
the most recent Determination Date prior to the date of creation,
incurrence or assumption of such Lien with respect to which the Borrowers
shall have delivered the Required Financial Information).
For all purposes of this Section 8.03, (A) Liens existing on or with
respect to any property of any Person at the time it is designated or
redesignated or otherwise becomes a Restricted Subsidiary shall be deemed to
have been created at the time it becomes a Restricted Subsidiary, (B) any
extension, renewal, refunding or refinancing of any Lien by a Borrower or
62
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any Restricted Subsidiary shall be deemed to be an incurrence of such Lien at
the time of such extension, renewal, refunding or refinancing, and (C) any Lien
existing on any property at the time it is acquired by a Borrower or any
Restricted Subsidiary shall be deemed to have been created at the time of such
acquisition.
SECTION 8.04. Sale Leasebacks.
---------------
The Borrowers will not, and will not permit any Restricted Subsidiary to,
enter into any Sale Leaseback unless
(a) immediately after giving effect to such Sale Leaseback, the
Priority Debt Amount shall not exceed 10% of Consolidated Net Tangible
Assets (the amount of Consolidated Net Tangible Assets for purposes hereof
being determined (i) as of the date of such Sale Leaseback, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.04 in connection with such Sale Leaseback, or (ii) if no such Officers'
Certificate shall have been provided to the Administrative Agent and the
Lenders in connection with such Sale Leaseback, as of the most recent
Determination Date prior to the date of such Sale Leaseback with respect to
which the Borrowers shall have delivered the Required Financial
Information); or
(b) the net proceeds of such Sale Leaseback are reinvested in property
or assets, or such proceeds are otherwise applied, in compliance with
Section 3.02(b).
SECTION 8.05. Restricted Payments; Restricted Investments.
-------------------------------------------
The Borrowers will not, directly or indirectly (through a Restricted
Subsidiary or otherwise), declare, order, pay, distribute, make, or set apart
any sum or property for any Restricted Payment, and the Borrowers will not, and
will not permit any Restricted Subsidiary to, make or become obligated to make
any Restricted Investment, unless, both at the time of and immediately after
effect has been given to any such proposed action:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) the aggregate amount of
(i) all sums and property included in all Restricted Payments
directly or indirectly declared, ordered, paid, distributed, made or
set apart by the Borrowers during the period (taken as one accounting
period) from and including the Closing Date to and including the date
of such proposed action (the "Computation Period"), plus
------------------ ----
(ii) the aggregate amount (at original cost) of all Restricted
Investments of the Borrowers and all Restricted Subsidiaries made
during the
63
<PAGE>
Computation Period and all commitments for such Restricted Investments
made by a Borrower or any Restricted Subsidiary outstanding on such
date,
shall not exceed the sum of
(A) $10,000,000, plus
----
(B) 50% (or, in the case of a net loss for the Computation Period
taken as a whole, minus 100%) of Consolidated Net Income for the
-----
Computation Period, plus
----
(C) the aggregate amount of the net cash proceeds received by the
Borrowers and their respective Restricted Subsidiaries during the
Computation Period from the sale of capital stock of the Borrowers and
their Restricted Subsidiaries, from contributions to the common equity
capital of the Borrowers and their Restricted Subsidiaries, and as
consideration for the issuance during the Computation Period of Debt
of the Borrowers and their Restricted Subsidiaries convertible into
their respective capital stock, but only to the extent that any such
Debt has been converted into such capital stock during the Computation
Period, plus
----
(D) to the extent not included in Consolidated Net Income for the
Computation Period, the aggregate amount of the cash payments received
by the Borrowers and their Restricted Subsidiaries during the
Computation Period representing net returns of capital on Restricted
Investments made during the Computation Period.
For all purposes of this Section 8.05, (1) the amount involved in any
Restricted Payment directly or indirectly declared, ordered, paid, distributed,
made or set apart in property, and the amount of any Restricted Investment made
through the transfer of property, shall be deemed to be the greater of (x) the
fair market value of such property (as determined by the Board of Directors) at
the time of such action and (y) the net book value thereof on the books of the
Borrowers or any of their Restricted Subsidiaries (as determined in accordance
with GAAP), in each case as determined on the earliest of the dates such
Restricted Payment is declared, ordered, paid, distributed, made or set apart or
the date such Restricted Investment is made or committed to be made, as the case
may be, and (2) all Investments of any Person existing immediately after such
Person becomes a Restricted Subsidiary which would be Restricted Investments if
made by such Person while subject to the provisions of this Agreement shall be
deemed to be Restricted Investments and to have been made at the time such
Person becomes a Restricted Subsidiary.
The Borrowers will not pay any dividend which they have not declared nor
will they declare any dividend (other than dividends payable solely in shares of
their common stock) on any shares of any class of capital stock which is payable
more than 60 days after the date of declaration thereof.
64
<PAGE>
The provisions of this Section 8.05 shall not, in any event, apply to
Permitted Payments or IDB Debt permitted hereunder, or be construed as limiting
the ability of JPFDI to pay dividends to RSI.
SECTION 8.06. Subsidiary Stock and Debt.
-------------------------
Without limiting the provisions of, and subject to, Section 8.02, the
Borrowers will not, and will not permit any Restricted Subsidiary to, issue,
sell, assign or otherwise dispose of or part with control of, any shares of
stock, Debt or other securities (or warrants, rights or options to acquire stock
or other securities), in each case of any Restricted Subsidiary, except to a
Borrower or a Predominantly Owned Restricted Subsidiary and except that:
(a) all shares of stock and all Debt and other securities of any
Restricted Subsidiary at the time owned by or owed to a Borrower and all
Restricted Subsidiaries may be sold as an entirety for a consideration
which represents the fair market value (as determined by the Board of
Directors) at the time of sale of the shares of stock and Debt and other
Securities so sold; or
(b) less than all shares of stock of any Restricted Subsidiary at the
time owned by a Borrower and all Restricted Subsidiaries may be sold, or a
Restricted Subsidiary may issue shares of its stock to a Person other than
the Borrowers or a Predominantly Owned Restricted Subsidiary, in either
case for a consideration which represents the fair market value thereof (as
determined by the Board of Directors) at the time of sale or issuance, as
the case may be, of such shares, if, immediately after giving effect to
such transaction, such Restricted Subsidiary shall be a Predominantly Owned
Restricted Subsidiary, or
(c) Debt of a Restricted Subsidiary at the time owed to a Borrower or
a Restricted Subsidiary may be sold to a third Person in a transaction not
described in Section 8.06(a) for a consideration at least equal to the
principal amount of such Debt plus interest accrued and payable thereon (to
the extent such interest is not payable to the Borrowers or a Restricted
Subsidiary following such sale);
provided, however, that it shall be a condition to the consummation by the
- -------- -------
Borrowers or any Restricted Subsidiary of any transaction described in the
foregoing Sections 8.06(a), (b) and (c) that (i) in the case of any sale or
issuance of stock of a Restricted Subsidiary described in Sections 8.06(a) or
(b), the assets of such Restricted Subsidiary represented by the equity interest
to be so sold or issued are such that the sale of such assets would then be
permitted by Section 8.07 (in which case such transaction shall be considered
and deemed a disposition of assets for purposes of Section 8.07), and (ii) in
the case of any such transaction described in Sections 8.06 (a), (b) or (c),
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.
The provisions of this Section 8.06 shall not, in any event, apply to IDB
Debt permitted hereunder.
65
<PAGE>
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc.
------------------------------------------
The Borrowers will not, and will not permit any of their Restricted
Subsidiaries to, voluntarily liquidate or dissolve, or consolidate or merge with
or into any other Person, or permit any other Person to consolidate with or
merge with or into it, or participate in a share exchange with or sell, lease,
transfer, contribute or otherwise dispose of any of its assets to any other
Person, except that, subject in any event to compliance with the last paragraph
of this Section 8.07:
(a) a Borrower and/or any Restricted Subsidiary may sell or otherwise
dispose of its assets (i) in the ordinary course of its business as such
business is permitted to be conducted in compliance with Section 8.09, (ii)
in a Permitted Receivables Financing and (iii) in a Tax Reduction
Transaction, or
(b) (i) any Restricted Subsidiary may (A) consolidate with or merge
into a Borrower or a Wholly Owned Restricted Subsidiary if such Borrower or
such Wholly Owned Restricted Subsidiary shall be the continuing or
surviving corporation or (B) consolidate or merge with any other
corporation if such Restricted Subsidiary shall be the continuing or
surviving corporation and (ii) any Restricted Subsidiary may consolidate
with or merge into any other Restricted Subsidiary; or
(c) any Restricted Subsidiary may sell, lease, transfer, contribute or
otherwise dispose of its assets in whole or in part to a Borrower or a
Wholly Owned Restricted Subsidiary or any other Restricted Subsidiary and
may, following any such disposition in whole, liquidate and dissolve; or
(d) a Borrower may consolidate or merge with any other Person
(including the other Borrower) if such Borrower (or the other Borrower)
shall be the continuing or surviving corporation; or
(e) a Borrower may consolidate with or merge into, or sell, transfer
or otherwise dispose of its assets as an entirety or substantially as an
entirety, to any other Person (a "Successor"; any such consolidation,
---------
merger or disposition of assets being hereinafter referred to as a
"Successor Transaction"), but only if such Successor (i) is a solvent
---------------------
corporation duly organized, validly existing and in good standing under the
laws of the United States of America or a state thereof and (ii) expressly
assumes, not later than the consummation of such Successor Transaction,
pursuant to a written instrument satisfactory in form, scope and substance
to the Lenders, the due and punctual payment of all principal, interest and
Fees in accordance with the terms hereof and of the other Credit Documents
to which such Borrower is a party, and the due and punctual performance and
observance of all other obligations of such Borrower under this Agreement,
an executed counterpart of which instrument shall have been furnished to
each of the Lenders together with a favorable opinion of counsel
satisfactory to each Lender covering such legal
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matters relating to such Successor, the Successor Transaction, such
assumption and such instrument as such holder may reasonably request; or
(f) the Borrowers and their Restricted Subsidiaries, in addition to
making any sale or disposition permitted by the foregoing provisions of
this Section, may sell or otherwise dispose of property and assets for fair
consideration (as determined by the Board of Directors) at the time of such
sale, subject to the commitment reduction and mandatory prepayment
provisions of Section 3.02(b)(ii).
No consolidation, merger, sale, lease, transfer, contribution or other
disposition referred to in Sections 8.07(b) through (f) shall be permitted
unless (x) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing and (y) upon giving
effect to any such transaction (to the extent required in the definition of
"Operating Cash Flow" set forth in Section 1.01) as of the first day of the four
consecutive fiscal quarters ended as of the most recent Determination Date
occurring prior to the date of such proposed transaction with respect to which
the Borrowers shall have delivered the Required Financial Information, no
Default or Event of Default would have occurred as the result of a violation of
Section 8.01(c) on such Determination Date. Nothing contained in this Section
shall permit (i) the disposition of assets consisting of, stock or similar
interests or other securities (or warrants, rights or options to acquire stock
or other securities) of any Restricted Subsidiary unless such disposition, if
subject to Section 8.06, is also permitted by Section 8.06, or (ii) the
disposition of any Transferred Assets (or any interest therein) by the Borrowers
or any Restricted Subsidiary to any Unrestricted Subsidiary except in connection
with a Permitted Receivables Financing.
SECTION 8.08. Transactions with Affiliates; Tax Consolidation.
-----------------------------------------------
(a) The Borrowers will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or be a party to any transaction or
arrangement (including, without limitation, the contribution, transfer,
purchase, sale or exchange of property, or the rendering of any service, or the
payment of management or other service fees) with any Affiliate unless such
transaction or arrangement is entered into upon terms that are fair and
reasonable and no less favorable to the Borrowers or such Restricted Subsidiary,
as the case may be, than those which might be obtained at the time on an arm's-
length basis from any Person which is not such an Affiliate; provided that,
--------
subject to the terms of Section 9.13, the foregoing restrictions shall not apply
to (i) any transaction between one or more of the Company, the Borrowers and the
Restricted Subsidiaries, on the one hand, with one or more of the Company, the
Borrowers and the Restricted Subsidiaries, on the other hand; or (ii)
transactions effected pursuant to and in compliance with the terms of the
agreements listed on Schedule X, in the case of each thereof, as the same shall
----------
be in effect on and as of the Closing Date (collectively, the "Existing
--------
Affiliate Agreements"). Nothing contained in this Section shall permit the
- --------------------
disposition of any accounts receivable (or any interest therein) by the
Borrowers or any Restricted Subsidiary to any Unrestricted Subsidiary except in
connection with a Permitted Receivables Financing.
(b) The Borrowers will not, and will not permit any of their Subsidiaries
to, file or consent to the filing of any consolidated income tax return with the
Company or any other
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Person (other than a Borrower or a Subsidiary of either Borrower) except that
the Borrowers or any such Subsidiary may file or consent to the filing of a
consolidated United States federal income tax return with the Company if (but
only if) the Company shall have entered into a valid and binding agreement to
reimburse to the Borrowers, or to allow the Borrowers to retain, a sum equal to
the amount by which the income taxes of the consolidated group of corporations
of which the Borrowers are a part are reduced as a result of the inclusion of
the Borrowers in the consolidated return of such group; provided, that the
--------
Borrowers may agree to pay the Company an amount not to exceed the amount of
income taxes which would have been payable by the Borrowers if they had filed
their income tax returns on a basis not consolidated with the Company, subject
to appropriate adjustment in the event that the amount of such income taxes is
increased or reduced by reason of any audit by a taxing authority or any
successful claim for a refund, any such payment or reimbursement to be computed
in accordance with applicable tax law, rules and regulations, and to be made at
the time of payment or refund of any such income taxes.
SECTION 8.09. Nature of Business.
------------------
The Borrowers and their Restricted Subsidiaries will remain principally
engaged in the business of broadline distribution of food and related products
to restaurants and other food service establishments, and will not engage in any
line of business in which they are not currently engaged to such an extent that
the business of the Borrowers and their Restricted Subsidiaries taken as a whole
would be fundamentally different in nature from the business of the Borrowers
and their Restricted Subsidiaries on the date hereof. As of the Closing Date,
the Borrowers and the Restricted Subsidiaries are also engaged in the
manufacturing and importing of such products and the design, construction and
installation of equipment in restaurants and other food service establishments.
SECTION 8.10. Books and Records; Fiscal Year.
-------------------------------
The Borrowers will, and will cause each of their Subsidiaries to, (a) keep
proper books of record and account in which full, true and correct entries will
be made of all its material business dealings and transactions in accordance
with GAAP applied on a consistent basis and (b) maintain a system of accounting
established and administered in accordance with GAAP, and set aside on their
books from their earnings for each fiscal period all proper reserves, accruals
and provisions which, in accordance with GAAP, should be set aside from such
earnings in connection with their business, including, without limitation,
provisions for depreciation, obsolescence and/or amortization, and accruals for
taxes for such period. The Borrowers will give the Administrative Agent and
each of the Lenders advance written notice of any change in the basis on which
the fiscal year of the Borrowers or any Restricted Subsidiary is determined,
provided that no such change shall result in either Borrower having a fiscal
- --------
year longer than twelve (12) fiscal months.
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SECTION 8.11. Corporate Existence; Licenses.
-----------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, do or cause to be done all things necessary to preserve and keep in full
force and effect their corporate existence (except as otherwise permitted by
Section 8.07) and their rights (charter and statutory) and Licenses; except
that, subject to compliance with Sections 8.06 and 8.07 and the next succeeding
sentence of this Section, the rights and Licenses of the Borrowers or any of
their Restricted Subsidiaries may be abandoned, modified or terminated if in the
judgment of the Board of Directors such abandonment, modification or termination
is in the best interests of the Borrowers and their Restricted Subsidiaries and
is not disadvantageous to the Lenders. The Borrowers will, and will cause each
of their Restricted Subsidiaries to, in any event maintain the validity of all
Licenses necessary in any material respect for the conduct of the business of
the Borrowers and their Restricted Subsidiaries as now conducted and as proposed
to be conducted.
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc.
-----------------------------------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, promptly pay and discharge or cause to be promptly paid and discharged when
due and before the same shall become delinquent (a) all taxes, assessments and
governmental charges or levies imposed upon them or upon their income or profits
or upon any of their franchises, Licenses, business or property, or upon any
part thereof, and (b) all claims of landlords, carriers, warehousemen,
mechanics, materialmen and other similar Persons for labor, materials, supplies
and rentals which, if unpaid, might by law become a Lien or charge upon any of
their property; provided, however, that the failure of the Borrowers or any of
-------- -------
their Restricted Subsidiaries to pay any such tax, assessment, charge, levy or
claim shall not constitute a Default hereunder if and for so long as the amount,
applicability or validity thereof shall concurrently be contested in good faith
by appropriate and timely actions or proceedings diligently pursued, and if such
reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made therefor and the consequences of such failure shall not
have, either alone or taken together with the consequences of all other such
failures, a Material Adverse Effect.
SECTION 8.13. Maintenance of Properties.
-------------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, maintain and keep, or cause to be maintained and kept, in good repair,
working order and condition (ordinary wear and tear excepted) all properties
(whether owned or leased) used or useful in the business of the Borrowers and
their Restricted Subsidiaries, and from time to time make or cause to be made
all necessary and proper repairs, renewals, replacements and improvements
thereof so that the business carried on in connection therewith may be properly
and advantageously conducted consistent with past practices of the Borrowers and
their Restricted Subsidiaries.
SECTION 8.14. Insurance.
---------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, keep adequately insured, by financially sound and reputable insurers, all of
their respective property of
69
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a character customarily insured against by prudent corporations engaged in the
same or a similar business and similarly situated against loss or damage of the
kinds and in amounts customarily insured against by such corporations, and with
deductibles or coinsurance no greater than is customary, and carry (or cause
their respective suppliers to carry, under arrangements pursuant to which a
Borrower or its Restricted Subsidiary is named an additional insured), with such
insurers in customary amounts, such other insurance, including public liability
insurance and insurance against claims for any violation of applicable law, as
is customarily carried by prudent corporations of established reputation engaged
in the same or a similar business and similarly situated; provided, however,
-------- -------
that the Borrowers and their Restricted Subsidiaries may, consistently with
their practices prior to the date hereof, self-insure with respect to certain
categories of insurance (including, but not limited to, property and workers'
compensation claims) so long as (i) the respective amounts of such categories of
self insurance for the Borrowers and all Restricted Subsidiaries shall not
exceed the amounts thereof from time to time recommended to the Borrowers by an
independent firm of risk management consultants of recognized standing and (ii)
all reserves required in accordance with GAAP to be maintained by the Borrowers
and their Restricted Subsidiaries in respect of all such self insurance
(including self insurance in effect resulting from co-insurance, deductibility
or similar clauses) shall be maintained through a security arrangement as
required by the respective insurer (which may include the procurement by the
Borrowers, as account party, of letters of credit as permitted under the Five
Year Credit Agreement), or other arrangements, not to include cash collateral,
in compliance with Section 8.03; provided, that if letters of credit are offered
to any such insurer but such insurer requires cash collateral in lieu of such
letters of credit, then such other arrangements may include cash collateral.
SECTION 8.15. Compliance with Laws.
--------------------
The Borrowers will, and will cause each of their Restricted Subsidiaries
to, promptly comply in all material respects with all laws, statutes, rules,
regulations and ordinances and all Orders of, and restrictions imposed by, any
court, arbitrator or Governmental Body in respect of the conduct of their
respective business and the ownership of their respective properties (including,
without limitation, applicable laws, statutes, rules, regulations, ordinances
and Orders relating to occupational health and safety standards, consumer
protection and equal employment opportunities), except to the extent that the
applicability or validity of any such law, statute, rule, regulation, ordinance
or Order is being contested in good faith by appropriate and timely actions or
proceedings diligently pursued, and for which such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made, so long as
such actions or proceedings are effective to prevent the imposition of any
material penalty on the Borrowers or such Restricted Subsidiary and the
consequences of the failure to comply with such contested law, statute, rule,
regulation, ordinance or Order and of the conduct of such action or proceeding
could not reasonably be expected to have, either alone or taken together with
the consequences of all other such failures, actions and proceedings, a Material
Adverse Effect.
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SECTION 8.16. Environmental Matters.
---------------------
(a) The Borrowers will, and will cause each of their Restricted
Subsidiaries to, (i) obtain and maintain in full force and effect all
Environmental Permits that may be required from time to time under any
Environmental Laws applicable to the Borrowers or any Restricted Subsidiary and
(ii) be and remain in compliance in all material respects with all terms and
conditions of all such Environmental Permits and with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in all applicable Environmental Laws.
(b) The Borrowers will not, and will not permit any of their Restricted
Subsidiaries to, (i) cause or allow (A) any Hazardous Substance to be present at
any time on, in, under or above the Borrower Premises or any part thereof or (B)
the Borrower Premises or any part thereof to be used at any time to manufacture,
generate, refine, process, distribute, use, sell, treat, receive, store, dispose
of, transport, arrange for transport of, handle, or be involved in any other
activity involving, any Hazardous Substance, or (ii) conduct any such activities
described in the foregoing clause (i)(B) on the Borrower Premises or anywhere
else, except, in each case referred to in the foregoing clauses (i) and (ii), in
a manner that is in compliance in all material respects with all applicable
Environmental Laws and Environmental Permits and to an extent that will not have
a Material Adverse Effect; provided, however, that the existence of the
-------- -------
circumstances described on Schedule XI with respect to the Everett Facility
-----------
shall not be deemed to constitute a default by the Borrowers in the performance
of their respective obligations under this Section 8.16(b) so long as neither
such circumstances nor any claim or liability asserted against the Borrowers in
connection therewith nor any action required to be taken by the Borrowers with
respect thereto shall have had a Material Adverse Effect.
SECTION 8.17. Maintenance of Office.
---------------------
The Borrowers will maintain their principal office at a location in the
United States of America where notices, presentations and demands in respect of
this Agreement may be made upon them, and will notify the Administrative Agent
and each of the Lenders in writing of any change of location of such office
reasonably promptly following the occurrence of such change. Such office shall
first be maintained at the address of the Borrowers set forth in Section
12.01(a).
SECTION 8.18. Future Restricted Subsidiaries.
------------------------------
The Borrowers will cause each Subsidiary (other than any Subsidiary created
in connection with any Permitted Receivables Financing for the sole purpose of,
and whose business activities are (and at all times remain) limited to,
purchasing accounts receivable (or any interests therein) from the Borrowers or
any of their Restricted Subsidiaries and selling, transferring or otherwise
conveying such accounts receivable (or any interests therein) to the Receivables
Financier for such Permitted Receivables Financing) which at any time on or
following the Closing Date shall be designated or redesignated in accordance
with the terms of this Agreement as a Restricted Subsidiary, not later than the
time of effectiveness of such designation or redesignation, to guarantee
pursuant to the Guaranty Agreement the obligations of
71
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the Borrowers under this Agreement and the other Credit Documents to which the
Borrowers are a party. In furtherance of the above, the Borrowers shall notify
the Administrative Agent and the Lenders in accordance with Section 6.01(j) upon
any Subsidiary being designated or redesignated in accordance with the terms of
this Agreement as a Restricted Subsidiary and shall cause such Subsidiary (i) to
execute a Guarantor Joinder Agreement and (ii) to deliver such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, including without limitation certified corporate resolutions
and other corporate documents of such Subsidiary and favorable opinions of
counsel to such Subsidiary (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above), all in form, content and scope reasonably satisfactory to the
Administrative Agent.
Notwithstanding any provision of this Agreement or the Guaranty Agreement
to the contrary, in the event that any Guarantor shall cease to be a Restricted
Subsidiary in accordance with the terms of this Agreement, then (1) such
Guarantor, automatically and without further act on the part of the
Administrative Agent or the Lenders, shall be released from its obligations
under the Guaranty Agreement and (2) promptly upon the request of the Borrowers,
the Administrative Agent (on behalf of the Lenders) shall execute such documents
and take such other action reasonably requested by the Borrowers to memorialize
the release of such Guarantor from its obligations arising under the Guaranty
Agreement.
SECTION 8.19. Year 2000.
---------
Each 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. At the request of the Administrative Agent or any Lender, each
Borrower shall provide the Administrative Agent or such Lender, as the case may
be, with assurance reasonably acceptable to the Administrative Agent or such
Lender, as the case may be, of such Borrower's year 2000 capability.
ARTICLE IX.
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Each of the Borrowers hereby represents and warrants to each Lender that:
SECTION 9.01. Organization and Authority of the Borrowers, etc.
------------------------------------------------
Each Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite legal
right, power and authority to own or hold under lease the property it purports
to own or hold under lease, to carry on its business as now conducted and as
proposed to be conducted, and to enter into and carry out the terms of this
Agreement and the other Credit Documents to which it is a party. As of the
Closing Date, each Borrower has, by all necessary corporate action (including
all action of its
72
<PAGE>
shareholders required in connection therewith), duly authorized the execution
and delivery of, and the performance of its obligations under, this Agreement
and the other Credit Documents to which it is a party.
SECTION 9.02. Subsidiaries.
------------
Schedule VIII lists all existing Subsidiaries of the Borrowers as of the
-------------
Closing Date and correctly sets forth, as to each Subsidiary (a) its name, (b)
its jurisdiction of organization, (c) the percentage of its issued and
outstanding shares of capital stock of each class owned by a Borrower or one of
its Subsidiaries (specifying each such Subsidiary), and (d) the name of each
Person, if any, other than a Borrower or one of its Subsidiaries owning
outstanding shares of capital stock of any class of such Subsidiary and the
percentage of each such class of stock owned by such Person. The Borrowers do
not, as of the date of this Agreement, and will not, as of the Closing Date,
have any Unrestricted Subsidiaries; and each Subsidiary listed on Schedule VIII
-------------
is initially designated as a Restricted Subsidiary. Each such Restricted
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite legal right, power and authority to own or hold under lease the
property it purports to own or hold under lease, to carry on its business as now
conducted and as proposed to be conducted, and to enter into and carry out the
terms of the Guaranty Agreement. Each such Restricted Subsidiary has, by all
necessary corporate action (including all action of its shareholders required in
connection therewith), duly authorized the execution and delivery of, and the
performance of its obligations under the Guaranty Agreement. All of the
outstanding shares of capital stock of each such Restricted Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable and all
shares of capital stock indicated on Schedule VIII as owned by a Borrower or any
-------------
other such Restricted Subsidiary as of the Closing Date are owned beneficially
and of record by a Borrower or such other Restricted Subsidiary, as the case may
be; and immediately after giving effect to the transactions to be consummated on
the Closing Date such shares will be so owned, free and clear of any Lien.
Except as otherwise permitted by Section 8.06, there are no outstanding rights,
options, warrants, conversion rights or agreements for the purchase or
acquisition from the Borrowers or any of their Subsidiaries of any shares of
capital stock or similar interests or other securities of any Subsidiary.
SECTION 9.03. Qualification.
-------------
Each Borrower is, and each of its Restricted Subsidiaries is, duly
qualified or licensed and in good standing as a foreign corporation duly
authorized to do business in each jurisdiction (other than the jurisdiction of
its organization) in which the nature of its activities or the character of the
properties it owns or leases makes such qualification or licensing necessary and
in which the failure to so qualify or be licensed would have a Material Adverse
Effect. Schedule VIII sets forth as to the Borrowers and each of their
-------------
Restricted Subsidiaries the jurisdictions (other than the jurisdiction of its
organization) in which, as of the Closing Date, it is qualified or licensed to
do business or in which any substantial part of its tangible assets is located.
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SECTION 9.04. Financial Statements.
--------------------
The financial statements referenced in Sections 5.01(a)(i) and 5.01(a)(ii)
have been prepared in accordance with GAAP, are complete and correct in all
material respects and present fairly the financial position and results of
operations and cash flows of the entities for the periods specified, subject in
the case of interim company-prepared statements to normal year-end adjustments
and the absence of footnotes.
SECTION 9.05. Changes, etc.
-------------
Since June 30, 1997, (a) there have been no changes in the Business or
Condition of the Borrowers and their Subsidiaries which has been, either in any
one case or in the aggregate, Materially Adverse, and (b) there has been no
occurrence or development, whether or not insured against, which has had or
could reasonably be expected to have a Material Adverse Effect, except in the
case of (a) or (b) above, to the extent, if any, disclosed in the Registration
Statement or other written materials furnished by the Borrowers by the Closing
Date.
SECTION 9.06. Compliance with Laws, Other Instruments, etc.
--------------------------------------------
(a) Neither of the Borrowers nor any of their Subsidiaries is in violation
of any term of its corporate charter or by-laws. Neither of the Borrowers nor
any of their Subsidiaries is in violation of any term of any agreement,
indenture, mortgage or instrument to which it is a party or by which it or any
of its properties may be bound or affected or any existing statute, law,
governmental rule, regulation or ordinance, or any Order of any court,
arbitrator or Governmental Body applicable to it (including, without limitation,
any statute, law, rule, regulation, ordinance or Order relating to occupational
health and safety standards, consumer protection or equal employment practice
requirements and applicable regulations of the Department of Agriculture, the
Food and Drug Administration and state and local health departments), the
consequences of which violation, either alone or taken together with the
consequences of all other such violations, have had or could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the execution and delivery of this Agreement or any of the
other Credit Documents nor the performance of the terms and provisions hereof or
thereof nor the consummation of the transactions contemplated hereby or thereby
will result in any breach of or be in conflict with or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in a loss of any benefit to which the Borrowers or
any of their Subsidiaries is entitled under, or result in (or require) the
creation of any Lien upon any property of the Borrowers under, any term of, the
corporate charter or by-laws of the Borrowers or any of their Subsidiaries or
any material agreement, indenture, mortgage or instrument to which the Borrowers
or any of their Subsidiaries is a party or by which the Borrowers, any such
Subsidiary or any of their respective properties may be bound or affected, or
any existing statute, law, rule, regulation or ordinance or any Order of any
court, arbitrator or Governmental Body applicable to the Borrowers, any such
Subsidiary or any of their respective properties.
74
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SECTION 9.07. Consents and Approvals.
----------------------
No Approval by, from or with, and no other action in respect of, any
Governmental Body or any other Person (including any trustee, or any holder of
any indebtedness, securities or other obligations of the Borrowers or any
Restricted Subsidiary) is required (a) for or in connection with the valid
execution and delivery by the Borrowers or any Restricted Subsidiary of or the
performance by the Borrowers or any Restricted Subsidiary of their obligations
under this Agreement or any of the other Credit Documents or the consummation by
the Borrowers or any Restricted Subsidiary of the transactions contemplated
hereby and thereby, or (b) as a condition to the legality, validity or
enforceability as against the Borrowers or any Restricted Subsidiary of this
Agreement or any of the other Credit Documents, in each case, other than (i)
routine filings before and after the Closing Date with the Commission and state
Blue Sky authorities, and (ii) the Approvals described on Schedule XII, all of
------------
which have been duly obtained or made and are in full force and effect and true
and correct copies of instruments evidencing which have been furnished to the
Administrative Agent.
SECTION 9.08. Debt, etc.
----------
Schedule IX correctly lists all secured and unsecured Debt of the Borrowers
-----------
and each of their Subsidiaries outstanding on the date hereof (except as
otherwise noted thereon) and shows, as to each item of Debt listed thereon, the
obligor and obligee, the aggregate principal amount outstanding as of the
Closing Date. No default or event of default or basis for acceleration exists
(nor in the case of Permitted Receivables Financings, has any termination event
occurred) or, immediately after giving effect to the initial borrowings
hereunder on the Closing Date and the other transactions to occur on the Closing
Date as contemplated hereby, will exist (or, but for the permanent waiver
thereof, would exist) under any instrument or agreement evidencing, providing
for the issuance or securing of, or otherwise relating to any such Debt due to
(a) nonpayment of any obligations thereunder or (b) any failure to duly perform
or observe any other covenant, provision, agreement or condition contained
therein, the consequences of which failure, either alone or taken together with
the consequences of all other such failures, have had or could reasonably be
expected to have a Material Adverse Effect. As of the Closing Date, neither the
Borrowers nor any Restricted Subsidiary is a party to or bound by any charter
provision, by-law, agreement, indenture, mortgage, lease, instrument or License
(other than this Agreement and the other Credit Documents and the Five Year
Credit Agreement and the other Credit Documents (as defined in the Five Year
Credit Agreement)) which contains any restriction on the incurrence by it of any
Debt, except for the Indenture and the Note Purchase Agreements, true and
correct copies of each of which have been delivered to the Administrative Agent
and pursuant to each of which the Borrowers or such Restricted Subsidiary, as
applicable, either is permitted to incur Debt hereunder and/or under the other
Credit Documents to which they are a party or has duly obtained in writing and
delivered to the Administrative Agent all such Approvals as are or will be
necessary or appropriate to permit such incurrence.
75
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SECTION 9.09. Title to Property; Leases; Investments; Existing Affiliate
----------------------------------------------------------
Agreements.
- ----------
(a) Each Borrower and its Restricted Subsidiaries have good and marketable
title to their real properties and good title to the other properties they
purport to own, including those reflected in the balance sheet included in the
most recent audited financial statements referred to in Section 9.04 or
purported to have been acquired by the Borrowers or any of their Restricted
Subsidiaries after the date of such balance sheet (other than any such
properties disposed of since such date in the ordinary course of business),
subject in the case of all such property to no Liens other than Liens permitted
by Section 8.03. The Borrowers and their Restricted Subsidiaries enjoy peaceful
and undisturbed possession under all leases of all personal and all real
property necessary in any material respect to their respective operations, all
such leases are valid and subsisting and in full force and effect, and neither
the Borrowers nor any such Subsidiary is in default in any material respect in
the performance or observance of its obligations thereunder. Schedule XIII
-------------
includes a general description of each Operating Lease existing as of the date
hereof under which the Borrowers or a Restricted Subsidiary is a lessee and
under which the annual rental obligations exceed $100,000, and sets forth with
respect to each such lease, (i) the name of the lessor thereunder and (ii) a
general description of the property leased.
(b) Schedule VII correctly lists all Investments of the Borrowers and their
------------
Restricted Subsidiaries of the character described in subdivision (a) of the
definition of "Investment" set forth in Section 1.01 (other than Investments in
Subsidiaries) which are existing on the date hereof.
(c) The Borrowers have delivered to the Administrative Agent a true and
correct copy of each of the Existing Affiliate Agreements, in the case of each
thereof as the same shall have been amended and be in effect on and as of the
Closing Date.
SECTION 9.10. Litigation.
----------
There are no actions, suits or proceedings pending or, to the knowledge of
the Borrowers, threatened against the Borrowers or any of their Restricted
Subsidiaries or any of their respective properties (and no basis therefor is
known to the Borrowers) in any court or before any arbitrator of any kind or
before or by any Governmental Body, which (a) question the validity or legality
of this Agreement or any of the other Credit Documents or any action taken or to
be taken pursuant hereto or thereto or (b) either alone or taken together with
all other such actions, suits and proceedings, have had or could reasonably be
expected to have a Material Adverse Effect.
SECTION 9.11. Taxes.
-----
Each Borrower and its Restricted Subsidiaries have filed all tax returns
which are required by law to have been filed by them in any jurisdiction (other
than tax returns (i) which may be required to be filed with state or local
taxing authorities which have not advised the Borrowers or any Restricted
Subsidiary of such requirement, and (ii) with respect to which, neither the
failure to file the same nor the failure to pay any taxes, assessments or
charges which might be shown to be owing thereon has had or could reasonably be
expected to have a Material
76
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Adverse Effect) and, to the best of the Borrowers' knowledge, have paid all
taxes, assessments, fees and charges of each Governmental Body shown to be owing
on such filed returns to the extent the same have become due and payable and
before they have become delinquent other than those presently payable without
penalty or interest and those being contested in good faith by appropriate and
timely actions or proceedings diligently pursued and with respect to which
reserves have been provided for in the Borrowers' financial statements to the
extent required by GAAP. The Borrowers do not know of any additional assessment
or proposed assessment for any fiscal year, and no material controversy in
respect of additional federal or state income taxes is pending or to the
knowledge of the Borrowers is threatened except any with respect to which
reserves have been provided for in the Borrowers' financial statements to the
extent required by GAAP. In the opinion of the Borrowers, all tax liabilities
(including taxes for all open years and for its current fiscal period) are
adequately provided for on the books of the Borrowers and their Restricted
Subsidiaries in accordance with GAAP.
SECTION 9.12. Compliance with ERISA.
---------------------
(a) No Termination Event has occurred, and no event or condition has
occurred or exists as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan. No accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, has occurred with respect to any Plan or, to the best of
the Borrowers' knowledge, any Multiemployer Plan. The present value of all
accrued benefits under each Plan (based on those assumptions used to fund such
Plan) did not, as of the most recent valuation date prior to the Closing Date,
which for any such Plan or Multiemployer Plan was not earlier than twelve months
prior to the date as of which this representation is made, exceed the then
current value of the assets of such Plan allocable to such benefits.
(b) No Borrower Group Member has incurred, or, to the best of the
Borrowers' knowledge, is reasonably expected to incur, any material withdrawal
liability to any Multiemployer Plan. No Borrower Group Member has received any
notification that any Multiemployer Plan is in reorganization (as defined in
Section 4241 of ERISA), is insolvent (as defined in Section 4245 of ERISA) or
has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is, to the best of the Borrowers' knowledge, reasonably
expected to be in reorganization, insolvent or to be terminated.
(c) No prohibited transaction (as defined in Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility has occurred
which has subjected or may subject any Borrower Group Member to any material
liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which such
Borrower Group Member has agreed or is required to indemnify any Person against
any such liability. No Borrower Group Member has incurred, or is reasonably
expected to incur, any liability to the PBGC (other than for insurance premiums,
which have been paid when due).
(d) Full payment has been made on or before the due date (including
extensions) thereof of all amounts which any Borrower Group Member is or was
required under the terms of
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any Plan or any Multiemployer Plan to have paid as contributions to such Plan as
of the date hereof.
(e) No Lien imposed under the Code or ERISA on the assets of any Borrower
Group Member exists or is reasonably likely to arise on account of any Plan or
any Multiemployer Plan.
(f) No welfare plan (as defined in Section 3(1) of ERISA) maintained by any
Borrower Group Member provides medical or death benefits with respect to current
or former employees beyond their termination of employment (other than coverage
mandated by law). Each such plan to which Sections 601-609 of ERISA and Section
4980B of the Code apply has been administered in substantial compliance with
such sections.
SECTION 9.13. Use of Loan Proceeds; Margin Regulations.
----------------------------------------
The Borrowers will apply the proceeds of the Loans to refinance existing
indebtedness (including redemption, repurchase or prepayment of the Notes and
the Indenture Notes) and for working capital and general corporate purposes,
including without limitation acquisitions, and to make the Permitted Payments.
No part of the proceeds of the Loans will be used, directly or indirectly, for
the purpose of purchasing or carrying any "margin stock" within the meaning of
Regulations G and U of the Board of Governors of the Federal Reserve System (12
CFR 207, as amended), or for the purpose of purchasing or carrying or trading in
any securities, under such circumstances as to involve a Borrower in a violation
of Regulation X of said Board (12 CFR 224, as amended) or to involve any broker
or dealer in a violation of Regulation T of said Board (12 CFR 220, as amended).
No Debt being reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock within the
meaning of such Regulations G and U or any "margin security" within the meaning
of such Regulation T. As of the Closing Date, such margin stock does not
constitute more than 25% of the value of the consolidated assets of the
Borrowers and their Subsidiaries; and the Borrowers do not have any present
intention that such margin stock will constitute more than 25% of the value of
such assets. None of the transactions contemplated by this Agreement
(including, without limitation, the direct or indirect use of the proceeds of
the Loans) will violate or result in a violation of Section 7 of the Exchange
Act or any regulations issued pursuant thereto, including, without limitation,
said Regulation G, Regulation U, Regulation T and Regulation X.
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc.
--------------------------------------------------
Each Borrower and each of its Restricted Subsidiaries owns, possesses or
has the right to use (without any known conflict with the rights of others) all
permits, franchises, patents, trademarks, service marks, trade names,
copyrights, licenses, permits and governmental or other authorizations or the
like (collectively, "Licenses") which are necessary in any material respect to
the conduct of its businesses as conducted on the date hereof and as proposed to
be conducted. All such necessary Licenses or rights therein purported to be
owned by the Borrowers or any Restricted Subsidiary are so owned free and clear
of any Liens, other than Liens permitted by Sections 8.03(a), (d) and (g). Each
such necessary License is in full force and effect, and no default in the
performance or observance by the Borrowers or any such Subsidiary of its
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obligations thereunder has occurred, the consequences of which default, either
alone or taken together with the consequences of all other such defaults, have
had or could reasonably be expected to have a Material Adverse Effect.
SECTION 9.15. Status Under Certain Statutes; Other Regulations.
------------------------------------------------
Neither Borrower is an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning of the Investment Borrower Act of 1940, as amended. Neither
Borrower is 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," as such terms are defined in the Public Utility Holding
Borrower Act of 1935, as amended. Neither Borrower is a "public utility," as
such term is defined in the Federal Power Act, as amended. Neither Borrower is
subject to regulation under any federal or state law, statute, rule, regulation
or ordinance which limits its ability to incur Debt.
SECTION 9.16. Labor Matters.
-------------
There are no labor disputes between the Borrowers or any of their
Restricted Subsidiaries on the one hand and any of their respective employees or
representatives of such employees on the other hand which in the aggregate have
had or could reasonably be expected to have a Material Adverse Effect, and the
Borrowers and their Restricted Subsidiaries are in compliance in all material
respects with all applicable laws respecting employment and employment
practices, terms and conditions of employment, tax withholding on behalf of
employees and wages and hours, and are not engaged in any unfair labor practice
which, either alone or taken together with all other such practices, have had or
could reasonably be expected to have a Material Adverse Effect.
SECTION 9.17. Full Disclosure.
---------------
This Agreement, the Registration Statement and the other documents,
certificates and instruments delivered to the Administrative Agent and/or the
Lenders by or on behalf of the Borrowers in connection with the transactions
contemplated by this Agreement, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which the same were made (including without limitation, the
respective dates on or as of which such statements were made), not misleading.
There is no fact known to the Borrowers which has had a Material Adverse Effect
since June 30, 1997 or in the future may (so far as the Borrowers can now
reasonably foresee) have a Material Adverse Effect which has not been set forth
or reflected in this Agreement, the Registration Statement or in the other
documents, certificates and instruments referred to herein and delivered to the
Administrative Agent and/or the Lenders by or on behalf of the Borrowers on or
prior to the date hereof in connection with the transactions contemplated by
this Agreement.
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SECTION 9.18. Environmental Matters.
---------------------
(a) The Borrowers and their Restricted Subsidiaries currently hold and at
all times heretofore the Borrowers and their Restricted Subsidiaries held all
Environmental Permits required under all Environmental Laws except to the extent
failure to have any such Environmental Permit, either alone or considered
together with all other such failures, has not had and can not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrowers and their Restricted Subsidiaries currently are, and at
all times heretofore the Borrowers and their Restricted Subsidiaries have been,
in compliance with all terms and conditions of all such Environmental Permits
and all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in all applicable
Environmental Laws except to the extent failure to comply therewith, either
alone or considered together with all other such failures, has not had and can
not reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth in Schedule XI, neither the Borrowers nor any of
-----------
their Restricted Subsidiaries has ever received, and, so far as is known to the
Borrowers, no predecessor in interest of the Borrowers or any such Subsidiary in
respect of any of the Borrower Premises has ever received, from any Governmental
Body or other Person any notice of, and the Borrowers have no knowledge of, any
events, conditions or circumstances that could prevent continued compliance in
all material respects with the Environmental Permits referred to in Section
9.18(b) or any scheduled renewals thereof or any applicable Environmental Laws
currently in effect, or that could give rise to any liability on the part of the
Borrowers or any such Restricted Subsidiary or otherwise form the basis of any
claim, action, demand, request, notice, suit, proceeding, hearing, study or
investigation (collectively, "Environmental Claims") involving the Borrowers or
--------------------
any of their Restricted Subsidiaries, based on or related to (i) a violation of
any applicable Environmental Laws currently in effect or (ii) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport or handling, or the
emission, discharge, release or threatened release into the environment, of any
Hazardous Substance in violation of any applicable Environmental Laws currently
in effect, other than any liability or Environmental Claim referred to in this
Section 9.18(c) which, either alone or considered together with all other such
liabilities and Environmental Claims, has not had and can not reasonably be
expected to have a Material Adverse Effect. Neither the matters set forth in
Schedule XI nor the resolution thereof nor any action required to be taken by
- -----------
the Borrowers in connection therewith have had or, in the Borrowers' good faith
judgment, will have a Material Adverse Effect.
SECTION 9.19. Solvency.
--------
Each Borrower and each Restricted Subsidiary is, and upon giving effect to
the initial borrowings hereunder on the Closing Date will be, a "solvent
institution", as said term is used in Section 1405(c) of the New York Insurance
Law, whose "obligations are not in default as to principal or interest," as said
terms are used in said Section 1405(c).
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ARTICLE X.
EVENTS OF DEFAULT
SECTION 10.01. Events of Default.
-----------------
Each of the following shall be an event of default (each an "Event of
--------
Default") hereunder:
- -------
(a) default shall be made in the due and punctual payment of any
principal of any of the Loans when and as the same shall become due and
payable; or
(b) default shall be made in the due and punctual payment of any
interest on any of the Loans when and as such interest shall become due and
payable, and such default shall have continued for a period of five
Business Days; or
(c) default shall be made in the due performance or observance of any
covenant, provision, agreement or condition contained in Section 8.01(c),
Section 8.03, Section 8.04 or Section 8.05, or a Borrower or a Restricted
Subsidiary shall create, incur, assume or otherwise become liable in
respect of any Debt the incurrence of which is not permitted by Section
8.02(a) or Section 8.02(b); or
(d) default shall be made in the due performance or observance of any
other covenant, provision, agreement or condition contained in this
Agreement (other than any default referred to in the foregoing subdivisions
(a), (b) and (c) of this Section 10.01), and such default shall have
continued for a period of 30 days after the earlier of (x) the date on
which any Responsible Officer of a Borrower first has knowledge of such
default, through notice or otherwise and (y) the giving of notice to the
Borrowers of such default by the Administrative Agent or any of the
Lenders; or
(e) (i) default shall be made in the payment of any amount due,
whether on an interest payment date or on a date fixed for prepayment, at
stated maturity, by acceleration or declaration or otherwise, under or in
respect of any Debt of a Borrower (including, without limitation, Debt
evidenced by any of the Notes and the Indenture Notes, but excluding (x)
Debt arising hereunder or under any of the other Credit Documents and (y)
so long as JPFDI shall hold PYA's Note and the Sara Lee Offset Agreement
shall remain in full force and effect and shall be effective to permit the
offset of principal and interest due under the Sara Lee Note against
principal and interest due under PYA's Note (or to establish JPFDI's
obligation in respect of the indebtedness evidenced by the Sara Lee Note
from and after a prepayment in full of PYA's Note as the remaining
principal balance of the Sara Lee Note after offset against amounts owing
thereon of the principal of and accrued and unpaid interest to the date of
prepayment on the PYA Note), Debt evidenced by the Sara Lee Note) or of any
Restricted Subsidiary which is outstanding in a principal amount of more
than $15,000,000, and such default shall continue beyond the period of
grace, if any, provided with respect thereto; or (ii)
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default shall be made in the due performance or observance of any covenant,
provision, agreement or condition contained in any document evidencing or
providing for the issuance or securing of any such Debt (other than Debt
excluded as aforesaid), if the effect of any such default referred to in
this clause (ii) is to have caused such Debt to become due prior to its
stated maturity or prior to its regularly scheduled dates of payment; or
(f) default shall be made in the due performance or observance of any
financial or negative covenant or agreement contained in the Indenture or
any of the Note Purchase Agreements beyond the period of grace, if any,
provided for such performance or observance in the Indenture or such Note
Purchase Agreement (other than any default arising from or consisting of a
condition or event which (x) also constitutes a default referred to in
Section 10.01(c) or (d) or (y) shall have become an Event of Default under
Section 10.01(e)) and such default (an "Indenture Default") shall have
-----------------
continued for a period of 30 consecutive days without having been cured,
either by a Borrower or by virtue of a waiver granted under or an amendment
or other modification of the provisions of the Indenture or such Note
Purchase Agreement; provided that, in determining whether an Indenture
Default shall have occurred or shall exist, and in determining the period
during which any Indenture Default shall have continued, no effect shall be
given to any waiver in respect of any provision of the Indenture or Note
Purchase Agreements, or any consent to a departure by a Borrower or a
Subsidiary from any such provision or to any amendment or modification of
the terms of the Indenture or Note Purchase Agreements, or to any agreement
entered into following, or in contemplation of, the occurrence or coming
into existence of any condition or event which upon notice or lapse of time
or both would constitute an Indenture Default, if such waiver, consent,
amendment, modification or agreement is given or entered into directly or
indirectly in exchange for (i) monetary or other consideration (other than
the payment by a Borrower or a Subsidiary of (x) waiver, modification or
similar fees to the holders of the Indenture Notes or the Notes not
exceeding, in the case of any such fee payable to any one such holder in
respect of the waivers, consents, amendments, modifications or agreements
given or entered into at any one time, $10,000 and (y) amounts in
reimbursement of the out-of-pocket costs of any of the holders of the
Indenture Notes or the Notes), (ii) any increase in the rate of interest,
premium or fees theretofore payable under the Indenture or Note Purchase
Agreements, or (iii) any decrease in the term to final maturity or the
Weighted Average Life to Maturity of any Debt of a Borrower or a Restricted
Subsidiary under the Indenture or Note Purchase Agreements; or
(g) a Borrower or any Restricted Subsidiary shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part
of its property, (ii) become insolvent or be generally unable to or shall
generally fail or admit in writing its inability to pay its debts as such
debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code
(as now or hereafter in effect), (v) file a petition seeking to take
advantage of any bankruptcy, insolvency, moratorium, reorganization or
other similar law affecting the enforcement of creditors'
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rights generally, (vi) acquiesce in writing to, or fail to controvert in a
timely or appropriate manner, any petition filed against it in an
involuntary case under such Bankruptcy Code, (vii) take any action under
the laws of any jurisdiction (foreign or domestic) analogous to any of the
foregoing, or (viii) take any corporate action in furtherance of any of the
foregoing; or
(h) a proceeding or case shall be commenced in respect of a Borrower
or any Restricted Subsidiary, without its application or consent, in any
court of competent jurisdiction, seeking (i) the liquidation,
reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part
of its assets, or (iii) similar relief in respect of it under any law
providing for the relief of debtors, and such proceeding or case described
in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in
effect, for a period of 45 days, or an order for relief shall be entered in
an involuntary case under the Federal Bankruptcy Code (as now or hereafter
in effect) against a Borrower or any Restricted Subsidiary or action under
the laws of any jurisdiction (foreign or domestic) analogous to any of the
foregoing shall be taken with respect to a Borrower or any Restricted
Subsidiary and shall continue undismissed, or unstayed and in effect, for a
period of 45 days; or
(i) a final judgment or decree for the payment of money shall be
rendered by a court of competent jurisdiction against a Borrower or any
Restricted Subsidiary which, either alone or together with other
outstanding judgments or decrees against a Borrower or any one or more
Restricted Subsidiaries, shall aggregate more than $15,000,000, and such
Borrower or such Subsidiary, as the case may be, shall not discharge the
same or provide for its discharge in accordance with its terms within 60
days from the date of entry thereof or within such longer period
(including, without limitation, any period during which such Borrower or
such Subsidiary shall be contesting a denial of coverage of its liability
in respect of such judgment by a reputable insurance carrier) during which
execution of such judgment shall have been stayed; or
(j) any representation or warranty made by the Borrowers or a
Restricted Subsidiary in this Agreement or the Guaranty Agreement or in any
certificate or other instrument delivered hereunder or thereunder or
pursuant hereto or thereto or in connection with any provision hereof shall
prove to have been false or incorrect or breached in any material respect
on the date as of which made; or
(k) (i) any Borrower Group Member shall fail to pay when due any
amount which it shall have become liable to pay to the PBGC or to a Plan or
Multiemployer Plan under Title IV of ERISA; (ii) any Borrower Group Member
shall withdraw from a Multiple Employer Plan during a plan year in which it
is a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or shall be treated as having so withdrawn under Section 4062(e) of
ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of
intent to terminate any Plan or Multiemployer Plan shall be filed under
Title IV of ERISA by any Borrower Group Member, any plan administrator
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or any combination of the foregoing; (iv) the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Plan or Multiemployer Plan; (v) any Borrower
Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan
shall have an Unfunded Current Liability; or (vii) any prohibited
transaction (as defined in Section 406 of ERISA or Section 4975 of the
Code) or breach of fiduciary responsibility shall occur which may subject
any Borrower Group Member to any liability under Section 406, 409, 502(i)
or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which such Borrower Group Member has agreed or
is required to indemnify any Person against any such liability; and there
shall result from any such event or events referred to in the foregoing
subdivisions (k)(i) through (k)(vii) a material risk of incurring a
liability in excess of $5,000,000; or
(l) a Change of Control shall occur; or
(m) the Guaranty given by any Restricted Subsidiary pursuant to the
Guaranty Agreement shall cease to be in full force and effect other than by
reason of the release of such Restricted Subsidiary pursuant to Section
8.18 from its obligations under the Guaranty Agreement, or any Restricted
Subsidiary or any Person acting by or on behalf of such Restricted
Subsidiary shall deny or disaffirm such Restricted Subsidiary's obligations
under the Guaranty Agreement; or default shall be made by any Restricted
Subsidiary in the performance or observance of any covenant, provision,
agreement or condition contained in the Guaranty Agreement, and such
default (i) shall have continued for a period of 30 days after the earlier
of (x) the date on which any Responsible Officer of a Borrower first has
knowledge of such default, through notice or otherwise, and (y) the giving
of notice to the Borrowers of such default by the Administrative Agent or
any of the Lenders, and (ii) either alone or considered together with all
such defaults, shall have or shall be reasonably likely to have a Material
Adverse Effect; or
(n) the occurrence of an Event of Default under the Five Year Credit
Agreement.
SECTION 10.02. Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Lenders or cured
to the satisfaction of the Lenders (pursuant to the voting procedures in Section
12.07), the Administrative Agent, upon the request of the Required Lenders,
shall, by written notice to the Borrowers, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
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(ii) Acceleration of Obligations. Declare the unpaid principal of
------------
and any accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Borrowers to
any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers.
(iii) Enforcement of Rights. Enforce (A) any and all rights and
---------------------
interests created and existing under the Credit Documents and (B) all
rights of set-off to the extent available under, and to the extent
exercised in accordance with, applicable law.
Notwithstanding the foregoing, if an Event of Default specified in Section
10.01(g) or (h) shall occur, then the Commitments shall automatically terminate
and all Loans, all accrued interest in respect thereof, all accrued and unpaid
Fees and other indebtedness or obligations owing to the Lenders hereunder
automatically shall immediately become due and payable without the giving of any
notice or other action by the Administrative Agent.
ARTICLE XI.
ADMINISTRATIVE AGENT
SECTION 11.01. Appointment and Authorization.
-----------------------------
Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers under this
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. The provisions of this Article XI are solely for
the benefit of the Administrative Agent and the Lenders, and the Borrowers shall
not have any rights as a third party beneficiary of any of the provisions
hereof.
SECTION 11.02. General Immunity.
----------------
In performing its duties to the Lenders as Administrative Agent hereunder,
the Administrative Agent will take the same care as it takes in connection with
credit transactions in which it alone is interested. However, neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Lenders for any action taken or omitted to be taken by it
or them hereunder or in connection herewith except for its own or their own
gross negligence or willful misconduct.
SECTION 11.03. Consultation with Professionals.
-------------------------------
The Administrative Agent may consult with legal counsel and other
professionals selected by it and shall not be liable to the Lenders for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel and professionals in their respective areas of expertise.
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SECTION 11.04. Documents.
---------
The Administrative Agent shall not be under any duty to examine or pass
upon the effectiveness, genuineness or validity of this Agreement or any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or in connection herewith, and the Administrative Agent shall be entitled
to assume that the same are valid, effective and genuine and what they purport
to be.
SECTION 11.05. Rights as a Lender.
------------------
With respect to their respective Commitments, the Administrative Agent
shall have the same rights and powers hereunder as any Lender and may exercise
the same as though it were not the Administrative Agent, as the case may be, and
the terms "Lender" and "Lenders" shall, as applicable and unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to and
generally engage in any kind of banking or trust business with the Borrowers as
if it were not the Administrative Agent as the case may be.
SECTION 11.06. Responsibility of Administrative Agent.
--------------------------------------
It is expressly understood and agreed that the obligations of the
Administrative Agent hereunder to the Lenders are only those expressly set forth
in this Agreement and the other Credit Documents and that the Administrative
Agent shall be entitled to assume that no Default or Event of Default has
occurred and is continuing unless the Administrative Agent has actual knowledge
of such fact or has received notice from a Lender or a Borrower that such Lender
or such Borrower consider that a Default or an Event of Default has occurred and
is continuing and specifying the nature thereof.
SECTION 11.07. Action by Administrative Agent.
------------------------------
So long as the Administrative Agent shall be entitled, pursuant to Section
11.06, to assume that no Default or Event of Default has occurred and is
continuing, the Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights that may be
vested in it by, or with respect to taking or refraining from taking any action
or actions that it may be able to take under or in respect of, this Agreement or
any of the other Credit Documents. The Administrative Agent shall incur no
liability to the Lenders under or in respect of this Agreement or any of the
other Credit Documents by acting upon any notice, consent, certificate, warranty
or other paper or instrument reasonably believed by it to be genuine or
authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable under the
circumstances.
Without limiting the generality of the foregoing provisions of this Section
11.07, the Administrative Agent shall be conclusively entitled to assume that
the conditions precedent set
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forth in Section 5.02 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied.
SECTION 11.08. Notices of Event of Default, Etc.
---------------------------------
In the event that the Administrative Agent shall have acquired actual
knowledge of any Default or Event of Default, the Administrative Agent shall
promptly give notice thereof to the Lenders, and the Administrative Agent may
take such action and assert such rights with respect to taking or refraining
from taking any action or actions that it may be able to take under or in
respect of, this Agreement or any of the other Credit Documents, as it deems to
be advisable in its discretion for the protection of the interests of the
Lenders, including, without limitation, the exercise of rights and remedies
under Article X and under any of the other Credit Documents; provided that, as
--------
between the Administrative Agent and the Lenders only, after the occurrence of
an Event of Default, the Administrative Agent (i) shall not exercise any rights
or remedies granted to it hereunder, under any other of the Credit Documents, or
otherwise available to it at law or in equity, without the approval of the
Required Lenders (or all of the Lenders, if otherwise required by this
Agreement) and (ii) upon the direction of the Required Lenders (or all of the
Lenders, if otherwise required by this Agreement), shall exercise such rights
and remedies as so directed; provided further that, notwithstanding the above,
the Administrative Agent shall not be required to take any action which would
expose the Administrative Agent to personal liability or which is contrary to
law unless it shall be indemnified to its satisfaction against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Administrative Agent by
reason of taking or continuing to take any such action.
SECTION 11.09. Indemnification of Administrative Agent.
---------------------------------------
The Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers), ratably according to their respective Commitment
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any of the other Credit Documents or any action taken or omitted by
the Administrative Agent under this Agreement or any of the other Credit
Documents; provided that, no Lender shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation to the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable counsel fees)
incurred by the Administrative Agent in connection with the modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or any of the other Credit Documents, to the extent not
reimbursed by the Borrowers.
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<PAGE>
SECTION 11.10. No Representations.
------------------
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any of its directors, employees, agents, attorneys-
in-fact or affiliates hereafter taken, including any review of the affairs of
the Borrowers, shall be deemed to constitute any representation or warranty by
the Administrative Agent to such Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigations into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make Loans hereunder and to enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. The
Administrative Agent agrees that (i) it shall promptly deliver to each Lender
copies of all notices, reports and other documents expressly required to be
furnished to the Administrative Agent by the Borrowers or any Restricted
Subsidiary pursuant to any of the Credit Documents and (ii) upon the reasonable
request of any Lender, it shall promptly deliver to such Lender such other
information as the Administrative Agent shall receive regarding the Borrowers or
any Restricted Subsidiary or the performance of the respective obligations of
the Borrowers and the Restricted Subsidiaries under the Credit Documents;
otherwise, the Administrative Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrowers which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 11.11. Resignation; Removal.
--------------------
Subject to the appointment and acceptance of a successor as provided below,
the acting Administrative Agent may resign by notifying the Lenders and the
Borrowers not less than 30 days prior to the effective date of such resignation
or may be removed by the Borrowers in their sole discretion at any time by
notifying the Administrative Agent and the other Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor acceptable to the Borrowers, which successor shall be a Lender that is
a bank having a combined capital and surplus of at least $500,000,000 or an
affiliate of any such bank. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the delivery of notice of resignation by or removal of the existing
Administrative Agent pursuant to the first sentence of this Section 11.11, then
the existing Administrative Agent (in the case of resignation by the existing
Administrative Agent) or the Borrowers (in the case of removal by the Borrowers
of the existing Administrative Agent) may, on behalf of the Lenders, appoint a
successor satisfying the requirements set forth above. Upon
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<PAGE>
the acceptance of any appointment hereunder by a successor Lender, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative Agent, and the
retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder. After an Administrative Agent's resignation or removal
hereunder, the provisions of this Article XI and Section 12.06 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Administrative Agent.
SECTION 11.12. Syndication Agent, Documentation Agent and Co-Arrangers.
-------------------------------------------------------
The Syndication Agent, Documentation Agent and Co-Arrangers, in their
capacities as such, shall have no rights, powers, duties or obligations under
this Agreement or any of the other Credit Documents.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.01. Notices.
-------
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sending party, as follows:
(a) if to the Borrowers, 9830 Patuxent Woods Drive, Columbia, Maryland
21046, Attention of Vice President-Finance and Controller (Facsimile No. 410-
309-6296);
(b) if to the Administrative Agent to it at:
(i) with respect to operational matters, 101 North Tryon Street,
Independence Center, 15th Floor, NC1-001-15-02, Charlotte, North Carolina
28255, Attention of Kathy Mumpower, Agency Services (Facsimile No. 704-386-
9923); and
(ii) in all other cases, 6610 Rockledge Drive, 6th Floor, MD2-600-06-
05, Bethesda, Maryland 20817-1876, Attention of Michael Heredia, Vice
President (Facsimile No. 301-571-0719);
(c) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule I or in the assignment agreement pursuant to which such Lender became a
- ----------
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five (5) Business Days
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<PAGE>
after dispatch by certified or registered mail if mailed, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 12.01 or at such other address or telex, telecopy or other number as
shall be designated by such party in a notice to each other party complying with
the terms of this Section 12.01.
SECTION 12.02. Survival of Agreement.
---------------------
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making of Loans by
the Lenders hereunder regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as any Loans
or any amounts are outstanding under this Agreement or any of the other Credit
Documents and so long as the Commitments have not been terminated.
SECTION 12.03. Binding Effect.
--------------
This Agreement shall become effective when it shall have been executed by
the Borrowers and the Administrative Agent, and when the Administrative Agent
shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender, and when the other conditions set
out in Section 5.01 shall have been satisfied or waived, and thereafter this
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and each Lender and their respective successors and
assigns.
SECTION 12.04. Benefit of Agreement.
--------------------
(a) Generally. This Agreement shall be binding upon and inure to the
---------
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that the Borrowers may not assign or transfer any of
--------
their interests without prior written consent of the Lenders; provided further
-------- -------
that the rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth in this
Section 12.04, provided, however, that nothing herein shall prevent or prohibit
-------- -------
any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank, or
(ii) granting assignments or participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any affiliate of such
Lender which is at least 50% owned by such Lender or its parent company. To the
extent required in connection with a pledge of Loans by any Lender to a Federal
Reserve Bank, the Borrowers agree that, upon request of any such Lender, they
will promptly provide such Lender a promissory note evidencing the repayment
obligations of the Borrowers with respect to the principal of and interest on
the Loans of such Lender arising under Section 2.01, such promissory note to be
in a form reasonably satisfactory to the Borrowers and the applicable Lender.
(b) Assignments by Lenders. Each Lender may assign all or a portion of
----------------------
its rights and obligations hereunder pursuant to an assignment agreement
substantially in the form of Schedule XIV to one or more Eligible Assignees
------------
with, in the case of an assignment other than to
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<PAGE>
a Lender or an affiliate of a Lender the prior written consent of the Borrowers
so long as no Event of Default then exists, which consent will not be
unreasonably withheld or delayed, provided that any such assignment shall be in
--------
a minimum aggregate amount of $5,000,000 of the Commitments and in integral
multiples of $1,000,000 above such amount, and that each such assignment shall
be of a constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement. Any assignment hereunder shall be
effective upon delivery to the Administrative Agent of written notice of the
assignment together with a transfer fee of $2,500 payable to the Administrative
Agent for its own account. The assigning Lender will give prompt notice to the
Administrative Agent and the Borrowers of any such assignment. Upon the
effectiveness of any such assignment (and after notice to the Borrowers as
provided herein), the assignee shall become a "Lender" for all purposes of this
Agreement and the other Credit Documents and, to the extent of such assignment,
the assigning Lender shall be relieved of its obligations hereunder to the
extent of the Loans, Participation Interests and Commitments being assigned. By
executing and delivering an assignment agreement in accordance with this Section
12.04(b), the assigning Lender thereunder and the assignee thereunder shall be
deemed to confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse
claim; (ii) except as set forth in clause (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto or the financial condition of the Borrowers or any Restricted
Subsidiary or the performance or observance by the Borrowers or any Restricted
Subsidiary of any of their respective obligations under this Agreement, any of
the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such assignment agreement; (iv) such
assignee confirms that it has received a copy of this Agreement, the other
Credit Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and without reliance
upon the Administrative Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Credit Documents; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under this Agreement or any other Credit Document as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement and the other Credit Documents are required
to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or assign
--------------
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
--------
purposes under this Agreement and the other Credit
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<PAGE>
Documents (such selling Lender's obligations under this Agreement remaining
unchanged) and the participant shall not constitute a Lender hereunder, (ii) no
such participant shall have, or be granted, rights to approve any amendment or
waiver relating to this Agreement or any of the other Credit Documents except
with respect to any amendment or waiver referenced in Section 12.07 (i), (ii) or
(v), (iii) sub-participations by the participant (except to an affiliate, parent
company or affiliate of a parent company of the participant) shall be prohibited
and (iv) any such participations shall be in an integral multiple of $5,000,000
of the Commitments. In the case of any such participation, the participant shall
not have any rights under this Agreement or under any of the other Credit
Documents (the participant's rights against the selling Lender in respect of
such participation to be those set forth in the participation agreement with
such Lender creating such participation) and all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not sold such
participation, provided, however, that such participant shall be entitled to
-------- -------
receive additional amounts under Sections 3.05 and 3.07 on the same basis as if
it were a Lender, except that all claims and petitions for payment and all
payments made pursuant to such Sections shall be made through such selling
Lender and except that a participant shall not be entitled to receive pursuant
to such provisions an amount larger than its share of the amount of which the
selling Lender would have been entitled.
SECTION 12.05. No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would otherwise have. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the Lenders to
any other or further action in any circumstances without notice or demand.
SECTION 12.06. Payment of Expenses, Etc.
-------------------------
The Borrowers agree to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Agreement and the
other Credit Documents and the documents and instruments referred to therein and
any amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrowers under this Agreement and (B) of the Administrative Agent and the
Lenders in connection with enforcement of the Credit Documents and the documents
and instruments referred to therein and/or collection of the obligations of any
of the Borrowers and the Restricted Subsidiaries pursuant to the Credit
Documents (including, without limitation, in connection with any such
enforcement or collection, the reasonable fees and disbursements of counsel for
the
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Administrative Agent and each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iii) indemnify each Lender, its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or reasonable
out-of-pocket expenses incurred by any of them as a result of, or arising out
of, or in any way related to, or by reason of, any investigation, litigation or
other proceeding (whether or not any Lender is a party thereto) related to the
entering into and/or performance of any Credit Document, to the use of proceeds
of any Loans hereunder, to the consummation of any other transactions
contemplated in any Credit Document or to the Merger Transaction, including,
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of gross negligence or willful misconduct on the part
of the Person to be indemnified).
SECTION 12.07. Amendments, Waivers and Consents.
--------------------------------
Neither this Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
signed by the Required Lenders, provided that no such amendment, change, waiver,
--------
discharge or termination shall, without the consent of each Lender affected
thereby, (i) extend the scheduled maturities (including the final maturity and
any mandatory prepayments, other than in connection with an Asset Disposition
pursuant to Section 8.07(f) which shall be subject to the agreement of the
Required Lenders as set forth in Section 3.02(b)(ii) hereof) of any Revolving
Loan or any portion thereof, or reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any post-
default increase in interest rates) thereon or fees hereunder or reduce the
principal amount thereof, or increase the Commitment of any Lender over the
amount thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default shall not constitute a change in the terms of any
Commitment of any Lender), (ii) except as otherwise permitted by Section 8.18,
release Guarantors from their obligations under the Guaranty Agreement to the
extent any such release would constitute a substantial portion of the benefits
provided by the Guarantors taken as a whole, (iii) amend, modify or waive any
provision of this Section 12.07 or Section 3.05, 3.07, 4.02, 4.03, 4.04, 4.05,
10.01(a) or (b), (iv) reduce any percentage specified in, or otherwise modify,
the definition of "Required Lenders" or (v) consent to the assignment or
transfer by the Borrowers of any of their respective rights and obligations
under this Agreement and the other Credit Documents. No provision of Article XI
may be amended without the consent of the Administrative Agent.
SECTION 12.08. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same
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<PAGE>
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
SECTION 12.09. Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 12.10. Survival of Indemnification.
---------------------------
All indemnities set forth herein, including, without limitation, in Section
3.05, 3.07, 4.05, 11.09 or 12.06 shall survive the execution and delivery of
this Agreement, and the making of the Loans, the repayment of the Loans and
other obligations and the termination of the Commitments hereunder.
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue; Waiver of
-----------------------------------------------------------
Jury Trial.
- -----------
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND ALL AMENDMENTS,
SUPPLEMENTS, MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO OR THERETO
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTIONS 5-
1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) THE BORROWERS HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND
IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER CREDIT DOCUMENTS MAY BE LITIGATED IN SUCH COURTS, AND THE
BORROWERS WAIVE ANY OBJECTION WHICH THEY MAY HAVE BASED ON IMPROPER VENUE OR
FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND
- --------------------
WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENT THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED
IN SECTION 12.01(a) AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL
HAVE BEEN MAILED TO THE BORROWERS IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN
THIS SECTION 12.11 SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE
LENDERS TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
ANY ACTION OR PROCEEDING IN THE COURTS OF ANY JURISDICTION AGAINST THE BORROWERS
OR TO ENFORCE A JUDGMENT
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<PAGE>
OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. THE BORROWERS ACKNOWLEDGE THAT
THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE FOR
A BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 12.12. Severability.
------------
If any provision of this Agreement is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
SECTION 12.13. Term.
----
The term of this Agreement shall be until no Loans or any other amounts
payable hereunder shall remain outstanding and until all of the Commitments
hereunder shall have terminated.
SECTION 12.14. Entirety.
--------
This Agreement and the other Credit Documents represent the entire
agreement of the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, including any commitment letters or
correspondence, relating to this Agreement or any of the other Credit Documents
or the transactions contemplated herein and therein.
[Remainder of page intentionally left blank.]
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<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this 364-Day
Credit Agreement to be executed by its duly authorized officers as of the day
and year first above written.
BORROWERS: JP FOODSERVICE DISTRIBUTORS, INC.
By /s/ George T. Megas
----------------------------------
Name: George T. Megas
Title: Vice-President - Finance
RYKOFF-SEXTON, INC.
By /s/ Lewis Hay, III
----------------------------------
Name: Lewis Hay, III
Title: Senior Vice President
<PAGE>
LENDERS: NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By /s/ Michael R. Heredia
----------------------------------
Name: Michael R. Heredia
Title: Senior Vice President
NATIONSBANC MONTGOMERY SECURITIES, INC.,
as Co-Arranger
By /s/ John N. Gregg, Jr.
----------------------------------
Name: John N. Gregg, Jr.
Title: Director
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By /s/ Karen M. Sharf
----------------------------------
Name: Karen M. Sharf
Title: Vice President
CHASE SECURITIES, INC.,
as Co-Arranger
By [SIGNATURE APPEARS HERE]
----------------------------------
Name:
Title: Vice President
<PAGE>
BANK OF AMERICA, NT & SA,
as Documentation Agent and a Lender
By /s/ G. Burton Queen
----------------------------------
Name: G. Burton Queen
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Amy L. Robbins
----------------------------------
Name: Amy L. Robbins
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By [SIGNATURE APPEARS HERE]
----------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ Craig Welch
----------------------------------
Name: Craig Welch
Title: First Vice President
By /s/ Cheryl Solomento
----------------------------------
Name: Cheryl Solomento
Title: Vice President
<PAGE>
CRESTAR BANK
By /s/ Paul R. Boliveau
----------------------------------
Name: Paul R. Boliveau
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Ronald J. Bucci
----------------------------------
Name: Ronald J. Bucci
Title: Vice President
THE FUJI BANK LIMITED, NEW YORK BRANCH
By /s/ Raymond Ventura
----------------------------------
Name: Raymond Ventura
Title: Vice President & Manager
WACHOVIA BANK, N.A.
By /s/ Fitzhugh Wickham
----------------------------------
Name: Fitzhugh Wickham
Title: Vice President
<PAGE>
BANKERS TRUST COMPANY
By /s/ Robert R. Telesca
----------------------------------
Name: Robert R. Telesca
Title: Assistant Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION - CHICAGO BRANCH
By /s/ Nobuo Tominaga
----------------------------------
Name: Nobuo Tominaga
Title: Chief Manager
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ J A Don
----------------------------------
Name: J A Don
Title: Vice President & Manager
BANQUE NATIONALE DE PARIS
By /s/ Richard L. Sted
----------------------------------
Name: Richard L. Sted
Title: Senior Vice President
By /s/ Thomas George
----------------------------------
Name: Thomas George
Title: Vice President
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ David McCann
----------------------------------
Name: David McCann
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ Susan Elliott Benninghoff
----------------------------------
Name: Susan Elliott Benninghoff
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Hiroshi Kitada
----------------------------------
Name: Hiroshi Kitada
Title: Deputy General Manager
MERITA BANK LTD.
By /s/ Clifford Abramsky
----------------------------------
Name: Clifford Abramsky
Title: Vice President
By /s/ Frank Maffei
----------------------------------
Name: Frank Maffei
Title: Vice President
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED
By /s/ Margaret Holloway
----------------------------------
Name: Margaret Holloway
Title: Vice President & Manager
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ Angelo J. Balestrieri
----------------------------------
Name: Angelo J. Balestrieri
Title: Vice President
By /s/ W. Pieter C. Kodde
----------------------------------
Name: W. Pieter C. Kodde
Title: Vice President
RIGGS BANK, N.A.
By /s/ Jeffrey P. White
----------------------------------
Name: Jeffrey P. White
Title: Vice President
THE SANWA BANK, LIMITED
By /s/ Christian Kambour
----------------------------------
Name: Christian Kambour
Title: Vice President
<PAGE>
SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By /s/ Suraj P. Bhatia
----------------------------------
Name: Suraj P. Bhatia
Title: Senior Vice President
THE TOYO TRUST & BANKING CO., LTD.
By /s/ Takashi Mikumo
----------------------------------
Name: Takashi Mikumo
Title:
U.S. BANK NATIONAL ASSOCIATION
By [SIGNATURE APPEARS HERE]
----------------------------------
Name:
Title: Vice President
<PAGE>
SCHEDULE I
Lenders, Lender Addresses and Commitment Percentages
----------------------------------------------------
<TABLE>
<CAPTION>
Name and Address of Lender Revolving Commitment Commitment Percentage
-------------------------- -------------------- ----------------------
<S> <C> <C>
NationsBank, N.A. $13,333,333.33 6.6667%
Corporate Finance Group
6610 Rockledge Drive, 6th Floor
MD2-600-06-13
Bethesda, Maryland 20817-1876
Attn: Michael R. Heredia
Ph: (301) 571-0724
Fx: (301) 571-0719
Chase Manhattan Bank $13,333,333.33 6.6667%
270 Park Avenue, 47th Floor
New York, New York 10017
Attn: Karen Scharf
Ph: (212) 270-5659
Fx: (212) 270-5120
Bank of America NT & SA $12,000,000.00 6.0000%
231 S. LaSalle Street, 9th Floor
Chicago, Illinois 60697
Attn: W. Thomas Barnett
Ph: (312) 828-3105
Fx: (312) 967-1276
</TABLE>
Schedule I Page 1
<PAGE>
<TABLE>
<S> <C> <C>
The First National Bank of Chicago $10,666,666.67 5.3333%
153 West 51st Street
New York, New York 10019
Attn: Amy Robbins
Ph: (212) 373-1023
Fx: (212) 373-1180
with a copy to:
The First National Bank of Chicago
1 First National Plaza
Chicago, Illinois 60670
Attn: Ann Kalaska
Ph: (312) 732-1028
Fx: (312) 732-3596
PNC Bank, National Association $10,666,666.67 5.3333%
1600 Market Street
M/S: F2-F070-21-5
Philadelphia, Pennsylvania 19103
Attn: Gary Tyrrell
Ph: (215) 585-5934
Fx: (215) 585-5972
Credit Agricole Indosuez $ 9,333,333.33 4.6667%
520 Madison Avenue
New York, New York 10022
Attn: John McCloskey
Ph: (212) 418-2217
Fx: (212) 418-2228
</TABLE>
Schedule I - Page 2
<PAGE>
<TABLE>
<S> <C> <C>
Crestar Bank $9,333,333.33 4.6667%
120 East Baltimore Street, 25th Floor
Baltimore, Maryland 21203
Attn: Paul R. Beliveau
Ph: (410) 986-1662
Fx: (410) 986-1670
First Union National Bank $9,333,333.33 4.6667%
1 East Baltimore Street, 2nd Floor
Baltimore, Maryland 21202
Attn: Ronald Bucci
Ph: (410) 244-3564
Fx: (410) 539-0136
The Fuji Bank, Limited, New York Branch $9,333,333.33 4.6667%
Two World Trade Center
79th Floor
New York, New York 10048
Attn: Irene Shen
Ph: (212) 898-2569
Fx: (212) 321-9407
Wachovia Bank, N.A. $9,333,333.33 4.6667%
191 Peachtree Street, N.E., GA307
Atlanta, Georgia 30303
Attn: Fitzhugh L. Wickham, III
Ph: (404) 332-1013
Fx: (404) 332-6898
</TABLE>
Schedule I - Page 3
<PAGE>
<TABLE>
<S> <C> <C>
Bankers Trust Company $7,666,666.67 3.8333%
233 S. Wacker Drive
Suite 8400
Chicago, Illinois 60606
Attn: Christina Minnis
Ph: (312) 993-8011
Fx: (312) 993-8218
with a copy to:
Bankers Trust Company
130 Liberty Street, 31st Floor
New York, New York 10048
Attn: Robert Blank
Ph: (212) 250-4863
Fx: (212) 250-0734
The Mitsubishi Trust and Banking $7,666,666.67 3.8333%
Corporation - Chicago Branch
311 S. Wacker Drive, Suite 6300
Chicago, Illinois 60606
Attn: Vicki Kamm DeMar
Ph: (312) 408-6014
Fx: (312) 663-0863
The Bank of Tokyo - Mitsubishi Trust $6,000,000.00 3.0000%
Company
2000 K Street, NW
Suite 701
Washington, DC 20006
Attn: J. Andrew Don
Ph: (202) 463-0175
Fx: (202) 493-3416
</TABLE>
Schedule I - Page 4
<PAGE>
<TABLE>
<S> <C> <C>
Banque Nationale de Paris $6,000,000.00 3.0000%
499 Park Avenue, 9th Floor
New York, New York 10022
Attn: Thomas George
Ph: (212) 415-9718
Fx: (212) 415-9606
The Dai-Ichi Kangyo Bank, Ltd. $6,000,000.00 3.0000%
One World Trade Center, Suite 4911
New York, New York 10048
Attn: Doron Sabag
Ph: (212) 488-0549
Fx: (212) 524-0579 or (212) 912-1879
The First National Bank of Maryland $6,000,000.00 3.0000%
25 South Charles Street
Mail Code 101-744
Baltimore, Maryland 21201
Attn: Susan Benninghoff
Ph: (410) 244-4898
Fx: (410) 244-4294
LTCB New York Branch $6,000,000.00 3.0000%
165 Broadway, 49th Floor
New York, New York 10006
Attn: Maoyoshi Kasuga
Ph: (212) 335-4607
Fx: (212) 608-2371
Merita Bank Ltd. $6,000,000.00 3.0000%
437 Madison Avenue, 21st Floor
New York, New York 10022
Attn: Clifford Abramsky
Ph: (212) 318-9564
Fx: (212) 318-9318
</TABLE>
Schedule I - Page 5
<PAGE>
<TABLE>
<S> <C> <C>
The Mitsui Trust and Banking Company Limited $6,000,000.00 3.0000%
New York Branch
1251 Avenue of the Americas, 39th Floor
New York, New York 10020
Attn: Paul Verdi
Ph: (212) 790-5470
Fx: (212) 790-5435
Cooperatieve Central Raiffeisen-Boerenleenbank, $6,000,000.00 3.0000%
B.A., "Rabobank Nederland", New York Branch
245 Park Avenue
New York, New York 10167
Attn: Joana M. Socowski
Ph: (212) 916-7801
Fx: (212) 916-7863
Riggs Bank, NationsBank, N.A. $6,000,000.00 3.0000%
808 17th Street, N.W., 10th Floor
Washington, DC 20006
Attn: Jeff White
Ph: (202) 835-4504
Fx: (202) 835-5977
The Sanwa Bank, Limited $6,000,000.00 3.0000%
55 E. 52nd Street
New York, New York 10055
Attn: Christian Kambour
Ph: (212) 339-6232
Fx: (212) 754-1304
</TABLE>
Schedule I - Page 6
<PAGE>
<TABLE>
<S> <C> <C>
Sumitomo Trust & Banking Co., Ltd., $ 6,000,000.00 3.0000%
New York Branch
527 Madison Avenue
New York, New York 10022
Attn: Betsy Quirk
Ph: (212) 326-0553
Fx: (212) 418-4848
The Toyo Trust & Banking Co., Ltd. $ 6,000,000.00 3.0000%
666 5th Avenue, 33rd Floor
New York, New York 10103
Attn: Cuthbert Hamilton
Ph: (212) 307-3408
Fx: (212) 307-3498
U.S. Bank National Association $ 6,000,000.00 3.0000%
601 2nd Avenue South
MPFP0702
Minneapolis, Minnesota 55402-4302
Attn: Christopher H. Patton
Ph: (612) 973-0555
Fx: (612) 973-0825
Bank Hapoalim B.M. - -
1515 Market Street, Suite 200
Philadelphia, Pennsylvania 19102
Attn: Ellen Frank
Ph: (215) 665-2251
Fx: (215) 665-2217
------------------- -------------
$200,000,000.00 100.0000%
</TABLE>
Schedule I - Page 7
<PAGE>
SCHEDULE II
Schedule Intentionally Left Blank
Schedule III - Page 1
<PAGE>
SCHEDULE III
Form of Guarantor Joinder Agreement
-----------------------------------
THIS GUARANTOR JOINDER AGREEMENT (the "Agreement"), dated as of
---------
_____________, 19__, is by and between _____________________, a
___________________ (the "Subsidiary"), and NATIONSBANK, N.A., in its capacity
----------
as Administrative Agent under that certain 364-Day Credit Agreement, dated as of
December 23, 1997 (as the same may be modified or amended from time to time, the
"Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. All of the defined
terms in the Guaranty Agreement (as defined in the Credit Agreement) are
incorporated herein by reference.
The Borrowers are required by Section 8.18 of the Credit Agreement to cause
the Subsidiary to execute this Guarantor Joinder Agreement.
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Guaranty Agreement and a "Guarantor" for all purposes of the Guaranty Agreement,
and shall have all of the obligations of a Guarantor thereunder as if it had
executed the Guaranty Agreement. The Subsidiary hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Guaranty Agreement, including without limitation all of the
undertakings and waivers set forth therein. Without limiting the generality of
the foregoing terms of this paragraph 1, the Subsidiary, subject to the
limitations set forth in Section 1 of the Guaranty Agreement, hereby jointly and
severally, together with the other Guarantors, guarantees to the Administrative
Agent and the Lenders, as provided in such Section 1 of the Guaranty Agreement,
the prompt payment when due, by acceleration or otherwise, of the Borrowers'
Obligations.
[2. If the Subsidiary is not incorporated or organized under the laws of
any State of the United States or the District of Columbia, then the Subsidiary
hereby agrees as follows:
(i)(A) Without limiting the generality of Sections 19(a) and (b) of
the Guaranty Agreement, the Subsidiary agrees that any controversy or claim
with respect to it arising out of or relating to the Guaranty Agreement
may, at the option of the Administrative Agent and the Lenders, be settled
immediately by submitting the same to binding arbitration in New York City
(or such other place as the parties may agree) in accordance with the
Commercial Arbitration Rules then obtaining of the American Arbitration
Association. Upon the request and submission of any controversy or claim
for arbitration
Schedule III - Page 2
<PAGE>
under the Guaranty Agreement, the Administrative Agent shall give the
Subsidiary not less than 45 days written notice of the request for
arbitration, the nature of the controversy or claim, and the time and place
set for arbitration. The Subsidiary agrees that such notice is reasonable
to enable it sufficient time to prepare and present its case before the
arbitration panel. Judgment on the award rendered by the arbitration panel
may be entered in any court in which any action could have been brought or
maintained pursuant to subparagraph (ii) below, including without
limitation any court of the State of New York or any Federal court sitting
in the State of New York. The expenses of arbitration shall be paid by the
Subsidiary.
(B) The provisions of subparagraph (A) above are intended to comply
with the requirements of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "Convention"). To the extent that any
provisions of such subparagraph (A) are not consistent with or fail to
conform to the requirements set out in the Convention, such subparagraph
(A) shall be deemed amended to conform to the requirements of the
Convention.
(C) The Subsidiary hereby specifically consents and submits to the
jurisdiction of the courts of the State of New York and courts of the
United States located in the State of New York for purposes of entry of a
judgment or arbitration award entered by the arbitration panel.
(D) The Subsidiary hereby irrevocably appoints ________________, with
an address on the date hereof at __________________________________ (the
"New York Process Administrative Agent"), as process agent in its name,
place and stead to receive and forward service of any and all writs,
summonses and other legal process in any suit, action or proceeding brought
in the State of New York, agrees that such service in any such suit, action
or proceeding may be made upon the New York Process Administrative Agent
and agrees to take all such action as may be necessary to continue said
appointment in full force and effect or to appoint another agent so that
the Subsidiary will at all times have an agent in the State of New York for
service of process for the above purposes.
(ii) The guarantee of the Subsidiary pursuant to the Guaranty
Agreement is (in part) an international transaction in which payment of
dollars in Charlotte, North Carolina, is of the essence, and dollars shall
be the currency of account in all events. The payment obligation of the
Subsidiary shall not be discharged by an amount paid in another currency or
in another place, whether pursuant to a judgment or otherwise, to the
extent that the amount so paid on prompt conversion to dollars and transfer
to Charlotte, North Carolina, under normal banking procedures does not
yield the amount of dollars in Charlotte, North Carolina due hereunder. In
the event that any payment by the Subsidiary, whether pursuant to a
judgment or otherwise, upon conversion and transfer does not result in
payment of such amount of dollars in Charlotte, North Carolina, the
Administrative Agent and the Lenders shall have a separate cause of action
against the
Schedule III - Page 3
<PAGE>
Subsidiary for the additional amount necessary to yield the amount due and
owing to the Administrative Agent and the Lenders.]/1/
3. This Agreement may be executed in two or more counterparts and by the
different parties hereto on separate counterparts, each constituting an
original, but all together constituting one and the same instrument.
IN WITNESS WHEREOF, the Subsidiary has caused this Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[SUBSIDIARY]
By
---------------------------------
Title
------------------------------
Acknowledged and accepted:
NATIONSBANK, N.A.,
as Administrative Agent as aforesaid for
the Lenders
By
---------------------------------
Title
------------------------------
- ----------------------------
/1/ For use only if the Subsidiary is not incorporated or organized under the
law of any state of the United States or the District of Columbia.
Schedule III - Page 4
<PAGE>
SCHEDULE IV
Form of Guaranty Agreement
--------------------------
THIS GUARANTY AGREEMENT, dated as of December 23, 1997 (the "Guaranty
--------
Agreement"), is given by
- ---------
JP FOODSERVICE, INC., a Delaware corporation (the "Parent"), and THOSE
SUBSIDIARIES of the Borrowers identified on the signature pages hereto (together
with each other subsidiary which may become a party hereto by execution of a
Guarantor Joinder Agreement, the "Guarantors"); in favor of
----------
NATIONSBANK, N.A., a national banking association, in its capacity as agent
(in such capacity, hereinafter referred to as the "Administrative Agent") for
--------------------
the various lenders from time to time parties to that certain 364-Day Credit
Agreement dated as of December 23, 1997 (such Credit Agreement, as the same may
be modified or amended from time to time, being hereinafter referred to as the
"Credit Agreement") among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
- -----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent (capitalized terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement).
RECITALS:
- --------
1. Pursuant to the Credit Agreement, the Lenders have agreed, subject to
certain terms and conditions, to make available certain credit facilities to the
Borrowers.
2. As a condition precedent to making such credit facilities available to
the Borrowers, the Lenders have required, among other things, the Parent and
each of the Restricted Subsidiaries (as defined in the Credit Agreement) of the
Borrowers to guarantee all of the Borrowers' obligations arising under the
Credit Agreement and the other Credit Documents referred to therein.
3. Other than the Parent, each of the Guarantors is a Restricted
Subsidiary of a Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantors hereby agree as follows:
1. Guarantee of Payment. The Guarantors hereby irrevocably and
--------------------
unconditionally guarantee, jointly and severally, to the Administrative Agent
and the Lenders the prompt
Schedule IV - Page 1
<PAGE>
payment, when due, by acceleration or otherwise, of the Borrowers' Obligations.
For the purposes hereof the "Borrowers' Obligations" means all indebtedness,
obligations and liabilities of the Borrowers under the Credit Agreement or any
other of the Credit Documents to which either Borrower is a party, now existing
or hereafter arising, due or to become due, direct or indirect, absolute or
contingent, howsoever evidenced, held or acquired, as such Borrowers'
Obligations may be modified, extended, renewed or replaced from time to time.
The guaranty of the Guarantors as set forth in this Section 1 is a guaranty of
payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, the liability of each Guarantor with respect to the
Borrowers' Obligations guaranteed hereunder shall not exceed the Maximum
Guaranteed Amount for such Guarantor. For purposes hereof:
(i) "Maximum Guaranteed Amount" shall mean, for any Guarantor as of any
date of determination thereof, the sum of (a) with respect to each
Extension of Credit (or portion thereof) the proceeds of which are used to
make a Direct Transfer to such Guarantor, the outstanding amount of such
Extension of Credit (or such portion thereof), together with accrued and
unpaid interest thereon, plus (b) with respect to each Extension of Credit
----
(or portion thereof) the proceeds of which are not used to make a Direct
Transfer to such Guarantor, the lesser of (1) the outstanding amount of all
such Extensions of Credit (or such portions thereof), together with accrued
and unpaid interest thereon, as of the earlier of the date that enforcement
is sought against such Guarantor hereunder or the date of the commencement
of a case under the U.S. Bankruptcy Code in which such Guarantor is a
debtor, or (2) 95% of the Adjusted Net Worth of such Guarantor at the time
of such Extension of Credit, after deducting therefrom the amount
determined pursuant to clause (a) above.
(ii) "Extension of Credit" shall mean the making of any Loan.
(iii) "Direct Transfer" shall mean, in respect of any Guarantor, (a) all
loans, advances or capital contributions made to or for the benefit of such
Guarantor with proceeds of any Extension of Credit, (b) all debt securities
or other obligations of such Guarantor acquired from such Guarantor or
retired by such Guarantor with proceeds of any Extension of Credit, (c) the
fair market value of all property acquired with proceeds of any Extension
of Credit and transferred, absolutely and not as collateral, to such
Guarantor and (d) all equity securities of such Guarantor acquired from
such Guarantor with proceeds of any Extension of Credit.
(iv) "Adjusted Net Worth" shall mean, with respect to any Guarantor as of
any date of determination thereof, the excess of (a) the amount of the
"present fair saleable value" of the assets of such Guarantor as of such
date of determination, over (b) the amount of all "liabilities, contingent
or otherwise", of such Guarantor as of such date of determination, as such
quoted terms are determined in accordance with applicable Federal and state
laws governing determinations of the insolvency of debtors. In determining
the Adjusted Net
Schedule IV - Page 2
<PAGE>
Worth of any Guarantor for purposes of calculating the Maximum Guaranteed
Amount for such Guarantor in respect of any Extension of Credit, the
liabilities of such Guarantor to be used in such determination pursuant to
clause (b) of the preceding sentence shall in any event include the
liabilities of such Guarantor hereunder in respect of all Extensions of
Credit other than the Extension of Credit in respect of which such
calculation is being made.
2. Release of Collateral, Parties Liable, etc. Each of the Guarantors
-------------------------------------------
agrees that the time or place of payment of the Borrowers' Obligations may be
changed or extended, in whole or in part, to a time certain or otherwise, and
may be renewed or accelerated, in whole or in part; that the Borrowers may be
granted indulgences generally; that any provisions of the Credit Documents or
any other documents executed in connection with this transaction may be
modified, amended or waived; that any party liable for the payment of the
Borrowers' Obligations may be granted indulgences or released; and that any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Borrowers' Obligations may be released, in whole or in part,
at, before and/or after the stated, extended or accelerated maturity of the
Borrowers' Obligations, all without notice to or further assent by the
Guarantors, or any of them, who shall remain bound thereon, notwithstanding any
such extension, renewal, acceleration, modification, indulgence or release.
3. Waiver of Rights. Each of the Guarantors expressly waives: (a)
----------------
notice of acceptance of this Guaranty Agreement by the Administrative Agent and
the Lenders and of all extensions of credit to the Borrowers by the
Administrative Agent or any Lender; (b) presentment and demand for payment of
any of the Borrowers' Obligations; (c) protest and notice of dishonor or of
default to such Guarantor or to any other party with respect to the Borrowers'
Obligations or with respect to any security therefor; (d) all other notices to
which such Guarantor might otherwise be entitled; (e) demand for payment under
this Guaranty Agreement; and (f) any right to assert against the Administrative
Agent or any Lender, as a defense, counterclaim, set-off or cross-claim, any
defense (legal or equitable), set-off, counterclaim or claim which such
Guarantor may now or hereafter have against the Administrative Agent or any
Lender or the Borrowers, but such waiver shall not prevent such Guarantor from
asserting against the Administrative Agent or any Lender in a separate action,
any claim, action, cause of action, or demand that such Guarantor might have,
whether or not arising out of this Guaranty Agreement.
4. Primary Liability of Guarantors. Each of the Guarantors agrees that
-------------------------------
this Guaranty Agreement may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of having recourse to the Borrowers
under the Credit Agreement or otherwise, and each of the Guarantors hereby
waives the right to require the Administrative Agent and the Lenders to proceed
against the Borrowers or any other person (including a co-guarantor) or to
require the Administrative Agent and the Lenders to pursue any other remedy or
enforce any other right. Each of the Guarantors further agrees that it shall
have no right of subrogation, reimbursement or indemnity whatsoever for the
Borrowers' Obligations, so long as any amounts payable to the Administrative
Agent or the Lenders in respect of the Borrowers' Obligations
Schedule IV - Page 3
<PAGE>
shall remain outstanding and until all of the Commitments under the Credit
Agreement shall have been terminated. Each of the Guarantors further agrees that
nothing contained herein shall prevent the Administrative Agent or the Lenders
from suing the Borrowers with respect to their obligations under the Credit
Agreement or from exercising any other rights available to the Administrative
Agent or the Lenders under the Credit Agreement if neither the Borrowers nor the
Guarantors timely performs the obligations of the Borrowers thereunder, and the
exercise of any of the aforesaid rights shall not constitute a discharge of any
Guarantor's obligations hereunder; it being the purpose and intent of each of
the Guarantors that such Guarantor's obligations hereunder shall be absolute,
irrevocable, independent and unconditional under any and all circumstances.
Neither the Guarantors' obligations under this Guaranty Agreement nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by an impairment, modification, change, release or
limitation of the liability of the Borrowers, by reason of either Borrower's
bankruptcy or insolvency or by reason of the invalidity or unenforceability of
all or any portion of the Borrowers' Obligations. Each of the Guarantors
acknowledges that the term "Borrowers' Obligations" as used in this Guaranty
Agreement includes any payments made by either Borrower to the Administrative
Agent or any Lender and subsequently recovered by such Borrower or a trustee for
such Borrower pursuant to such Borrower's bankruptcy or insolvency and that the
guaranty of each of the Guarantors hereunder shall be reinstated to the extent
of such recovery.
5. Reasonable Attorneys' Fees. If at any time or times hereafter the
--------------------------
Administrative Agent or the Lenders employ counsel to pursue collection, to
intervene, to sue for enforcement of the terms hereof or of the Credit Agreement
or any other of the Credit Documents, or to file a petition, complaint, answer,
motion or other pleading in any suit or proceeding relating to this Guaranty
Agreement, the Credit Agreement or any other of the Credit Documents, then in
such event, all of the reasonable attorneys' fees relating thereto shall be an
additional liability of the Guarantors to the Administrative Agent and the
Lenders hereunder, payable on demand.
6. Set-off. Each Guarantor agrees that in the event such Guarantor fails
-------
to pay its obligations hereunder when due and payable under this Guaranty
Agreement, the Administrative Agent shall have all rights of set-off to the
extent available under, and to the extent exercised in accordance with,
applicable law.
7. Term of Guarantee; Representations and Warranties. This Guaranty
-------------------------------------------------
Agreement shall continue in full force and effect until the Borrowers'
Obligations are fully and indefeasibly paid, performed and discharged. This
Guaranty Agreement covers the Borrowers' Obligations whether presently
outstanding or arising subsequent to the date hereof including all amounts
advanced by the Administrative Agent or any Lender in stages or installments.
Each Guarantor warrants and represents to the Administrative Agent (i) that such
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (ii) that such
Guarantor has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, (iii) that the execution and delivery by such Guarantor of this
Guaranty Agreement and the other Credit Documents to which it is a party and the
performance by such Guarantor of
Schedule IV - Page 4
<PAGE>
its obligations hereunder and thereunder are within the corporate power of such
Guarantor, have been duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any governmental body, agency or
official (except for any such action or filing that has been taken and is in
full force and effect) and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or bylaws (or other organizational documents) of such Guarantor or of any
material agreement, judgment, injunction, order, decree, or other material
instrument binding upon such Guarantor or result in the creation or imposition
(other than pursuant to the Credit Documents) of any Lien on any asset of such
Guarantor and (iv) that this Guaranty Agreement and the other Credit Documents
to which such Guarantor is a party constitute valid, binding and enforceable
agreements of such Guarantor and, when executed and delivered, will constitute
valid and binding obligations of such Guarantor.
8. Further Representations and Warranties. Each Guarantor agrees that
--------------------------------------
the Administrative Agent and the Lenders will have no obligation to investigate
the financial condition or affairs of the Borrowers for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or any change in,
the financial condition or affairs of the Borrowers which might come to the
knowledge of the Administrative Agent or any Lender at any time, whether or not
the Administrative Agent or any Lender knows or believes or has reason to know
or believe that any such fact or change is unknown to such Guarantor or might
(or does) materially increase the risk of such Guarantor as guarantor or might
(or would) affect the willingness of such Guarantor to continue as guarantor
with respect to the Borrowers' Obligations.
9. Additional Liability of Guarantors. If any Guarantor is or becomes
----------------------------------
liable for any indebtedness owing by the Borrowers to the Administrative Agent
or any Lender by endorsement or otherwise other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or reduced hereby
but shall have all and the same force and effect it would have had if this
Guaranty Agreement had not existed and such Guarantor's liability hereunder
shall not be in any manner impaired or reduced thereby.
10. Cumulative Rights. All rights of the Administrative Agent and the
-----------------
Lenders hereunder or otherwise arising under any documents executed in
connection with or as security for the Borrowers' Obligations are separate and
cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Administrative
Agent or any Lender and without affecting or impairing the liability of any of
the Guarantors.
11. Usury. Notwithstanding any other provisions herein contained, no
-----
provision of this Guaranty Agreement shall require or permit the collection from
any Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in reduction of
such Guarantor's obligations hereunder, and the remainder of such excess
collected shall be returned to such Guarantor once such obligations have been
fully satisfied.
Schedule IV - Page 5
<PAGE>
12. The Administrative Agent. In acting under or by virtue of this
------------------------
Guaranty Agreement, the Administrative Agent shall be entitled to all the
rights, authority, privileges and immunities provided in Article XI of the
Credit Agreement, all of which provisions are incorporated by reference herein
with the same force and effect as if set forth herein. Each of the Guarantors
hereby releases the Administrative Agent from any liability for any act or
omission relating to this Guaranty Agreement, except such as may result from the
Administrative Agent's gross negligence or willful misconduct.
13. Restricted Subsidiaries. In the event that a Guarantor shall cease to
-----------------------
be a Restricted Subsidiary in accordance with the terms of the Credit Agreement,
then such Guarantor shall, automatically and without further act on the part of
the Administrative Agent or the Lenders, be released from its obligations under
this Guaranty Agreement.
14. Successors and Assigns. This Guaranty Agreement shall be binding on
----------------------
and enforceable against each Guarantor and its successors and assigns; provided
--------
that none of the Guarantors may assign or transfer any of its obligations
hereunder without prior written consent of the Required Lenders; provided
--------
further, that, except as otherwise permitted by Section 13 hereof and Section
- -------
8.18 of the Credit Agreement, none of the Guarantors may be released from their
obligations under this Guaranty Agreement to the extent any such release would
constitute a substantial portion of the benefits provided by the Guarantors
taken as whole without the consent of each Lender affected thereby. This
Guaranty Agreement is intended for and shall inure to the benefit of the
Administrative Agent and each Lender and each and every person who shall from
time to time be or become the owner or holder of any of the Borrowers'
Obligations, and each and every reference herein to "Administrative Agent" or
"Lender" shall include and refer to each and every successor or assignee of the
Administrative Agent or any Lender at any time holding or owning any part of or
interest in any part of the Borrowers' Obligations. This Guaranty Agreement
shall be transferable and negotiable with the same force and effect, and to the
same extent, that the Borrowers' Obligations are transferable and negotiable, it
being understood and stipulated that upon assignment or transfer by the
Administrative Agent or any Lender of any of the Borrowers' Obligations the
legal holder or owner of the Borrowers' Obligations (or a part thereof or
interest therein thus transferred or assigned by the Administrative Agent or any
Lender) shall (except as otherwise stipulated by the Administrative Agent or any
such Lender in its assignment) have and may exercise all of the rights granted
to the Administrative Agent or such Lender under this Guaranty Agreement to the
extent of that part of or interest in the Borrowers' Obligations thus assigned
or transferred to said person. Each Guarantor expressly waives notice of
transfer or assignment of the Borrowers' Obligations, or any part thereof, or of
the rights of the Administrative Agent or any Lender hereunder. Failure to give
notice will not affect the liabilities of the Guarantors hereunder.
15. Application of Payments. Each of the Administrative Agent and the
-----------------------
Lenders may apply any payments received by it from any source against that
portion of the Borrowers' Obligations (principal, interest, court costs,
attorneys' fees or other) in such priority and fashion as it may deem
appropriate.
Schedule IV - Page 6
<PAGE>
16. Modifications. Subject to the terms of Section 12.07 of the Credit
-------------
Agreement, this Guaranty Agreement and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by each of the
Guarantors affected thereby and the Administrative Agent.
17. Notices. Notices and other communications provided for herein shall
-------
be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to any Guarantor, to it c/o JP Foodservice Distributors, Inc., 9830
Patuxent Woods Drive, Columbia, Maryland 21046, Attention of Vice President-
Finance and Controller (Facsimile No. 410-309-6296);
(b) if to the Administrative Agent, to it at 6610 Rockledge Drive, 6th
Floor, MD2-600-06-05, Bethesda, Maryland 20817-1876, Attention of Michael R.
Heredia (Facsimile No. 301-571-0719).
All notices and other communications given to any party hereto in accordance
with the provisions of this Guaranty Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sender, or on the date five (5) Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 17 or at such
other address or telex, telecopy or other number as shall be designated by such
party in a notice to each other party complying with the terms of this Section
17.
18. Net Payments. All payments made by the Guarantors hereunder will be
------------
made without set-off or counterclaim. All payments by the Guarantors hereunder
shall be made free and clear of and without deduction or withholding for any
Taxes (as hereinafter defined), except to the extent that such deduction or
withholding is required by law. For purposes of this Section 18, "Taxes" shall
mean any present or future license, registration or other fees, taxes or other
amounts for or on account of levies, imposts, duties, deductions, withholdings
or other charges of whatsoever nature, imposed, levied, collected, withheld or
assessed by any governmental or taxing authority, excluding income and franchise
taxes imposed on a Lender (i) by a jurisdiction under which such Lender is
organized or operating in connection with this Guaranty Agreement or any
political subdivision thereof or (ii) as a result of a present or former
connection between the jurisdiction of the governmental or taxing authority
imposing such taxes and the Lender. If the Guarantors shall be required to
withhold or deduct Taxes (other than U.S. Taxes as defined in Section 4.05 of
the Credit Agreement) from any sum payable hereunder, (i) the sum payable shall
be increased as may be necessary so that the amount received is equal to the sum
which would have been received had no withholdings or deductions been made, (ii)
the Guarantors shall make such necessary withholdings or deductions and (iii)
the Guarantors shall pay the full
Schedule IV - Page 7
<PAGE>
amount withheld or deducted to the relevant authority according to applicable
law so that the Lenders shall not be required to make any deduction or payment
of Taxes. Notwithstanding anything contained in this Section, the Guarantors
shall not be required to make payment hereunder to the extent such amounts
relate to any period prior to the date that is 90 days prior to the date that
the Guarantors first receive notice from such Lender requesting payment of any
such additional amounts.
19. Severability. In the event that any provision hereof shall be deemed
------------
to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
20. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
----------------------------------------------------------------
Trial.
- ------
(a) THIS GUARANTY AGREEMENT AND ALL AMENDMENTS, SUPPLEMENTS,
MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTION 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) EACH OF THE GUARANTORS HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS GUARANTY
AGREEMENT MAY BE LITIGATED IN SUCH COURTS, AND EACH OF THE GUARANTORS WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO
--------------------
THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED IN SECTION 17 HEREOF AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN MAILED TO SUCH
GUARANTOR IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING IN THE
COURTS OF ANY JURISDICTION AGAINST ANY OF THE GUARANTORS OR TO ENFORCE A
JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. EACH OF THE
Schedule IV - Page 8
<PAGE>
GUARANTORS ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Headings. The headings in this instrument are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
22. Counterparts. This Guaranty Agreement may be executed in any number
------------
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Guaranty Agreement to produce or
account for more than one such counterpart.
23. Rights of the Required Lenders. All rights of the Administrative
------------------------------
Agent hereunder, if not exercised by the Administrative Agent, may be exercised
by the Required Lenders.
[Remainder of Page Intentionally Left Blank]
Schedule IV - Page 9
<PAGE>
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty
Agreement to be duly executed as of the date first above written.
JP FOODSERVICE, INC.,
a Delaware corporation
By
-------------------------------
Lewis Hay, III
Executive Vice President and Chief Financial
Officer
BEIJING CHEF, INC.,
a Delaware corporation
E & H DISTRIBUTING CO.,
(d/b/a Valley Food Distributors of Nevada),
a Nevada corporation
HARRISON'S PRIME MEATS & PROVISIONS, INC., a
Nevada corporation
JPF REAL ESTATE HOLDINGS, INC.,
a Delaware corporation
ILLINOIS FRUIT & PRODUCE CORP.,
an Illinois corporation
SKY BROS., INC.,
a Pennsylvania corporation
MAZO-LERCH COMPANY,
a Delaware corporation
TRANS-PORTE, INC.,
a Delaware corporation
EL PASADO, INC.,
a Delaware corporation
RITUALS COFFEE COMPANY,
a Delaware corporation
ROSELI PRODUCTS CORPORATION,
a Delaware corporation
SQUERI FOOD SERVICE, INC.,
an Ohio corporation
NEVADA BAKING COMPANY,
a Nevada corporation
OUTWEST MEAT COMPANY,
a Nevada corporation
HILLTOP HEARTH BAKERIES, INC.,
a Delaware corporation
CROSS VALLEY FARMS, INC.,
Schedule IV - Page 10
<PAGE>
a Delaware corporation
By:
--------------------------------------
Lewis Hay, III
Vice President
for each of the foregoing
Schedule IV - Page 11
<PAGE>
BIGGERS BROTHERS, INC.,
a Delaware corporation
BRB HOLDINGS, INC.,
a Delaware corporation
F.H. BEVEVINO & COMPANY, INC.,
a Pennsylvania corporation
FOOD DISTRIBUTION CONCEPTS, INC.,
a Delaware corporation
JOHN SEXTON & CO.,
a Delaware corporation
KING'S FOODSERVICE, INC.,
a Kentucky corporation
JP FOOD DISTRIBUTORS, INC.,
a Delaware corporation
ROANOKE RESTAURANT SERVICE, INC.,
a Virginia corporation
RYKOFF-SEXTON SERVICES, INC.,
a Nevada corporation
TARGETED SPECIALTY SERVICES, INC.,
a Delaware corporation
US FOODSERVICE OF ATLANTA, INC.,
a Delaware corporation
US FOODSERVICE OF FLORIDA, INC.,
a Delaware corporation
US FOODSERVICE OF ILLINOIS, INC.,
a Delaware corporation
US SYSTEMS DISTRIBUTION, INC.,
a Texas corporation
WHITE SWAN, INC.,
a Delaware corporation
WS HOLDINGS CORPORATION,
a Delaware corporation
By
-------------------------------
Richard J. Martin
Vice President
for each of the foregoing
US FOODSERVICE, INC.,
a Delaware corporation
By
-------------------------------
Richard J. Martin
Senior Vice President
Schedule IV - Page 12
<PAGE>
ACCEPTED:
NATIONSBANK, N.A.,
as Administrative Agent
as aforesaid for the Lenders
By
---------------------------------
Title
------------------------------
Schedule IV - Page 13
<PAGE>
SCHEDULE V
Form of Notice of Borrowing
---------------------------
NationsBank, N.A.
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attention of Kathy Mumpower
Dear Sirs:
The undersigned Borrower refers to the 364-Day Credit Agreement dated as of
December 23, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.01(b)(i) of the
Credit Agreement that it requests a Revolving Loan advance, and in that
connection sets forth below the terms on which such Revolving Loan advance is
requested to be made:
(A) Date of advance
(which is a Business Day)
--------------------------
(B) Aggregate principal amount
of advance
--------------------------
(C) Interest rate basis
(Base Rate Loan, Eurodollar
Loan, or a combination thereof)
--------------------------
(D) Interest Period and the
last day thereof (if Eurodollar
Loan is requested)
--------------------------
The delivery of this Notice of Borrowing shall constitute a representation
and warranty by the Borrowers of the correctness of the matters specified in
Sections 5.02(b), (c) and (d) of the Credit Agreement.
Very truly yours,
By:
---------------------------------
Title:
------------------------------
Schedule V - Page 1
<PAGE>
SCHEDULE VA-1
Form of Competitive Bid Request
-------------------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Kathy Mumpower
Ladies and Gentlemen:
The undersigned Borrower refers to the 364-Day Credit Agreement dated as of
December 23, 1997 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice
----------------
Distributors, Inc. (the "Borrowers"), the Lenders party thereto, NationsBank,
---------
N.A., as Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Borrower hereby gives you notice
pursuant to Section 2.02(b) of the Credit Agreement that it requests
solicitation of Competitive Bids under the Credit Agreement, and in connection
herewith sets forth below the terms on which the related Competitive Loans
borrowing is requested to be made:
(A) Date of Competitive Loan borrowing
(which is a Business Day)
----------------------------
(B) Principal amount of
Competitive Loan borrowing
----------------------------
(C) Interest Period and the last day
thereof
----------------------------
The delivery of this Competitive Bid Request shall constitute a
representation and warranty by the Borrowers of the correctness of the matters
specified in Sections 5.02(b), (c) and (d) of the Credit Agreement.
Very truly yours,
By:
-----------------------------
Title:
---------------------------
Schedule V - Page 2
<PAGE>
SCHEDULE VA-2
Form of Notice of Receipt of Competitive Bid Request
----------------------------------------------------
[Name of Lender]
[Address]
Attention:
Dear Sirs:
Reference is made to the 364-Day Credit Agreement dated as of December 23,
1997 (as amended, modified, extended or restated from time to time, the "Credit
------
Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice Distributors, Inc.
- ---------
(the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. A Borrower made a Competitive Bid Request
on ____________, 19__, pursuant to Section 2.02(b) of the Credit Agreement, and
in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) on ___________, 19__ [Business Day next
succeeding the date of receipt by the Administrative Agent of the related
Competitive Bid Request]. Your Competitive Bid must comply with Section 2.02(c)
of the Credit Agreement and the terms as set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing
---------------------------------
(B) Principal amount of
Competitive Borrowing
---------------------------------
(C) Interest Period and the last
day thereof
---------------------------------
Very truly yours,
NATIONSBANK, N.A.,
as Administrative Agent
By
----------------------------------------
Title:
-------------------------------------
Schedule V - Page 3
<PAGE>
SCHEDULE VA-3
Form of Competitive Bid
-----------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Kathy Mumpower
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the 364-Day Credit Agreement
dated as of December 23, 1997 (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 2.02(c) of the Credit Agreement, in
response to the Competitive Bid Request made by a Borrower on ____________,
19__, and in that connection sets forth below the terms on which such
Competitive Bid is made:
(A) Minimum (not less than $1,000,000 minimum:
----------------
and integral multiples of $1,000,000 maximum:
----------------
in excess thereof) and maximum
Principal Amounts
(B) Competitive Bid Rate(s)
------------------------
(C) Interest Period(s) and last
day(s) thereof
------------------------
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrowers
upon acceptance by the applicable Borrower of this bid in accordance with
Section 2.02(e) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:
----------------------------------------
Title:
-------------------------------------
Schedule V - Page 4
<PAGE>
SCHEDULE VA-4
Form of Competitive Bid Accept/Reject Letter
--------------------------------------------
NationsBank, N.A.,
as Agent for the Lenders
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attn: Agency Services
Ladies and Gentlemen:
The undersigned Borrower refers to the 364-Day Credit Agreement dated as of
December 23, 1997 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP Foodservice
----------------
Distributors, Inc. (the "Borrowers"), the Lenders party thereto, NationsBank,
---------
N.A., as Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent.
In accordance with Section 2.02(e) of the Credit Agreement, in connection
with our Competitive Bid Request dated ____________, 19__ and in accordance with
Section 2.02(e) of the Credit Agreement, we hereby accept the following bids for
maturity on [date]:
<TABLE>
<CAPTION>
Principal Amount Competitive Bid Rate Lender
- ---------------- -------------------- ------
<S> <C> <C>
$ [%]
$ [%]
We hereby reject the following bids:
<CAPTION>
Principal Amount Competitive Bid Rate Lender
- ---------------- -------------------- ------
<S> <C> <C>
$ [%]
$ [%]
</TABLE>
Very truly yours,
By:
-------------------------------------
Title:
----------------------------------
Schedule V - Page 5
<PAGE>
SCHEDULE VI
Form of Notice of Extension/Conversion
--------------------------------------
NationsBank, N.A.
NationsBank Plaza, 6th Floor
NC1-002-06-19
Charlotte, North Carolina 28255
Attention of Kathy Mumpower
Dear Sirs:
The undersigned Borrower refers to the 364-Day Credit Agreement dated as of
December 23, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Rykoff-Sexton, Inc. and JP
----------------
Foodservice Distributors, Inc. (the "Borrowers"), the Lenders party thereto,
---------
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned Borrower hereby gives you notice pursuant to Section 3.03 of the
Credit Agreement that it requests an extension or conversion of an outstanding
Revolving Loan and in that connection sets forth below the terms on which such
extension or conversion is requested to be made:
(A) Loan(s) to be extended or converted
------------------------------
(B) Date of extension or conversion
(which, in the case of a Eurodollar
Loan, is the last day of the
the applicable Interest Period)
------------------------------
(C) Aggregate principal amount
of extension or conversion
------------------------------
(D) Interest rate basis
(Base Rate Loan, Eurodollar
Loan, or a combination thereof)
------------------------------
(E) Interest Period and the
last day thereof (if Eurodollar
Loan is requested)
------------------------------
Schedule VI - Page 1
<PAGE>
The delivery of this Notice of Extension/Conversion shall constitute a
representation and warranty by the Borrowers of the correctness of the matters
specified in Sections 5.02(b), (c) and (d) of the Credit Agreement.
Very truly yours,
By:
-----------------------------
Title:
--------------------------
Schedule VI - Page 2
<PAGE>
SCHEDULE XIV
Form of Lender Assignment Agreement
-----------------------------------
Reference is made to the 364-Day Credit Agreement dated as of December 23, 1997
(as it may be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among Rykoff-Sexton, Inc., JP Foodservice Distributors,
----------------
Inc., the Lenders party thereto, NationsBank, N.A., as Administrative Agent,
NationsBanc Montgomery Securities, Inc. and Chase Securities, Inc., as Co-
Arrangers, The Chase Manhattan Bank, as Syndication Agent, and Bank of America,
NT & SA, as Documentation Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below, the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
-----------------
obligations under the Credit Agreement and the other Credit Documents,
including, without limitation, the interests set forth below in the Commitment
of the Assignor on the Effective Date, the Revolving Loans and Competitive Loans
owing to the Assignor which are outstanding on the Effective Date, together with
unpaid interest accrued on the assigned Loans to the Effective Date and the
amount, if any, set forth below of the Fees accrued to the Effective Date for
the account of the Assignor. Each of the Assignor and the Assignee hereby makes
and agrees to be bound by all the representations, warranties and agreements set
forth in Section 12.04(b) of the Credit Agreement. From and after the Effective
Date (i) the Assignee, if it is not already a Lender under the Credit Agreement,
shall be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests assigned by this Assignment Agreement, have the
rights and obligations of a Lender thereunder and under the other Credit
Documents and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment Agreement is being delivered to the Administrative
Agent pursuant to Section 12.04(b) of the Credit Agreement together with a
processing and recordation fee of $2,500.
3. This Assignment Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
<PAGE>
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Commitment Percentage Assigned:
Revolving Loans Assigned:
Fees Assigned:
THE TERMS SET FORTH ABOVE
ARE HEREBY AGREED TO:
__________________________, AS ASSIGNOR
By:_____________________________________
Title:
_________________________, AS ASSIGNEE
By:_____________________________________
Title:
CONSENTED TO:
NATIONSBANK, N.A.,
as Administrative Agent
By:___________________________________
Title:
JP FOODSERVICE DISTRIBUTORS, INC.
By:___________________________________
Title:
RYKOFF-SEXTON, INC.
By:___________________________________
Title:
Schedule XIV - Page 2
<PAGE>
EXHIBIT 10.2.2
364-DAY GUARANTY AGREEMENT
--------------------------
THIS 364-DAY GUARANTY AGREEMENT, dated as of December 23, 1997 (the
"Guaranty Agreement"), is given by
JP FOODSERVICE, INC., a Delaware corporation (the "Parent"), and THOSE
SUBSIDIARIES of the Borrowers identified on the signature pages hereto (together
with each other subsidiary which may become a party hereto by execution of a
Guarantor Joinder Agreement, the "Guarantors"); in favor of
----------
NATIONSBANK, N.A., a national banking association, in its capacity as agent
(in such capacity, hereinafter referred to as the "Administrative Agent") for
--------------------
the various lenders from time to time parties to that certain 364-Day Credit
Agreement dated as of December 23, 1997 (such Credit Agreement, as the same may
be modified or amended from time to time, being hereinafter referred to as the
"Credit Agreement") among Rykoff-Sexton, Inc. and JP Foodservice Distributors,
- -----------------
Inc. (the "Borrowers"), the Lenders party thereto, NationsBank, N.A., as
---------
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as Syndication
Agent, and Bank of America, NT & SA, as Documentation Agent (capitalized terms
used but not otherwise defined herein shall have the meanings provided in the
Credit Agreement).
RECITALS:
- --------
1. Pursuant to the Credit Agreement, the Lenders have agreed, subject to
certain terms and conditions, to make available certain credit facilities to the
Borrowers.
2. As a condition precedent to making such credit facilities available to
the Borrowers, the Lenders have required, among other things, the Parent and
each of the Restricted Subsidiaries (as defined in the Credit Agreement) of the
Borrowers to guarantee all of the Borrowers' obligations arising under the
Credit Agreement and the other Credit Documents referred to therein.
3. Other than the Parent, each of the Guarantors is a Restricted
Subsidiary of a Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the Guarantors hereby agree as follows:
1. Guarantee of Payment. The Guarantors hereby irrevocably and
--------------------
unconditionally guarantee, jointly and severally, to the Administrative Agent
and the Lenders the prompt payment, when due, by acceleration or otherwise, of
the Borrowers' Obligations. For the purposes hereof the "Borrowers'
Obligations" means all indebtedness, obligations and liabilities of the
Borrowers under the Credit Agreement or any other of the Credit Documents to
which either Borrower is a party, now existing or hereafter arising, due or to
become due, direct or
<PAGE>
indirect, absolute or contingent, howsoever evidenced, held or acquired, as such
Borrowers' Obligations may be modified, extended, renewed or replaced from time
to time. The guaranty of the Guarantors as set forth in this Section 1 is a
guaranty of payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents, the liability of each Guarantor with respect to the
Borrowers' Obligations guaranteed hereunder shall not exceed the Maximum
Guaranteed Amount for such Guarantor. For purposes hereof:
(i) "Maximum Guaranteed Amount" shall mean, for any Guarantor as of any
date of determination thereof, the sum of (a) with respect to each
Extension of Credit (or portion thereof) the proceeds of which are used to
make a Direct Transfer to such Guarantor, the outstanding amount of such
Extension of Credit (or such portion thereof), together with accrued and
unpaid interest thereon, plus (b) with respect to each Extension of Credit
----
(or portion thereof) the proceeds of which are not used to make a Direct
Transfer to such Guarantor, the lesser of (1) the outstanding amount of all
such Extensions of Credit (or such portions thereof), together with accrued
and unpaid interest thereon, as of the earlier of the date that enforcement
is sought against such Guarantor hereunder or the date of the commencement
of a case under the U.S. Bankruptcy Code in which such Guarantor is a
debtor, or (2) 95% of the Adjusted Net Worth of such Guarantor at the time
of such Extension of Credit, after deducting therefrom the amount
determined pursuant to clause (a) above.
(ii) "Extension of Credit" shall mean the making of any Loan or the
issuance, or extension of the maturity date, of any Letters of Credit.
(iii) "Direct Transfer" shall mean, in respect of any Guarantor, (a) all
loans, advances or capital contributions made to or for the benefit of such
Guarantor with proceeds of any Extension of Credit, (b) all debt securities
or other obligations of such Guarantor acquired from such Guarantor or
retired by such Guarantor with proceeds of any Extension of Credit, (c) the
fair market value of all property acquired with proceeds of any Extension
of Credit and transferred, absolutely and not as collateral, to such
Guarantor and (d) all equity securities of such Guarantor acquired from
such Guarantor with proceeds of any Extension of Credit.
(iv) "Adjusted Net Worth" shall mean, with respect to any Guarantor as of
any date of determination thereof, the excess of (a) the amount of the
"present fair saleable value" of the assets of such Guarantor as of such
date of determination, over (b) the amount of all "liabilities, contingent
or otherwise", of such Guarantor as of such date of determination, as such
quoted terms are determined in accordance with applicable Federal and state
laws governing determinations of the insolvency of debtors. In determining
the Adjusted Net Worth of any Guarantor for purposes of calculating the
Maximum Guaranteed Amount for such Guarantor in respect of any Extension of
Credit, the liabilities of such Guarantor to be used in such determination
pursuant to clause (b) of the preceding sentence shall in any event include
the liabilities of such Guarantor hereunder in respect of all Extensions
2
<PAGE>
of Credit other than the Extension of Credit in respect of which such
calculation is being made.
2. Release of Collateral, Parties Liable, etc. Each of the Guarantors
-------------------------------------------
agrees that the time or place of payment of the Borrowers' Obligations may be
changed or extended, in whole or in part, to a time certain or otherwise, and
may be renewed or accelerated, in whole or in part; that the Borrowers may be
granted indulgences generally; that any provisions of the Credit Documents or
any other documents executed in connection with this transaction may be
modified, amended or waived; that any party liable for the payment of the
Borrowers' Obligations may be granted indulgences or released; and that any
deposit balance for the credit of the Borrowers or any other party liable for
the payment of the Borrowers' Obligations may be released, in whole or in part,
at, before and/or after the stated, extended or accelerated maturity of the
Borrowers' Obligations, all without notice to or further assent by the
Guarantors, or any of them, who shall remain bound thereon, notwithstanding any
such extension, renewal, acceleration, modification, indulgence or release.
3. Waiver of Rights. Each of the Guarantors expressly waives: (a)
----------------
notice of acceptance of this Guaranty Agreement by the Administrative Agent and
the Lenders and of all extensions of credit to the Borrowers by the
Administrative Agent or any Lender; (b) presentment and demand for payment of
any of the Borrowers' Obligations; (c) protest and notice of dishonor or of
default to such Guarantor or to any other party with respect to the Borrowers'
Obligations or with respect to any security therefor; (d) all other notices to
which such Guarantor might otherwise be entitled; (e) demand for payment under
this Guaranty Agreement; and (f) any right to assert against the Administrative
Agent or any Lender, as a defense, counterclaim, set-off or cross-claim, any
defense (legal or equitable), set-off, counterclaim or claim which such
Guarantor may now or hereafter have against the Administrative Agent or any
Lender or the Borrowers, but such waiver shall not prevent such Guarantor from
asserting against the Administrative Agent or any Lender in a separate action,
any claim, action, cause of action, or demand that such Guarantor might have,
whether or not arising out of this Guaranty Agreement.
4. Primary Liability of Guarantors. Each of the Guarantors agrees that
-------------------------------
this Guaranty Agreement may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of having recourse to the Borrowers
under the Credit Agreement or otherwise, and each of the Guarantors hereby
waives the right to require the Administrative Agent and the Lenders to proceed
against the Borrowers or any other person (including a co-guarantor) or to
require the Administrative Agent and the Lenders to pursue any other remedy or
enforce any other right. Each of the Guarantors further agrees that it shall
have no right of subrogation, reimbursement or indemnity whatsoever for the
Borrowers' Obligations, so long as any amounts payable to the Administrative
Agent or the Lenders in respect of the Borrowers' Obligations shall remain
outstanding and until all of the Commitments under the Credit Agreement shall
have been terminated. Each of the Guarantors further agrees that nothing
contained herein shall prevent the Administrative Agent or the Lenders from
suing the Borrowers with respect to their obligations under the Credit Agreement
or from exercising any other rights available to the Administrative Agent or the
Lenders under the Credit Agreement if neither the Borrowers nor the
3
<PAGE>
Guarantors timely performs the obligations of the Borrowers thereunder, and the
exercise of any of the aforesaid rights shall not constitute a discharge of any
Guarantor's obligations hereunder; it being the purpose and intent of each of
the Guarantors that such Guarantor's obligations hereunder shall be absolute,
irrevocable, independent and unconditional under any and all circumstances.
Neither the Guarantors' obligations under this Guaranty Agreement nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by an impairment, modification, change, release or
limitation of the liability of the Borrowers, by reason of either Borrower's
bankruptcy or insolvency or by reason of the invalidity or unenforceability of
all or any portion of the Borrowers' Obligations. Each of the Guarantors
acknowledges that the term "Borrowers' Obligations" as used in this Guaranty
Agreement includes any payments made by either Borrower to the Administrative
Agent or any Lender and subsequently recovered by such Borrower or a trustee for
such Borrower pursuant to such Borrower's bankruptcy or insolvency and that the
guaranty of each of the Guarantors hereunder shall be reinstated to the extent
of such recovery.
5. Reasonable Attorneys' Fees. If at any time or times hereafter the
--------------------------
Administrative Agent or the Lenders employ counsel to pursue collection, to
intervene, to sue for enforcement of the terms hereof or of the Credit Agreement
or any other of the Credit Documents, or to file a petition, complaint, answer,
motion or other pleading in any suit or proceeding relating to this Guaranty
Agreement, the Credit Agreement or any other of the Credit Documents, then in
such event, all of the reasonable attorneys' fees relating thereto shall be an
additional liability of the Guarantors to the Administrative Agent and the
Lenders hereunder, payable on demand.
6. Set-off. Each Guarantor agrees that in the event such Guarantor fails
-------
to pay its obligations hereunder when due and payable under this Guaranty
Agreement, the Administrative Agent shall have all rights of set-off to the
extent available under, and to the extent exercised in accordance with,
applicable law.
7. Term of Guarantee; Representations and Warranties. This Guaranty
-------------------------------------------------
Agreement shall continue in full force and effect until the Borrowers'
Obligations are fully and indefeasibly paid, performed and discharged. This
Guaranty Agreement covers the Borrowers' Obligations whether presently
outstanding or arising subsequent to the date hereof including all amounts
advanced by the Administrative Agent or any Lender in stages or installments.
Each Guarantor warrants and represents to the Administrative Agent (i) that such
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (ii) that such
Guarantor has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, (iii) that the execution and delivery by such Guarantor of this
Guaranty Agreement and the other Credit Documents to which it is a party and the
performance by such Guarantor of its obligations hereunder and thereunder are
within the corporate power of such Guarantor, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official (except for any such action or
filing that has been taken and is in full force and effect) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or bylaws (or other
organizational documents) of such Guarantor or of any material agreement,
4
<PAGE>
judgment, injunction, order, decree, or other material instrument binding upon
such Guarantor or result in the creation or imposition (other than pursuant to
the Credit Documents) of any Lien on any asset of such Guarantor and (iv) that
this Guaranty Agreement and the other Credit Documents to which such Guarantor
is a party constitute valid, binding and enforceable agreements of such
Guarantor and, when executed and delivered, will constitute valid and binding
obligations of such Guarantor.
8. Further Representations and Warranties. Each Guarantor agrees that
--------------------------------------
the Administrative Agent and the Lenders will have no obligation to investigate
the financial condition or affairs of the Borrowers for the benefit of such
Guarantor nor to advise such Guarantor of any fact respecting, or any change in,
the financial condition or affairs of the Borrowers which might come to the
knowledge of the Administrative Agent or any Lender at any time, whether or not
the Administrative Agent or any Lender knows or believes or has reason to know
or believe that any such fact or change is unknown to such Guarantor or might
(or does) materially increase the risk of such Guarantor as guarantor or might
(or would) affect the willingness of such Guarantor to continue as guarantor
with respect to the Borrowers' Obligations.
9. Additional Liability of Guarantors. If any Guarantor is or becomes
----------------------------------
liable for any indebtedness owing by the Borrowers to the Administrative Agent
or any Lender by endorsement or otherwise other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or reduced hereby
but shall have all and the same force and effect it would have had if this
Guaranty Agreement had not existed and such Guarantor's liability hereunder
shall not be in any manner impaired or reduced thereby.
10. Cumulative Rights. All rights of the Administrative Agent and the
-----------------
Lenders hereunder or otherwise arising under any documents executed in
connection with or as security for the Borrowers' Obligations are separate and
cumulative and may be pursued separately, successively or concurrently, or not
pursued, without affecting or limiting any other right of the Administrative
Agent or any Lender and without affecting or impairing the liability of any of
the Guarantors.
11. Usury. Notwithstanding any other provisions herein contained, no
-----
provision of this Guaranty Agreement shall require or permit the collection from
any Guarantor of interest in excess of the maximum rate or amount that such
Guarantor may be required or permitted to pay pursuant to any applicable law.
In the event any such interest is collected, it shall be applied in reduction of
such Guarantor's obligations hereunder, and the remainder of such excess
collected shall be returned to such Guarantor once such obligations have been
fully satisfied.
12. The Administrative Agent. In acting under or by virtue of this
------------------------
Guaranty Agreement, the Administrative Agent shall be entitled to all the
rights, authority, privileges and immunities provided in Article XI of the
Credit Agreement, all of which provisions are incorporated by reference herein
with the same force and effect as if set forth herein. Each of the Guarantors
hereby releases the Administrative Agent from any liability for any act or
omission
5
<PAGE>
relating to this Guaranty Agreement, except such as may result from the
Administrative Agent's gross negligence or willful misconduct.
13. Restricted Subsidiaries. In the event that a Guarantor shall cease to
-----------------------
be a Restricted Subsidiary in accordance with the terms of the Credit Agreement,
then such Guarantor shall, automatically and without further act on the part of
the Administrative Agent or the Lenders, be released from its obligations under
this Guaranty Agreement.
14. Successors and Assigns. This Guaranty Agreement shall be binding on
----------------------
and enforceable against each Guarantor and its successors and assigns; provided
--------
that none of the Guarantors may assign or transfer any of its obligations
hereunder without prior written consent of the Required Lenders; provided
--------
further, that, except as otherwise permitted by Section 13 hereof and Section
- -------
8.18 of the Credit Agreement, none of the Guarantors may be released from their
obligations under this Guaranty Agreement to the extent any such release would
constitute a substantial portion of the benefits provided by the Guarantors
taken as a whole without the consent of each Lender affected thereby. This
Guaranty Agreement is intended for and shall inure to the benefit of the
Administrative Agent and each Lender and each and every person who shall from
time to time be or become the owner or holder of any of the Borrowers'
Obligations, and each and every reference herein to "Administrative Agent" or
"Lender" shall include and refer to each and every successor or assignee of the
Administrative Agent or any Lender at any time holding or owning any part of or
interest in any part of the Borrowers' Obligations. This Guaranty Agreement
shall be transferable and negotiable with the same force and effect, and to the
same extent, that the Borrowers' Obligations are transferable and negotiable, it
being understood and stipulated that upon assignment or transfer by the
Administrative Agent or any Lender of any of the Borrowers' Obligations the
legal holder or owner of the Borrowers' Obligations (or a part thereof or
interest therein thus transferred or assigned by the Administrative Agent or any
Lender) shall (except as otherwise stipulated by the Administrative Agent or any
such Lender in its assignment) have and may exercise all of the rights granted
to the Administrative Agent or such Lender under this Guaranty Agreement to the
extent of that part of or interest in the Borrowers' Obligations thus assigned
or transferred to said person. Each Guarantor expressly waives notice of
transfer or assignment of the Borrowers' Obligations, or any part thereof, or of
the rights of the Administrative Agent or any Lender hereunder. Failure to give
notice will not affect the liabilities of the Guarantors hereunder.
15. Application of Payments. Each of the Administrative Agent and the
-----------------------
Lenders may apply any payments received by it from any source against that
portion of the Borrowers' Obligations (principal, interest, court costs,
attorneys' fees or other) in such priority and fashion as it may deem
appropriate.
16. Modifications. Subject to the terms of Section 12.07 of the Credit
-------------
Agreement, this Guaranty Agreement and the provisions hereof may be changed,
discharged or terminated only by an instrument in writing signed by each of the
Guarantors affected thereby and the Administrative Agent.
6
<PAGE>
17. Notices. Notices and other communications provided for herein shall
-------
be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telex, telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to any Guarantor, to it c/o JP Foodservice Distributors, Inc.,
9830 Patuxent Woods Drive, Columbia, Maryland 21046, Attention of Vice
President-Finance and Controller (Facsimile No. 410-309-6296);
(b) if to the Administrative Agent, to it at 6610 Rockledge Drive, 6th
Floor, MD2-600-06-05, Bethesda, Maryland 20817-1876, Attention of Michael R.
Heredia (Facsimile No. 301-571-0719).
All notices and other communications given to any party hereto in accordance
with the provisions of this Guaranty Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sender, or on the date five (5) Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 17 or at such
other address or telex, telecopy or other number as shall be designated by such
party in a notice to each other party complying with the terms of this Section
17.
18. Net Payments. All payments made by the Guarantors hereunder will be
------------
made without set-off or counterclaim. All payments by the Guarantors hereunder
shall be made free and clear of and without deduction or withholding for any
Taxes (as hereinafter defined), except to the extent that such deduction or
withholding is required by law. For purposes of this Section 18, "Taxes" shall
mean any present or future license, registration or other fees, taxes or other
amounts for or on account of levies, imposts, duties, deductions, withholdings
or other charges of whatsoever nature, imposed, levied, collected, withheld or
assessed by any governmental or taxing authority, excluding income and franchise
taxes imposed on a Lender (i) by a jurisdiction under which such Lender is
organized or operating in connection with this Guaranty Agreement or any
political subdivision thereof or (ii) as a result of a present or former
connection between the jurisdiction of the governmental or taxing authority
imposing such taxes and the Lender. If the Guarantors shall be required to
withhold or deduct Taxes (other than U.S. Taxes as defined in Section 4.05 of
the Credit Agreement) from any sum payable hereunder, (i) the sum payable shall
be increased as may be necessary so that the amount received is equal to the sum
which would have been received had no withholdings or deductions been made, (ii)
the Guarantors shall make such necessary withholdings or deductions and (iii)
the Guarantors shall pay the full amount withheld or deducted to the relevant
authority according to applicable law so that the Lenders shall not be required
to make any deduction or payment of Taxes. Notwithstanding anything contained
in this Section, the Guarantors shall not be required to make payment hereunder
to the extent such amounts relate to any period prior to the date that is 90
days prior to the date that the Guarantors first receive notice from such Lender
requesting payment of any such additional amounts.
7
<PAGE>
19. Severability. In the event that any provision hereof shall be deemed
------------
to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty Agreement shall be
construed as not containing such provision, but only as to such jurisdictions
where such law or interpretation is operative, and the invalidity of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
20. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
----------------------------------------------------------------
Trial.
- ------
(a) THIS GUARANTY AGREEMENT AND ALL AMENDMENTS, SUPPLEMENTS,
MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTION 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) EACH OF THE GUARANTORS HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS GUARANTY
AGREEMENT MAY BE LITIGATED IN SUCH COURTS, AND EACH OF THE GUARANTORS WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO
--------------------
THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED IN SECTION 17 HEREOF AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN MAILED TO SUCH
GUARANTOR IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE LEGAL PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING IN THE
COURTS OF ANY JURISDICTION AGAINST ANY OF THE GUARANTORS OR TO ENFORCE A
JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. EACH OF THE
GUARANTORS ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY
EXCEED THE TIME AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Headings. The headings in this instrument are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of any
provisions hereof.
8
<PAGE>
22. Counterparts. This Guaranty Agreement may be executed in any number
------------
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Guaranty Agreement to produce or
account for more than one such counterpart.
23. Rights of the Required Lenders. All rights of the Administrative
------------------------------
Agent hereunder, if not exercised by the Administrative Agent, may be exercised
by the Required Lenders.
[Remainder of Page Intentionally Left Blank]
9
<PAGE>
IN WITNESS WHEREOF, each of the Guarantors has caused this 364-Day Guaranty
Agreement to be duly executed as of the date first above written.
JP FOODSERVICE, INC.,
a Delaware corporation
By /s/ Lewis Hay, III
------------------------------------------
Lewis Hay, III
Executive Vice President and Chief Financial Officer
BEIJING CHEF, INC.,
a Delaware corporation
E & H DISTRIBUTING CO.,
(d/b/a Valley Food Distributors of Nevada),
a Nevada corporation
HARRISON PRIME MEATS & PROVISIONS, INC.,
a Nevada corporation
JPF REAL ESTATE HOLDINGS, INC.,
a Delaware corporation
ILLINOIS FRUIT & PRODUCE CORP.,
an Illinois corporation
SKY BROS., INC.,
a Pennsylvania corporation
MAZO-LERCH COMPANY,
a Delaware corporation
TRANS-PORTE, INC.,
a Delaware corporation
EL PASADO, INC.,
a Delaware corporation
RITUALS COFFEE COMPANY,
a Delaware corporation
ROSELI PRODUCTS CORPORATION,
a Delaware corporation
SQUERI FOOD SERVICE, INC.,
an Ohio corporation
NEVADA BAKING COMPANY,
a Nevada corporation
OUTWEST MEAT COMPANY,
a Nevada corporation
HILLTOP HEARTH BAKERIES, INC.,
a Delaware corporation
CROSS VALLEY FARMS, INC.,
a Delaware corporation
By: /s/ Lewis Hay, III
-----------------------------------------
Lewis Hay, III
Vice President
for each of the foregoing
<PAGE>
BIGGERS BROTHERS, INC.,
a Delaware corporation
BRB HOLDINGS, INC.,
a Delaware corporation
F.H. BEVEVINO & COMPANY, INC.,
a Pennsylvania corporation
FOOD DISTRIBUTION CONCEPTS, INC.,
a Delaware corporation
JOHN SEXTON & CO.,
a Delaware corporation
KING'S FOODSERVICE, INC.,
a Kentucky corporation
ROANOKE RESTAURANT SERVICE, INC.,
a Virginia corporation
RYKOFF-SEXTON SERVICES, INC.,
a Nevada corporation
TARGETED SPECIALTY SERVICES, INC.,
a Delaware corporation
US FOODSERVICE OF ATLANTA, INC.,
a Delaware corporation
US FOODSERVICE OF FLORIDA, INC.,
a Delaware corporation
US FOODSERVICE OF ILLINOIS, INC.,
a Delaware corporation
US SYSTEMS DISTRIBUTION, INC.,
a Texas corporation
WHITE SWAN, INC.,
a Delaware corporation
WS HOLDINGS CORPORATION,
a Delaware corporation
By /s/ Richard J. Martin
-------------------------------
Richard J. Martin
Vice President
for each of the foregoing
US FOODSERVICE, INC.,
a Delaware corporation
By /s/ Richard J. Martin
-------------------------------
Richard J. Martin
Senior Vice President
ACCEPTED:
NATIONSBANK, N.A.,
as Administrative Agent
as aforesaid for the Lenders
By /s/ Michael R. Heredia
---------------------------------
Title Senior Vice President
------------------------------
11
<PAGE>
EXHIBIT 10.3.7
WAIVER, CONSENT AND FIFTH AMENDMENT
TO PARTICIPATION AGREEMENT
THIS WAIVER, CONSENT AND FIFTH AMENDMENT TO PARTICIPATION AGREEMENT (this
"Amendment"), dated as of December 23, 1997, is entered into among: (a) Rykoff-
- ----------
Sexton, Inc., a Delaware corporation, as Lessee (the "Lessee"), (b) Hudson
------
Acquisition Corp. ("Merger Sub"), a Delaware corporation and wholly-owned
----------
subsidiary of JP Foodservice, Inc., a Delaware corporation (the "Company"), (c)
-------
BA Leasing & Capital Corporation, a California corporation, not in its
individual capacity, except as otherwise expressly provided herein, but solely
as Agent for the Lessors (the "Agent"), and (d) the various Lessors listed on
-----
the signature pages hereto (the "Lessors").
-------
WHEREAS, Lessee, Agent, the Lessors and Tone Brothers, Inc., an Iowa
corporation, entered into that certain Participation Agreement, dated as of
April 29, 1994, as amended by that certain First Amendment to Participation
Agreement, Second Amendment to Participation Agreement, Third Amendment to
Participation Agreement and Waiver, Consent and Fourth Amendment to
Participation Agreement and Lease Amendment (as so amended, the "Participation
-------------
Agreement"). Capitalized terms used herein without definition shall have the
- ---------
meanings ascribed to them in Schedule X to the Participation Agreement;
WHEREAS, simultaneously with execution of the Participation Agreement,
Lessee, Agent and the Lessors entered into a Lease Intended as Security (as
amended, the "Lease") and the other Operative Documents;
-----
WHEREAS, Lessee has entered into an Agreement and Plan of Merger dated as
of June 30, 1997 (as amended, the "Agreement and Plan of Merger") with Merger
----------------------------
Sub, which entity in connection with the Merger will change its corporate name
to Rykoff-Sexton, Inc., and the Company, pursuant to which Lessee, upon receipt
of the requisite approval from the stockholders of Lessee and the stockholders
of the Company, will merge with and into Merger Sub (the "Merger");
------
WHEREAS, Section 6.1(a)(ii) of the Participation Agreement and Section 21.2
of the Lease prohibit the merger of Lessee with or into any other corporation or
entity under certain circumstances;
WHEREAS, simultaneously with the consummation of the Merger, Merger Sub
will enter into a Five Year Credit Agreement dated as of December 23, 1997 among
Merger Sub, JP Foodservice Distributors, Inc., the lenders party thereto,
NationsBank, N.A., as Administrative Agent, NationsBanc Montgomery Securities,
Inc. and Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
Syndication Agent, and Bank of America, NT & SA, as Documentation Agent, and a
364-Day Credit Agreement dated as of December 23, 1997 among Merger Sub, JP
Foodservice Distributors, Inc., the lenders party thereto, NationsBank, N.A., as
Administrative Agent, NationsBanc Montgomery Securities, Inc. and Chase
Securities, Inc., as Co-
<PAGE>
Arrangers, The Chase Manhattan Bank, as Syndication Agent, and Bank of America,
NT & SA, as Documentation Agent (collectively, the "New Credit Agreement"),
--------------------
which will replace, among other arrangements, the Credit Agreement dated as of
May 17, 1996 among Lessee, Bank of America National Trust and Savings
Association, as Administrative Agent, BA Securities, Inc., as Syndication Agent,
The Chase Manhattan Bank, N.A., as an Agent and the other financial institutions
party thereto (the "Old Credit Agreement"); and
--------------------
WHEREAS, in order to affirm that the New Credit Agreement is a refinancing
of the Old Credit Agreement, Lessee desires to amend the definition of "Credit
Agreement" in Schedule X to the Participation Agreement and substitute therefor
the definition of "New Credit Agreement" as set forth above.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
terms and conditions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Waiver and Consent. The Lessors hereby consent to the Merger and
------------------
waive the provisions of Section 6.1(a)(ii) of the Participation Agreement and
Section 21.2 of the Lease insofar as such provisions would otherwise prohibit
the consummation of the Merger. The waiver and consent set forth in this
Amendment are strictly limited to the circumstances described herein and
pursuant to the terms and conditions of the Agreement and Plan of Merger and
shall not be deemed to apply to any other circumstances, terms or conditions or
to any other transaction. Except as expressly provided in Section 2 below, the
Operative Agreements shall not be amended or modified in any respect and shall
remain in full force and effect.
2. Amendments to Participation Agreement. Upon the effectiveness of this
-------------------------------------
Amendment pursuant to Section 4, hereof, the following amendments to the
Participation Agreement shall be effective:
(a) The definition of "Credit Agreement" in Schedule X to the
Participation Agreement is amended by deleting such definition in its
entirety and substituting the following therefor:
"Credit Agreement" or "Credit Agreements" shall mean,
collectively, the Five Year Credit Agreement dated as of December 23,
1997 among Lessee, JP Foodservice Distributors, Inc., the lenders
party thereto, NationsBank, N.A., as Administrative Agent, NationsBanc
Montgomery Securities, Inc. and Chase Securities, Inc., as Co-
Arrangers, The Chase Manhattan Bank, as Syndication Agent, and Bank of
America, NT & SA, as Documentation Agent, and the 364-Day Credit
Agreement dated as of December 23, 1997 among Lessee, JP Foodservice
Distributors, Inc., the lenders party thereto, NationsBank, N.A., as
Administrative Agent, NationsBanc Montgomery Securities, Inc. and
Chase Securities, Inc., as Co-Arrangers, The Chase Manhattan Bank, as
2
<PAGE>
Syndication Agent, and Bank of America, NT & SA, as Documentation
Agent, as each such agreement is amended, modified, restated or
refinanced from time to time.
(b) Following the consummation of the Merger, all references to the
Lessee in the Participation Agreement shall be deemed to refer to Merger
Sub.
(c) Section 6.1(l) of the Participation Agreement is amended by
deleting such Section in its entirety and substituting the following
therefor:
(l) The Lessee shall at all times comply or caused to be complied
with the covenants set forth in Sections 8.01 and 8.02 of each of the
Credit Agreements as in effect on December 23, 1997, which covenants
are incorporated herein by this reference as if set forth herein in
full (together with the definitions of all terms used in such Sections
as set forth in each of the Credit Agreements on December 23, 1997);
provided that no amendment to, or waiver or modification of, any such
Section or definition shall be effective for purposes of this
Participation Agreement unless such amendment, waiver or modification
has been consented to in writing by each of the Lessors; provided,
further, that if any such amendment, waiver or modification is
consented to by less than all of the Lessors and any non-consenting
Lessor is a Beneficiary (as defined in Section 6.1(m)), such
Beneficiary shall be required to draw under its Letter of Credit and
its vote shall not be considered in connection with such amendment,
waiver or modification. In addition, the Lessee shall deliver to the
Agent and each Lessor the certificate required to be delivered under
Section 6.01(c) of each of the Credit Agreements as in effect on
December 23, 1997, at the times specified in such Section. Such
certificate shall be addressed to the Agent and the Lessors, who shall
be entitled to rely thereon;
(d) Section 11.14 of the Participation Agreement is amended by adding
the following sentence at the end of that section:
The Lessee will deliver to the Agent such Uniform Commercial Code
lien reports and execute and file in all appropriate jurisdictions
within 30 days after December 23, 1997 such appropriate instruments as
are reasonably requested by the Agent in such jurisdictions to perfect
properly (i.e., in the name of Merger Sub) the security interest in
----
the Collateral, subject to no Liens other than Permitted Liens and
demonstrate that Merger Sub is duly qualified to do business in
Maryland and other states in which the Collateral is located.
3. Inducing Representations. As an inducement to the Agent and the
------------------------
Lessors to execute and deliver this Amendment, the Lessee represents and
warrants that (i) immediately before and after giving effect to the Merger and
this Amendment, no default under the Lease or any of the Prior Debt Agreements
(which term for this
3
<PAGE>
purpose shall be deemed to include the Old Credit Agreement prior to the Merger
and the New Credit Agreement after the Merger) shall have occurred and be
continuing, and (ii) it has full corporate power and authority to execute,
deliver and perform its obligations under this Amendment; its execution,
delivery and performance of this Amendment have been duly authorized by all
necessary actions to be taken; and this Amendment constitutes its legal, valid
and binding obligation, enforceable against it in accordance with the terms
hereof, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
4. Effectiveness. This Amendment shall be effective upon the occurrence
-------------
of each of the following:
(a) the execution and delivery of this Amendment by all parties
hereto;
(b) the payment by Lessee of all expenses incurred by the Agent and
the Lessors (including the fees and expenses of Mayer, Brown & Platt,
counsel to the Agent and the Lessors and allocated costs of internal
counsel to the Agent) incurred in connection herewith;
(c) the execution and delivery by the Company to the Agent of the
Guaranty, dated as of December 23, 1997, in the form attached hereto as
Exhibit A;
---------
(d) an Officer's Certificate of Lessee, substantially in the form of
Exhibit B-1 hereto, and an Officer's Certificate of Merger Sub,
-----------
substantially in the form of Exhibit B-2 hereto;
-----------
(e) opinions of counsel to each of Lessee and Merger Sub,
substantially in the form of Exhibits C-1, C-2, C-3 and C-4 hereto; and
------------ --- --- ---
(f) the receipt by the Agent of the Reaffirmation of Obligations dated
as of December 23, 1997, duly executed by Merger Sub in favor of the Agent,
BA Leasing & Capital Corporation, Pitney Bowes Credit Corporation and
Manufacturers Bank, as lessors;
provided, however, that the waiver and consent set forth at Section 1 of this
- -------- -------
Amendment will be deemed effective if all of the foregoing conditions have been
satisfied except for (i) the receipt of the opinion of counsel set forth at
Exhibit C-4, which opinion Lessee and Merger Sub shall cause to be delivered on
- -----------
the date the Merger becomes effective, and (ii) payment by Lessee of all
expenses and allocated costs of internal counsel to be paid under Section 4(b)
of this Amendment other than expenses of Mayer, Brown & Platt, which payments
shall be made within one business day of a statement for such expenses or costs
being rendered.
4
<PAGE>
5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE
CHOICE OF LAW PROVISIONS THEREOF.
6. Counterparts. This Amendment may be executed in any number of
------------
counterparts and by different parties hereto on separate counterparts, each
executed counterpart constituting an original but all together one agreement.
[Remainder of page left intentionally blank]
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
RYKOFF-SEXTON, INC., BA LEASING & CAPITAL
as Lessee CORPORATION, not individually,
but solely as Agent for Lessors
By /s/ Richard J. Martin By /s/ Sonia T. Delen
----------------------------- ------------------------------
Name Printed: Richard J. Martin Name Printed: Sonia T. Delen
------------------ -------------------
Title: Executive Vice President Title: Assistant Vice President
------------------------- --------------------------
By
------------------------------
Name Printed:
-------------------
Title:
--------------------------
HUDSON ACQUISITION CORP.,
as Lessee (successor to Rykoff-
Sexton, Inc.)
By /s/ Lewis Hay, III
-----------------------------
Name Printed: Lewis Hay, III
------------------
Title: Senior Vice President
-------------------------
LESSORS:
- -------
PITNEY BOWES CREDIT BA LEASING & CAPITAL
CORPORATION CORPORATION
By /s/ Russell D. Piper By /s/ Eileen Uyematsu-Harwell
----------------------------- ------------------------------
Name Printed: Russell D. Piper Name Printed: Eileen Uyematsu-Harwell
------------------ -------------------
Title: Region Credit Manager Title: Vice President
------------------------- --------------------------
By
-----------------------------
Name Printed:
------------------
Title:
-------------------------
MANUFACTURERS BANK
By /s/ Gregory J. Hall
-----------------------------
Name Printed: Gregory J. Hall
------------------
Title: Vice President
-------------------------
<PAGE>
EXHIBIT 10.3.8
GUARANTY
--------------------------------------------------------
--------------------------------------------------------
GUARANTY
dated as of December 23, 1997
of
JP FOODSERVICE, INC.
in favor of
BA LEASING & CAPITAL CORPORATION,
not individually, but solely in its capacity as
Agent for the Lessors from time to time
under the Participation Agreement, as Lessors
--------------------------------------------------------
--------------------------------------------------------
<PAGE>
GUARANTY
--------
This GUARANTY (the "Guaranty"), dated as of December 23, 1997, of JP
--------
Foodservice, Inc., a Delaware corporation (the "Guarantor"), is made in favor of
---------
the Beneficiaries (identified below) and delivered to BA Leasing & Capital
Corporation, not individually, but solely in its capacity as agent ("Agent") for
-----
the Lessors ("Lessors") from time to time under the Participation Agreement,
-------
dated as of April 29, 1994, by and among Rykoff-Sexton, Inc., as lessee
("Initial Lessee"), Tone Brothers, Inc., as sublessee ("Sublessee"), the Agent
- ---------------- ---------
and the Lessors as amended by that certain First Amendment to Participation
Agreement, Second Amendment to Participation Agreement, Third Amendment to
Participation Agreement, Waiver, Consent and Fourth Amendment to Participation
Agreement and Lease Amendment and Waiver, Consent and Fifth Amendment to
Participation Agreement (as so amended, the "Participation Agreement").
-----------------------
Capitalized terms used herein without definition shall have the meanings
ascribed to them in Schedule X to the Participation Agreement.
WHEREAS, on the date hereof, Guarantor is the direct beneficial owner of
all the issued and outstanding capital stock of Hudson Acquisition Corp., a
Delaware corporation ("Merger Sub");
----------
WHEREAS, Initial Lessee has entered into an Agreement and Plan of Merger
dated as of June 30, 1997 (as amended, the "Agreement and Plan of Merger") with
----------------------------
Merger Sub, and the Guarantor, pursuant to which Initial Lessee will merge with
and into Merger Sub, with Merger Sub as the surviving entity, which entity in
connection with the Merger (the "Merger") will change its corporate name to
------
Rykoff-Sexton, Inc.;
WHEREAS, Section 6.1(a)(ii) of the Participation Agreement and Section 21.2
of the Lease prohibit the merger of Initial Lessee with or into any other
corporation or entity under certain circumstances;
WHEREAS, in order to induce Agent and the Lessors to agree to the Merger
pursuant to the Agreement and Plan of Merger and the appointment of Merger Sub
as a party to the Participation Agreement, Guarantor is willing to execute this
Guaranty; and
WHEREAS, it is in the best interest of Guarantor to execute this Guaranty
inasmuch as Guarantor will derive substantial direct and indirect benefits from
the transactions contemplated by the Participation Agreement.
1
<PAGE>
NOW, THEREFORE, Guarantor covenants and agrees as follows:
SECTION 1 Guaranty. Guarantor, as primary obligor and not as surety,
--------
hereby unconditionally and irrevocably guarantees to Agent (both individually
and in its capacity as Agent), the Lessors and each other Indemnitee and their
respective successors and assigns (individually, a "Beneficiary" and,
-----------
collectively, the "Beneficiaries") as their respective interests may appear:
-------------
(a) the due, punctual and full payment by Merger Sub and Sublessee (each,
"Lessee" and collectively, "Lessees") of all amounts (including, without
------ -------
limitation, amounts payable as damages in case of default) to be paid by Lessees
pursuant to the Lease, the Participation Agreement, and/or any other Operative
Agreement to which any Lessee is or is to be a party whether such obligations
now exist or arise hereafter, as and when the same shall become due and payable
in accordance with the terms thereof; and (b) the due, prompt and faithful
performance of, and compliance with, all other obligations, covenants, terms,
conditions and undertakings of any Lessee contained in the Participation
Agreement, the Lease or any other Operative Agreements to which any of them is
or is to be a party in accordance with the terms thereof (such obligations
referred to in clauses (a) and (b) above being hereinafter called the
----------- ---
"Obligations"). Guarantor further agrees to pay any and all costs and expenses
- ------------
(including reasonable fees and disbursements of counsel) that may be paid or
incurred by any Beneficiary in collecting any Obligations and/or in preserving
or enforcing any rights under this Guaranty or under the Obligations.
The Guaranty is a guaranty of payment, performance and compliance and not
of collectability, is in no way conditioned or contingent upon any attempt to
collect from or enforce performance or compliance by any Lessee or upon any
other event, contingency or circumstance whatsoever, and shall be binding upon
and against Guarantor without regard to the validity or enforceability of the
Lease, the Participation Agreement or any other Operative Agreement.
If for any reason whatsoever Lessees shall fail or be unable duly,
punctually and fully to pay such amounts as and when the same shall become due
and payable or to perform or comply with any such obligation, covenant, term,
condition or undertaking, Guarantor will immediately pay or cause to be paid
such amounts to the Person or Persons entitled to receive the same (according to
their respective interests) under the terms of the Operative Agreements, as
appropriate, or perform or comply with any such obligation, covenant, term,
condition or undertaking or cause the same to be performed or complied with,
together with interest on any amount due and owing from the date the same shall
have become due and payable to the date of payment.
SECTION 2 Guarantor's Obligations Unconditional. The covenants and
-------------------------------------
agreements of Guarantor set forth in this Guaranty shall be primary obligations
of Guarantor, and such obligations shall be continuing, absolute and
unconditional,
2
<PAGE>
shall not be subject to any counterclaim, setoff, deduction, diminution,
abatement, recoupment, suspension, deferment, reduction or defense (other than
full and strict compliance by Guarantor with its obligations hereunder), whether
based upon any claim that any Lessee, Guarantor, or any other Person may have
against any Beneficiary or any other Person or otherwise, and shall remain in
full force and effect without regard to, and shall not be released, discharged
or in any way affected by, any circumstance or condition whatsoever (whether or
not Guarantor or any Lessee shall have any knowledge or notice thereof)
including, without limitation:
(a) any amendment, modification, addition, deletion, supplement or renewal
to or of or other change in the Obligations or any Operative Agreement
or any of the agreements referred to in any thereof, or any other
instrument or agreement applicable to any Operative Agreement or any
of the parties to such agreements, or to the Collateral, or any
assignment, mortgage or transfer thereof or of any interest therein,
or any furnishing or acceptance of additional security for, guaranty
of or right of offset with respect to, any of the Obligations; or the
failure of any security or the failure of any Beneficiary to perfect
or insure any interest in any Collateral; or the release or surrender
of possession by any Beneficiary of any Collateral;
(b) any failure, omission or delay on the part of Lessees or any
Beneficiary to conform or comply with any term of any instrument or
agreement referred to in clause (a) above;
----------
(c) any waiver, consent, extension, indulgence, compromise, release or
other action or inaction under or in respect of any instrument,
agreement, guaranty, right of offset or security referred to in clause
------
(a) above or any obligation or liability of Lessees or any
---
Beneficiary, or any exercise or non-exercise by any Beneficiary of any
right, remedy, power or privilege under or in respect of any such
instrument, agreement, guaranty, right of offset or security or any
such obligation or liability;
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding with respect to any
Lessee, any Beneficiary or any other Person or any of their respective
properties or creditors, or any action taken by any trustee or
receiver or by any court in any such proceeding;
(e) any limitation on the liability or obligations of any Person under the
Lease or any other Operative Agreement, the Obligations, any
collateral security for the Obligations or any other guaranty of the
3
<PAGE>
Obligations or any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part, of
any of the foregoing, or any other agreement, instrument, guaranty or
security referred to in clause (a) above or any term of any thereof;
----------
(f) any defect in the title, compliance with specifications, condition,
design, operation or fitness for use of, or any damage to or loss or
destruction of, or any interruption or cessation in the use of the
Collateral by Lessees or any other Person for any reason whatsoever
(including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on
the part of any governmental or military authority, or any act of God
or of the public enemy) regardless of the duration thereof (even
though such duration would otherwise constitute a frustration of a
lease), whether or not resulting from accident and whether or not
without fault on the part of Lessees or any other Person;
(g) any merger or consolidation of any Lessee or Guarantor into or with
any other Person or any sale, lease or transfer of any of the assets
of any Lessee or Guarantor to any other Person;
(h) any change in the ownership of any shares of capital stock of any
Lessee, or any corporate change in any Lessee; or
(i) any other occurrence or circumstance whatsoever, whether similar or
dissimilar to the foregoing and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or that might otherwise limit
recourse against Guarantor.
The obligations of Guarantor set forth herein constitute the full recourse
obligations of Guarantor enforceable against it to the full extent of all its
assets and properties, notwithstanding any provision in the Participation
Agreement or any other agreements limiting the liability of any Beneficiary or
any other Person, or any agreement by Agent to look for payment with respect
thereto, solely to the Collateral.
SECTION 3 Waiver and Agreement. Guarantor waives any and all notice of
--------------------
the creation, renewal, extension or accrual of any of the Obligations and notice
of or proof of reliance by any Beneficiary upon this Guaranty or acceptance of
this Guaranty, and the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred in reliance upon this
Guaranty. Guarantor unconditionally waives, to the extent permitted by law: (a)
acceptance of this Guaranty and proof of reliance by any Beneficiary hereon; (b)
notice of any
4
<PAGE>
of the matters referred to in Section 2 hereof, or any right to consent or
---------
assent to any thereof; (c) all notices that may be required by statute, rule of
law or otherwise, now or hereafter in effect, to preserve intact any rights
against Guarantor, including without limitation, any demand, presentment,
protest, proof or notice of nonpayment under the Participation Agreement, the
Lease or any other Operative Agreement, and notice of default or any failure on
the part of any Lessee to perform and comply with any covenant, agreement, term
or condition of the Participation Agreement, the Lease or any other Operative
Agreement; (d) any right to the enforcement, assertion or exercise against any
Lessee of any right, power, privilege or remedy conferred in the Participation
Agreement, the Lease or any other Operative Agreement or otherwise; (e) any
requirement of diligence on the part of any Person; (f) any requirement of any
Beneficiary to take any action whatsoever, to exhaust any remedies or to
mitigate the damages resulting from a default by any Person under the
Participation Agreement, the Lease or any other Operative Agreement; (g) any
notice of any sale, transfer or other disposition by any Person of any right
under, title to or interest in the Participation Agreement, the Lease any other
Operative Agreement or the Collateral; (h) any and all benefits under California
Civil Code Sections 2809, 2810, 2819, 2822, 2825, 2845, 2846, 2847, 2848, 2849,
2850, 2899 and 3433 and California Code of Civil Procedure Sections 580a, 580b,
580d and 726; and (i) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge, release or defense of a guarantor or
surety, or that might otherwise limit recourse against Guarantor.
Guarantor agrees that this Guaranty shall be automatically reinstated if
and to the extent that for any reason any payment by or on behalf of Lessees is
rescinded or must be otherwise restored by any of the Beneficiaries, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise.
Guarantor further agrees that, without limiting the generality of this
Guaranty, if an Event of Default shall have occurred and be continuing and Agent
is prevented by applicable law from exercising its remedies under the Lease,
Agent shall be entitled to receive hereunder from Guarantor, upon demand
therefor, the sums which would have otherwise been due from Lessees had such
remedies been exercised.
SECTION 4 Waiver of Subrogation. Guarantor hereby irrevocably waives any
---------------------
claim or other rights which it may now or hereafter acquire against any Lessee
that arise from the existence, payment, performance or enforcement of
Guarantor's obligations under this Guaranty or any other Operative Agreement,
including any right of subrogation, reimbursement, exoneration, or
indemnification, any right to participate in any claim or remedy of the
Beneficiaries against any Lessee or any Collateral which Agent now has or
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including the right to take or receive
from any Lessee, directly or indirectly, in cash
5
<PAGE>
or other property or by set-off or in any manner, payment or security on account
of such claim or other rights. If any amount shall be paid to Guarantor in
violation of the preceding sentence and the Obligations shall not have been
indefeasibly paid in cash, such amount shall be deemed to have been paid to
Guarantor for the benefit of, and held in trust for, the Beneficiaries, and
shall forthwith be paid to Agent to be credited and applied pursuant to the
terms of the Participation Agreement and the Lease. Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by the Participation Agreement and that the waiver set forth in
this Section 4 is knowingly made in contemplation of such benefits. Guarantor
---------
hereby absolutely, unconditionally and irrevocably waives and agrees not to
assert or take advantage of any defense based upon an election of remedies by
Agent, including an election to proceed by non-judicial rather than judicial
foreclosure, which destroys or impairs any right of subrogation of Guarantor or
the right of Guarantor to proceed against any Person for reimbursement or both.
SECTION 5 Rights of the Beneficiaries. This Guaranty is made for the
---------------------------
benefit of, and shall be enforceable by, each Beneficiary as its interest may
appear.
SECTION 6 Term of Guaranty. This Guaranty and all guaranties, covenants
----------------
and agreements of Guarantor contained herein shall continue in full force and
effect and shall not be discharged until such time as all the Obligations shall
be indefeasibly paid in full in cash and all the agreements of Guarantor and
each other Lessee hereunder and under the Lease, the Participation Agreement and
the other Operative Agreements shall have been duly performed. If, as a result
of any bankruptcy, dissolution, reorganization, insolvency, arrangement or
liquidation proceedings (or proceedings similar in purpose or effect) or if for
any other reason, any payment received by any Beneficiary in respect of the
Obligations is rescinded or must be returned by such Beneficiary, this Guaranty
shall continue to be effective as if such payment had not been made and, in any
event, as provided in the preceding sentence.
SECTION 7 Notices, Amendments, etc. All notices, demands, requests,
-------------------------
consents, approvals and other instruments hereunder shall be in writing and
shall be deemed to have been properly given if given as provided for in Section
-------
11.4 of the Participation Agreement. No provision of this Guaranty may be
- ----
amended, modified, supplemented or waived except as provided in Sections 10.1
-------------
and 10.2 of the Participation Agreement.
- --------
SECTION 8 Severability of this Guaranty. In case any provisions of this
-----------------------------
Guaranty or any application thereof shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions and
statements and any other application thereof shall not in any way be affected or
impaired thereby. To the extent permitted by law, Guarantor hereby waives any
provision of law that renders any term or provision hereof invalid or
unenforceable in any respect.
6
<PAGE>
SECTION 9 Further Assurances. Guarantor hereby agrees to execute and
------------------
deliver all such instruments and take all such action as Agent or any other
Beneficiary may from time to time reasonably request in order to fully
effectuate the purposes of this Guaranty.
SECTION 10 Financial Statements. Guarantor agrees to provide to each of
--------------------
the Lessors and to Agent the financial statements and reports in the form and
substance and at such times as required at Sections 6.01(a) through (f) of the
Credit Agreement (as that term is defined in the Participation Agreement) as in
effect on December 23, 1997, which covenants are incorporated herein by
reference as set forth in full (together with the definitions of all terms used
in such sections in the Credit Agreement on December 23, 1997); provided, that
--------
no amendment to waiver or modification of any such section or definition shall
be effective for purposes of this Guaranty unless such amendment, waiver or
modification has been consented to in writing by each of the Lessors.
Notwithstanding the foregoing, Guarantor shall have satisfied the foregoing
obligation to provide financial statements and reports if it provides such
financial statements and reports in the above-required form and dates to Lessors
or Agents in their capacities as Lenders under the Credit Agreement.
SECTION 11 Miscellaneous. THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED
-------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE. This Guaranty
shall be binding upon Guarantor and its successors, transferees and assigns and
inure to the benefit of and be enforceable by the respective successors,
transferees, and assigns of the Beneficiaries, provided, however, that Guarantor
-------- -------
may not assign any of its obligations hereunder without the prior written
consent of Agent and each Participant. The table of contents and headings in
this Guaranty are for purposes of reference only, and shall not limit or
otherwise affect the meaning hereof. This Guaranty may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each executed counterpart constituting an original, but all of which together
shall constitute one agreement.
7
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of
the date first above written.
JP FOODSERVICE, INC.
By: /s/ Lewis Hay, III
--------------------------------------------
Name Printed: Lewis Hay, III
----------------------------------
Title: Executive Vice President
-----------------------------------------
<PAGE>
EXHIBIT 10.7.2
AMENDMENT, CONSENT AND ASSUMPTION AGREEMENT
-------------------------------------------
THIS AMENDMENT, CONSENT AND ASSUMPTION, dated as of December 18, 1997,
(this "Agreement"), by and among RYKOFF-SEXTON, INC., a Delaware corporation
("RSI"), HUDSON ACQUISITION CORP., a Delaware corporation ("Hudson"), and THE
FIRST NATIONAL BANK OF CHICAGO (the "Bank").
RECITALS
--------
A. RSI and the Bank have entered into a Reimbursement Agreement, dated as
of November 1, 1996 (as amended or modified and in effect, the "Reimbursement
Agreement"), pursuant to which the Bank has issued its irrevocable direct pay
letter of credit to secure payment of amounts payable on certain Bonds issued by
La Mirada Industrial Development Authority;
B. RSI, Hudson, and JP Foodservice, Inc., a Delaware corporation
("JPFI"), have entered into an Agreement and Plan of Merger, dated as of June
30, 1997 (as amended by Amendment No. 1, dated as of September 3, 1997, and
Amendment No. 2, dated as of November 5, 1997, the "Merger Agreement"), pursuant
to Section 1.1 of which RSI will merge with and into Hudson (the "Merger"); and
C. RSI has requested that the Bank consent to the Merger and the Bank has
agreed to provide such consent so long as Hudson assumes the Obligations of RSI
under and in connection with the Reimbursement Agreement and the Related
Documents, and RSI and the Bank further desire to amend the Reimbursement
Agreement in certain respects as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used herein, including in the
-------------
Recitals, shall have the meanings ascribed to them in the Reimbursement
Agreement, as hereby amended, unless otherwise defined herein.
2. Consents. Subject to Section 3 hereof and effective as of the Amendment
--------
Effective Date (as defined below), the Bank hereby consents to the Merger
pursuant to Section 1.1 of the Merger Agreement and waives any Default or Event
of Default under Sections 5.2(a), 5.2(e), 5.2(f) and 5.2(g) of the Reimbursement
Agreement that may occur, or may have occurred, as a result of the execution of
the Merger Agreement, and the performance of the obligations of RSI thereunder,
and of the Merger.
<PAGE>
3. Assumption. Effective as of the Effective Time (as defined in the Merger
----------
Agreement), Hudson hereby assumes direct and primary liability for the
performance and payment of all of the Obligations and Hudson agrees to be bound
by the terms and provisions of the Reimbursement Agreement, as hereby amended,
and the Related Documents as fully as if it had originally been a party thereto.
From and after the Effective Time, all references to the "Company" in the
Reimbursement Agreement shall be deemed to be references to Hudson.
4. Release. Effective as of the Amendment Effective Date, the Bank hereby
-------
agrees to release and discharge its lien on and security interests in the
collateral described in the Deed of Trust, the Security Agreement, and the
Financing Statement. The Bank further agrees that it will execute and deliver
such additional documents, in form and substance satisfactory to the Bank, as
are reasonably required to effect such release and discharge with respect to the
Deed of Trust, the Security Agreement and the Financing Statement.
5. Amendments to the Reimbursement Agreement. Effective as of the Amendment
-----------------------------------------
Effective Date, the Reimbursement Agreement is amended as follows:
(a) For the period from the Amendment Effective Date through and
including March 31, 1998 only, the Reimbursement Agreement is amended as
follows:
(i) The phrase "one quarter of one percent (.25%)" appearing in
the second line of Section 2.3(a) of the Reimbursement Agreement is deleted and
replaced with the phrase "five hundredths of one percent (0.05%)"; and
(ii) The phrase "one and three-quarters of one percent (1.75%)"
appearing in the second and third lines of Section 2.3(b) of the Reimbursement
Agreement is deleted and replaced with the phrase "six hundred twenty-five
thousandths of one percent (0.625%)".
(b) From and after the Amendment Effective Date, the definition
"Applicable Margin" appearing in Section 1.1 of the Reimbursement Agreement is
deleted and replaced with the following definition: "Applicable Margin" means
(i) for the period from December 18, 1997 through and including March 31, 1998,
0.625% per annum, and (ii) thereafter, 2.50% per annum.
(c) From and after the Amendment Effective Date, the definition "Bank
Security Documents" appearing in Section 1.1 of the Reimbursement Agreement is
amended by deleting the references therein to the definitions "the Deed of
Trust", "the Security Agreement", and "the Financing Statement".
6. Representations and Warranties of RSI. In order to induce the Bank to
-------------------------------------
enter into this Agreement, RSI represents and warrants to the Bank that:
(a) (i) The execution, delivery and performance of this Agreement by
RSI have been duly authorized by all necessary corporate action and does not and
will not require any consent or approval of its stockholders, violate any
provision of any law, rule, regulation, order, writ,
2
<PAGE>
judgment, injunction, decree, termination or award presently in effect having
applicability to it or of its certificate of incorporation or bylaws, or result
in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which RSI is a party or
by which it or its properties may be bound or affected; (ii) no authorization,
consent, approval, license, exemption of or filing a registration with any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or will be necessary to the valid
execution, delivery or performance by RSI of this Agreement; and (iii) this
Agreement is a legal, valid and binding obligation of RSI enforceable against
RSI in accordance with its terms.
(b) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Article 4 of the
Reimbursement Agreement are true and correct on and as of the Amendment
Effective Date with the same force and effect as if made on and as of the
Amendment Effective Date, except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such
earlier date.
(c) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Section 3.1 of the
Merger Agreement are true and correct on and as of the Amendment Effective Date
with the same force and effect as if made on and as of the Amendment Effective
Date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
(d) No Default or Event of Default has occurred and is continuing or
will exist under the Reimbursement Agreement as of the Amendment Effective Date.
(e) A true and correct copy of the Merger Agreement, together with all
amendments and modifications thereto, has been delivered to the Bank, the Merger
Agreement is in full force and effect, and no steps have been taken to terminate
the Merger Agreement pursuant to Section 7.1 thereof.
7. Representations and Warranties of Hudson. In order to induce the Bank to
----------------------------------------
enter into this Agreement, Hudson represents and warrants to the Bank that:
(a) (i) The execution and delivery of this Agreement and the
performance of this Agreement, the Reimbursement Agreement and the Related
Documents by Hudson have been duly authorized by all necessary corporate action
and does not and will not require any consent or approval of its stockholders,
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, termination or award presently in effect having
applicability to it or of its certificate of incorporation or bylaws, or result
in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which Hudson is a party
or by which it or its properties may be bound or affected; (ii) except as
provided in the Merger Agreement, no authorization, consent, approval, license,
exemption of
3
<PAGE>
or filing a registration with any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, is or will be
necessary to the valid execution, delivery or performance by Hudson of this
Agreement, the Reimbursement Agreement and the Related Documents; and (iii) this
Agreement is, and upon its assumption of the Obligations of RSI under the
Reimbursement Agreement and the Related Documents pursuant hereto, the
Reimbursement Agreement and Related Documents will be, a legal, valid and
binding obligation of Hudson enforceable against Hudson in accordance with its
terms.
(b) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Section 3.2 of the
Merger Agreement are true and correct on and as of the Amendment Effective Date
with the same force and effect as if made on and as of the Amendment Effective
Date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
(c) The Merger Agreement is in full force and effect and no steps have
been taken to terminate the Merger Agreement pursuant to Section 7.1 thereof.
8. Conditions Precedent. This Agreement shall become effective as of the
--------------------
date first above written (the "Amendment Effective Date") upon receipt by the
Bank of (i) counterparts of this Agreement duly executed by RSI, Hudson and the
Bank and (ii) a written opinion of Hudson's counsel, addressed to the Bank and
in form and substance satisfactory to the Bank.
9. Ratification. Except as expressly contemplated hereby, the Reimbursement
------------
Agreement and all Related Documents are hereby ratified and confirmed in all
respects and shall remain in full force and effect, and RSI acknowledges that it
has no defense, offset or counterclaim thereunder.
10. Reference to Reimbursement Agreement. From and after the Amendment
------------------------------------
Effective Date, each reference in the Reimbursement Agreement to "this
Agreement", "hereof", or "hereunder" or words of like import, and all references
to the Reimbursement Agreement in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and nature shall
be deemed to mean the Reimbursement Agreement as amended by this Agreement.
11. Execution in Counterparts. This Agreement may be executed in any number
-------------------------
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
12. Severability. In case any one or more of the provisions contained in this
------------
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
4
<PAGE>
13. Governing Law. This Agreement and the Reimbursement Agreement, as amended
-------------
hereby, shall be construed in accordance with and governed by the internal laws
of the State of California, without regard to conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
RYKOFF-SEXTON, INC.
By: /s/ Richard J. Martin
---------------------------------------
Its: Executive Vice President
and Chief Financial Officer
-----------------------------------
HUDSON ACQUISITION CORP.
By: /s/ David M. Abramson
---------------------------------------
Its: Senior Vice President
-----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Amy L. Robbins
---------------------------------------
Its: Vice President
----------------------------------
RECEIPT ACKNOWLEDGED BY:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee under the Loan Agreement
By: /s/ Shafiq Jadavji
-----------------------------------
Its: Assistant Treasurer
-----------------------------------
5
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