$2,200,000,000
CREDIT AGREEMENT
dated as of
July 19, 1994
among
Fleming Companies, Inc.,
The Banks Listed Herein,
Bank of America National Trust and
Savings Association
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Credit Suisse
Deutsche Bank AG New York Branch
The Fuji Bank, Limited
NationsBank of Texas, N.A.
Societe Generale, Southwest Agency
The Sumitomo Bank Ltd. Houston Agency
Texas Commerce Bank, National Association
The Toronto-Dominion Bank
and
Union Bank of Switzerland, Houston Agency
as Agents
and
Morgan Guaranty Trust Company of New York,
as Managing Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . 1
1.02 Accounting Terms and Determinations . . . 23
1.03 Use of Ratings . . . . . . . . . . . . . 24
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Lend . . . . . . . . . . . . 24
2.02 Notice of Borrowings. . . . . . . . . . . 27
2.03 Notice to Banks; Funding of Loans . . . . 28
2.04 Notes . . . . . . . . . . . . . . . . . . 29
2.05 Interest Rates. . . . . . . . . . . . . . 30
2.06 Method of Electing Interest Rates . . . . 35
2.07 Fees. . . . . . . . . . . . . . . . . . . 37
2.08 Optional Termination or Reduction
of Tranche A Commitments by
the Borrower. . . . . . . . . . . . . . 40
2.09 Maturity of Loans; Mandatory
Prepayments . . . . . . . . . . . . . . 40
2.10 Optional Prepayments. . . . . . . . . . . 43
2.11 Optional Termination of Commitment
on Non-Pro Rata Basis . . . . . . . . . 44
2.12 General Provisions as to Payments . . . . 48
2.13 Funding Losses. . . . . . . . . . . . . . 49
2.14 Computation of Interest and Fees. . . . . 50
2.15 Regulation D Compensation . . . . . . . . 50
2.16 Letters of Credit . . . . . . . . . . . . 50
ARTICLE III
CONDITIONS TO BORROWINGS, ISSUANCES OF
LETTERS OF CREDIT AND EFFECTIVENESS
SECTION 3.01 Conditions to All Borrowings and
Issuances of Letters of Credit . . . . 54
3.02 Conditions to Effectiveness . . . . . . . 55
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power . . . . . . . 58
4.02 Corporate and Governmental
Authorization; Contravention. . . . . . 58
4.03 Binding Effect. . . . . . . . . . . . . . 59
4.04 Financial Information . . . . . . . . . . 59
4.05 Litigation. . . . . . . . . . . . . . . . 59
4.06 Compliance with ERISA . . . . . . . . . . 60
4.07 Environmental Matters . . . . . . . . . . 60
4.08 Taxes . . . . . . . . . . . . . . . . . . 61
4.09 Subsidiaries. . . . . . . . . . . . . . . 61
4.10 Not an Investment Company . . . . . . . . 62
4.11 No Conflicting Requirements . . . . . . . 62
4.12 Haniel Transaction. . . . . . . . . . . . 62
4.13 Disclosure. . . . . . . . . . . . . . . . 63
4.14 Guarantee Requirement; Certain
Collateral and Other Matters . . . .. . 63
ARTICLE V
COVENANTS
SECTION 5.01 Information . . . . . . . . . . . . . . . . 64
5.02 Payment of Obligations. . . . . . . . . . 67
5.03 Maintenance of Property; Insurance. . . . 67
5.04 Conduct of Business and
Maintenance of Existence. . . . . . . . 68
5.05 Compliance with Laws. . . . . . . . . . . 68
5.06 Inspection of Property,
Books and Records . . . . . . . . . . . 68
5.07 Leverage Ratio. . . . . . . . . . . . . . 69
5.08 Minimum Consolidated Net Worth . . . . . 69
5.09 Fixed Charge Coverage Ratio . . . . . . . 69
5.10 Negative Pledge . . . . . . . . . . . . . 70
5.11 Mergers, Consolidations and
Sales of Assets . . . . . . . . . . . . 72
5.12 Use of Any and All Proceeds . . . . . . . 73
5.13 Debt. . . . . . . . . . . . . . . . . . . 74
5.14 Restricted Payments . . . . . . . . . . . 76
5.15 Transactions with Affiliates. . . . . . . 77
5.16 Capital Expenditures. . . . . . . . . . . 78
5.17 Acquisitions and Investments . . . . . . 78
5.18 Interest Rate Protection. . . . . . . . . 81
5.19 Guarantee Requirement; Other
Collateral Matters. . . . . . . . . . . 81
5.20 Limitation on Payment Restrictions
Affecting Subsidiaries. . . . . . . . . 82
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default . . . . . . . . . . . . 82
6.02 Notice of Default . . . . . . . . . . . . 85
6.03 Cash Cover. . . . . . . . . . . . . . . . 85
ARTICLE VII
THE MANAGING AGENT AND THE AGENTS
SECTION 7.01 Appointment and Authorization . . . . . . . 86
7.02 Managing Agent, Agents and Affiliates . . 86
7.03 Action by Managing Agent and Agents . . . 86
7.04 Consultation with Experts . . . . . . . . 86
7.05 Liability of Managing Agent and Agents. . 87
7.06 Indemnification . . . . . . . . . . . . . 87
7.07 Credit Decision . . . . . . . . . . . . . 87
7.08 Successor Managing Agent and Agents . . . 88
7.09 Managing Agent's Fees . . . . . . . . . . 88
7.10 Collateral Agent. . . . . . . . . . . . . 88
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest
Rate Inadequate or Unfair . . . . . . . 88
8.02 Illegality. . . . . . . . . . . . . . . . 89
8.03 Increased Cost and Reduced Return . . . . 90
8.04 Base Rate Loans Substituted for
Affected Fixed Rate Loans . . . . . . . 92
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices . . . . . . . . . . . . . . . . . . 93
9.02 No Waivers. . . . . . . . . . . . . . . . 93
9.03 Expenses; Documentary Taxes;
Indemnification . . . . . . . . . . . . 93
9.04 Amendments and Waivers. . . . . . . . . . 94
9.05 Successors and Assigns. . . . . . . . . . 95
9.06 Collateral. . . . . . . . . . . . . . . . 97
9.07 Governing Law; Submission to Juris-
diction; Waiver of Jury Trial . . . . . 97
9.08 Counterparts; Integration . . . . . . . . 97
9.09 Sharing of Set-Offs . . . . . . . . . . . 97
Schedule 1 - Commitments
Schedule 2 - Existing Liens
Schedule 3 - Certain Legal Proceedings
Schedule 4 - Exceptions to ERISA Compliance
Schedule 5 - Existing Fleming Debt
Schedule 6 - Existing Haniel Debt
Schedule 7(a) - Initial Guaranteeing Subsidiaries
Schedule 7(b) - Subsidiaries Directly or Indirectly Owning
Capital Stock of any Initial Guaranteeing
Subsidiary
Schedule 8 - Collateral Subsidiaries Owning Inventory or
Receivables (other than only Excepted
Inventory
or Excepted Receivables or Intercompany
Receivables)
Schedule 9 - Scrivner Subsidiaries Treated as Equity Stores
or Business Development Ventures
Schedule 10 - Permitted Institutions for Syndication
Schedule 11 - Certain Permitted Investments
Schedule 12 - Certain Stores Held for Sale
Schedule 13 - Certain Multiemployer Plan Liabilities
Exhibit A-1 - Tranche A Note
Exhibit A-2 - Tranche B Note
Exhibit A-3 - Tranche C Note
Exhibit A-4 - Swingline Note
Exhibit B-1 - Opinion of Special Counsel for the Borrower
Exhibit B-2 - Opinion of General Counsel for the Borrower
Exhibit C - Opinion of Special Counsel for the Managing
Agent
Exhibit D - Form of Assignment and Assumption Agreement
Exhibit E - Form of Notice of Borrowing
Exhibit F - Form of Subsidiary Guarantee Agreement
Exhibit G-1 - Form of Borrower Pledge Agreement
Exhibit G-2 - Form of Subsidiary Pledge Agreement
Exhibit H-1 - Form of Borrower Security Agreement
Exhibit H-2 - Form of Subsidiary Security Agreement
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 19, 1994 among FLEMING
COMPANIES, INC. (the "Borrower"), the BANKS listed on the
signature
pages hereof, the AGENTS listed on the signature pages hereof
(the
"Agents") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Managing Agent (the "Managing Agent").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"1989 ESOP" means that portion of the Consolidated Savings
Plus and Stock Ownership Plan for Fleming Companies, Inc. and its
Subsidiaries, effective September 1, 1989, entitled "Fleming
Stock
Ownership Plan", or any similar stock ownership plan for the sole
benefit of employees of the Borrower and its Subsidiaries.
"Acquisition" means (i) an investment by the Borrower or
any
of its Subsidiaries in any Person (other than the Borrower or any
of its Subsidiaries) pursuant to which such Person shall become a
Subsidiary or shall be merged into or consolidated with the
Borrower or any of its Subsidiaries or (ii) an acquisition by
the
Borrower or any of its Subsidiaries of the property and assets of
any Person (other than the Borrower or any of its Subsidiaries)
that constitute substantially all of the assets of such Person or
of any division or line of business of such Person.
"Adjusted CD Rate" has the meaning set forth in Section
2.05(b).
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire prepared by the Managing
Agent and submitted to the Managing Agent (with a copy to the
Borrower) duly completed by such Bank.
"Affiliate" means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person") or (ii) any Person (other than
the Borrower or a Subsidiary) which is controlled by or is under
common control with a Controlling Person. As used herein, the
term
"control" means possession, directly or indirectly, of the power
to
direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Applicable Lending Office" means, with respect to any
Bank,
(i) in the case of its Domestic Loans, its Domestic Lending
Office
and (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
Lending Office.
"Assessment Rate" has the meaning set forth in Section
2.05(b).
"Asset Sale" means (i) any sale, transfer or other
disposition of all or substantially all of the capital stock of
any
Subsidiary (including, without limitation, the merger of any
Subsidiary with or into any Person other than the Borrower or any
Wholly-Owned Subsidiary) to any Person other than the Borrower or
any Wholly-Owned Subsidiary or (ii) any sale, transfer or other
disposition of any other property or asset of the Borrower or any
Subsidiary to any Person other than the Borrower or any Wholly-
Owned Subsidiary, other than any sale, transfer or other
disposition of: (A) any current asset in the ordinary course of
business; (B) any property or assets in connection with a
Permitted
Receivables Financing; (C) any property or assets within 180 days
after the acquisition, or completion of construction, thereof, to
a Person other than the Borrower or a Subsidiary who then leases
such property to the Borrower or a Subsidiary; (D) existing
property or assets in consideration (in whole or in part) for the
acquisition of new property or assets of a similar character in
the
ordinary course of business; or (E) any other property or assets
in
the ordinary course of business if the total consideration
received
by the Borrower and its Subsidiaries in respect thereof and any
property or assets sold concurrently or in a related transaction
or
series of transactions does not exceed $40,000.
"Assignee" has the meaning set forth in Section 9.05(c).
"Available Commitment" means, at any date, the excess of
(i)
the aggregate amount of the Commitments on such date over (ii)
the
aggregate principal amount of Loans and, in the case of Tranche
A,
Letter of Credit Liabilities, outstanding on such date.
"Availability Period" means, with respect to Tranche B and
Tranche C Loans, the period from the date hereof to and including
the date which is 60 days thereafter.
"Bank" means each bank listed in Schedule 1 hereof as
having
a Commitment, unless and until the Commitment of such Bank is
terminated pursuant to Section 2.11(c), each Assignee that
becomes
a Bank pursuant to Section 9.05(c), each bank that becomes a
party
to this Agreement pursuant to Section 2.11(e) and their
respective
successors and shall include, as the context may require, each
Issuing Bank and the Swingline Bank in such capacities.
"Base Rate" means, for any day, a rate per annum equal to
the higher of (i) the Prime Rate for such day and (ii) the sum of
1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Borrowing or
Notice of Interest Rate Election or Section 2.01(d) or the
provisions of Article VIII or (ii) an overdue amount which was a
Base Rate Loan immediately before it became overdue.
"Base Rate Margin" has the meaning set forth in Section
2.05(a).
"Benefit Arrangement" means at any time an employee
benefit
plan within the meaning of Section 3(3) of ERISA which is not a
Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.
"Borrower" means Fleming Companies, Inc., an Oklahoma
corporation, and its successors.
"Borrower Designated Date" has the meaning set forth in
Section 2.11(a).
"Borrower's Knowledge" shall mean the knowledge of any
executive officer of the Borrower or any other employee of the
Borrower charged with the responsibility of administering this
Agreement, provided that with respect to any representations or
warranties made by the Borrower in Article III as they relate to
Haniel Corporation and its Subsidiaries, "Borrower's Knowledge"
shall also mean the knowledge gained by any officer of the
Borrower
regarding Haniel and its Subsidiaries prior to the Effective
Date.
"Borrower's 1993 Form 10-K" means the Borrower's annual
report on Form 10-K for 1993, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Borrower Special Charges" means the charges to the
Borrower's earnings in December 1993 relating to (i) facilities
consolidation and restructuring, as approved by the board of
directors of the Borrower at a meeting on January 17, 1994 and
(ii)
the extraordinary loss from the early retirement of debt, as
approved by the board of directors of the Borrower at a meeting
on
December 15, 1993.
"Borrowing" means a borrowing hereunder consisting of
Loans
made to the Borrower at the same time by the Banks pursuant to
Article II. A Borrowing is a "Domestic Borrowing" if such Loans
are Domestic Loans or a "Euro-Dollar Borrowing" if such Loans are
Euro-Dollar Loans. A Domestic Borrowing is a "CD Borrowing" if
such Domestic Loans are CD Loans or a "Base Rate Borrowing" if
such
Domestic Loans are Base Rate Loans.
"Business Development Program" means the business practice
of the Borrower and its Subsidiaries of making or guaranteeing
loans to, or making equity investments in, third parties engaged
in
the retail grocery business in exchange for long-term supply
agreements with the Borrower or any Subsidiary.
"Business Development Venture" means any Person
participating in the Business Development Program and any Person
listed on Schedule 9.
"Capital Expenditures" means for any period and with
respect
to any Person, the gross amount of additions
to property, plant and equipment and other capital expenditures
of
such Person during such period, as reflected in the statement of
cash flows for such period of such Person; provided that any
transaction that constitutes an Acquisition or an Investment
shall
not be treated as a Capital Expenditure.
"CD Base Rate" has the meaning set forth in Section
2.05(b).
"CD Loan" means (i) a Loan which bears interest at a CD
Rate
pursuant to the applicable Notice of Borrowing or Notice of
Interest Rate Election or (ii) an overdue amount which was a CD
Loan immediately before it became overdue.
"CD Margin" has the meaning set forth in Section 2.05(b).
"CD Rate" means a rate of interest determined pursuant to
Section 2.05(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means Union Bank of Switzerland, The
Bank of Nova Scotia and Morgan Guaranty Trust Company of New York
and each such other bank as may be appointed pursuant to Section
9.05(f).
"Collateral Agent" means Morgan Guaranty Trust Company of
New York in its capacity as Collateral Agent under the Security
Documents and its successors in such capacity.
"Collateral Requirement" means at any date that all
Inventory and Receivables owned by the Borrower or any Collateral
Subsidiary (other than Excepted Inventory and Excepted
Receivables)
is Pledged, provided that (i) Inventory and Receivables with an
aggregate book value not exceeding $25,000,000 (apart from any
Excepted Inventory and Excepted Receivables and any Intercompany
Receivables) may at any time be not Pledged without causing the
Collateral Requirement not to be met and (ii) Inventory and
Receivables with an aggregate book value exceeding $25,000,000
but
not exceeding $75,000,000 (in each case apart from any Excepted
Inventory and Excepted Receivables and any Intercompany
Receivables) may at any time be not Pledged without causing the
Collateral Requirement not to be met so long as (A) the Borrower
has not willfully failed to Pledge or caused to be Pledged such
Inventory and Receivables and (B) the Borrower, upon the
occurrence
of Borrower's Knowledge that any such Inventory or Receivables is
not Pledged, promptly initiates and within 30 days completes or
causes to be completed all such actions as may be necessary to
cause such Inventory or Receivables to be Pledged and provided
further that in any event the Collateral Requirement shall not
fail
to be met merely because a Collateral Subsidiary that owns no
Inventory and owns only Receivables of the character described in
Excepted Inventory and Excepted Receivables or Intercompany
Receivables did not Pledge its Receivables.
"Collateral Subsidiary" means a Subsidiary that is neither
an Equity Store nor a Business Development Venture.
"Commitment" means (except as provided in the definitions
of "Tranche A", "Tranche B" and "Tranche C"), with respect to
each
Bank, the amount set forth opposite the name of such Bank on
Schedule 1 hereto as its Total Commitment as such amount may be
reduced from time to time pursuant to Sections 2.08, 2.11 and
9.05(c) or may be increased from time to time pursuant to Section
2.11.
"Commitment Increase" has the meaning set forth in Section
2.11(b)(iv).
"Commitment Transfer" has the meaning set forth in Section
2.11(b)(iii).
"Consolidated Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date, provided that solely for
purposes of Section 5.07 and 5.09 Consolidated Debt shall not
include the Haniel Receivables.
"Consolidated Fixed Charges" for any period means the sum
of (i) all interest charges on Consolidated Debt (including the
interest component of payments under capitalized lease
obligations)
for such period, (ii) Net Rental Expense From Operating Leases
for
such period and (iii) dividends payable on the Borrower's
preferred
stock during such period.
"Consolidated Net Income" means for any period the
consolidated net income (or loss) of the Borrower and its
Consolidated Subsidiaries for such period.
"Consolidated Net Worth" means at any date the
consolidated
stockholders' equity of the Borrower and its Consolidated
Subsidiaries determined as of such date.
"Consolidated Subsidiary" means at any date any Subsidiary
or other entity the accounts of which would be consolidated with
those of the Borrower in its consolidated financial statements as
of such date.
"Consolidated Total Assets" means, as of any date, the
total
assets of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Credit Watch Period" means, but only if on the Effective
Date the Borrower is on CreditWatch with negative implications,
in
the case of S&P, and under review for possible downgrading, in
the
case of Moody's, the period commencing on the Effective Date and
ending on the first date thereafter on which S&P announces that
the
Borrower is no longer on CreditWatch with negative implications
or
Moody's announces that the Borrower is no longer under review for
possible downgrading.
"Debt" of any Person means at any date, without
duplication,
(i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or
other similar instruments, (iii) all obligations of such Person
to
pay the deferred purchase price of property or services, except
trade accounts payable and other accrued short-term obligations,
in
each case arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v)
all
Debt of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person, (vi) all non-
contingent obligations (and, for purposes of Section 5.10 and
clauses (e) and (f) of Section 6.01, all contingent obligations)
of
such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument
and (vii) all Debt of others Guaranteed by such Person.
"Debt Financing" means any incurrence of Debt pursuant to
Section 5.13(a)(iii).
"Default" means any condition or event that constitutes an
Event of Default or that with the giving of notice or lapse of
time
or both would, unless cured or waived, become an Event of
Default.
"Delivery Date" has the meaning set forth in Section
2.11(e)(ii).
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap
transaction,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index
option,
bond option, interest rate option, foreign exchange transaction,
cap transaction, floor trans-action, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option
with
respect to any of the foregoing transactions) or any combination
of
the foregoing transactions.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City
are
authorized by law to close.
"Domestic Lending Office" means, as to each Bank, its
office
located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire
as
its Domestic Lending Office) or such other office as such Bank
may
hereafter designate as its Domestic Lending Office by notice to
the
Borrower and the Managing Agent; provided that any Bank may so
designate separate Domestic Lending Offices for its Base Rate
Loans, on the one hand, and its CD Loans, on the other hand, in
which case all references herein to the Domestic Lending Office
of
such Bank shall be deemed to refer to either or both of such
offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or
both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.05(b).
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.02.
"Environmental Laws" means any and all federal, state,
local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans,
injunctions,
permits, concessions, grants, franchises, licenses, agreements
and
other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"Equity Issuance" means the issuance by the Borrower or
any
Subsidiary to any Person other than the Borrower or a
Wholly-Owned
Subsidiary of any shares of its capital stock or any securities
exchangeable or convertible into such shares (other than any such
securities that constitute Debt) or any warrants or similar
rights
to subscribe for such shares.
"Equity Store" means any Person participating in the
Equity
Store Program and any Person listed on Schedule 9.
"Equity Store Program" means the business practice of the
Borrower and its Subsidiaries of making equity investments in
Persons, and making or guaranteeing loans to such Persons, for
the
purpose of assisting such Person in acquiring, remodeling,
refurbishing, expanding or operating one or more retail grocery
stores and pursuant to which such Person is permitted or required
to reduce the Borrower's or the Subsidiary's equity interest to a
minority position over time (usually five to ten years).
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute.
"ERISA Group" means the Borrower and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which,
together
with the Borrower, are treated as a single employer under Section
414 of the Internal Revenue Code.
"ESOP Loan" means the loan pursuant to the Amended and
Restated Loan and Guarantee Agreement dated as of June 1, 1990,
as
amended to the date hereof, by and among Stock Ownership Trust
for
Fleming Companies, Inc. and its Subsidiaries, the Borrower and
Wachovia Bank and Trust Company, N.A.
"Euro-Dollar Business Day" means any Domestic Business Day
on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in
its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other
office, branch or affiliate of such Bank as it may hereafter
designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Managing Agent.
"Euro-Dollar Loan" means (i) a Loan which bears interest
at
a Euro-Dollar Rate pursuant to the applicable Notice of Borrowing
or Notice of Interest Rate Election or (ii) an overdue amount
which
was a Euro-Dollar Loan immediately before it became overdue.
"Euro-Dollar Margin" has the meaning set forth in Section
2.05(c).
"Euro-Dollar Rate" means a rate of interest determined
pursuant to Section 2.05(c) on the basis of a London Interbank
Offered Rate.
"Euro-Dollar Reference Banks" means the principal London
offices of Union Bank of Switzerland, The Bank of Nova Scotia and
Morgan Guaranty Trust Company of New York and each such other
bank
as may be appointed pursuant to Section 9.05(f).
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) that is in effect on such
day,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in
New
York City with deposits exceeding five billion dollars in respect
of "Eurocurrency liabilities" (or in respect of any other
category
of liabilities that includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category
of
extensions of credit or other assets that includes loans by a
non-United States office of any Bank to United States residents).
"Event of Default" has the meaning set forth in Section
6.01.
"Excepted Inventory and Excepted Receivables" means: (i)
Inventory and Receivables attributable to the stores listed on
Schedule 12 hereto, (ii) retail Inventory and retail Receivables
owned by Save-U-Foods, Inc., an Oklahoma corporation, but only if
the aggregate book value of such retail Inventory and retail
Receivables does not exceed $10,000,000 during 1994, $15,000,000
during 1995, $20,000,000 during 1996, $25,000,000 during 1997,
$30,000,000 during 1998, $35,000,000 during 1999 and $40,000,000
thereafter, (iii) Inventory and Receivables owned by Gateway
Insurance Agency, Inc. and SMF Insurance Company, Ltd. and (iv)
at
any time prior to January 1, 1995, Receivables arising out of
advances made to or for the account of retail grocers to finance
the construction of facilities, but only if the aggregate book
value of such Receivables does not exceed $12,000,000.
"Existing Fleming Debt" means the Debt of Fleming and its
Subsidiaries listed on Schedule 5 hereto.
"Existing Haniel Debt" means the Debt of Haniel
Corporation
and its subsidiaries listed on Schedule 6 hereto.
"Facility Fee Rate" has the meaning set forth in Section
2.07(b).
"Federal Funds Rate" means, for any day, the rate per
annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%)
equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic
Business Day, and (ii) if no such rate is so published on such
next
succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust
Company of New York on such day on such transactions as
determined
by the Managing Agent.
"Financing Receivables" means receivables arising from
investments in direct financing leases or in retailer notes or
chattel paper (other than any retailer note or chattel paper
received in exchange or substitution for or in payment or other
satisfaction of any Receivable).
"Fixed Rate Borrowing" means a CD Borrowing or a
Euro-Dollar
Borrowing.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or
both.
"General Syndication" means the assignment by the Managing
Agent and the Agents of rights and obligations under this
Agreement
and the Notes pursuant to Section 9.05(c) at any time prior to
the
date which is 60 days after the date hereof.
"Group of Loans" means at any time a group of Loans
consisting of (i) all Base Rate Loans of a Tranche at such time
or
(ii) all Loans which are Fixed Rate Loans of the same type of a
Tranche having the same Interest Period at such time; provided
that, if a Loan of any particular Bank is converted to or made as
a Base Rate Loan pursuant to Section 8.02 or 8.04, such Loan
shall
be included in the same Group or Groups of Loans from time to
time
as it would have been in if it had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing
any Debt of any other Person and, without limiting the generality
of the foregoing, any obligation, direct or indirect, contingent
or
otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
take-orpay, or to maintain financial statement conditions or
other-
wise) or (ii) entered into for the purpose of assuring in any
other
manner the obligee of such Debt of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include (a)
endorsements for collection or deposit in the ordinary course of
business, (b) agreements entered into in the ordinary course of
business to purchase inventory or retail store fixtures of
another
Person at a price not greater than the market value thereof or
(c)
agreements entered into in connection with a Permitted
Receivables
Financing pursuant to which the Borrower or a Subsidiary
guarantees
the collection of Transferred Receivables to the extent of an
amount not exceeding 15% of the book value of Transferred
Receivables from time to time, or in the case of receivables
arising from direct financing leases for retail electronics
systems, 30% of the book value thereof. The term "Guarantee"
used
as a verb has a corresponding meaning.
"Guarantee Agreements" means Guarantee Agreements made on
the Effective Date by the initial Guaranteeing Subsidiaries and
thereafter by any other Subsidiary pursuant to Section 5.19 in
favor of the Managing Agent and the Banks in substantially the
form
of Exhibit F hereto, as the same may be amended, modified or
supplemented from time to time in accordance with the provisions
thereof.
"Guaranteeing Subsidiaries" means, initially, the
Subsidiaries listed on Schedule 7(a) hereto and thereafter means
each such Subsidiary and each other Subsidiary that executes a
Guarantee Agreement pursuant to Section 5.19, provided that a
Subsidiary that is an indirect Subsidiary of the Borrower shall
not
be considered a Guaranteeing Subsidiary unless each intermediate
Subsidiary has also executed a Guarantee Agreement.
"Guarantee Requirement" means at any date that the
properties and assets of Subsidiaries of the Borrower that are
Guaranteeing Subsidiaries, together with the properties and
assets
of the Borrower, constituted as at the last day of the most
recently ended fiscal quarter at least 85% of the consolidated
total properties and assets of the Borrower and its Subsidiaries,
provided that prior to the Rating Target Date the Guarantee
Requirement shall not be met unless each Subsidiary that executes
a Security Agreement also executes a Guarantee Agreement. For
purposes of this definition, properties and assets shall be taken
at their book value and all stock or other equity interests in
Subsidiaries and other intercompany items shall be disregarded.
"Haniel Receivables" means the Existing Haniel Debt listed
on Part E of Schedule 6 hereto.
"Haniel Transaction" means the acquisition by the Borrower
of Haniel Corporation pursuant to the Stock Purchase Agreement
and
the related refinancing of certain outstanding debt of Haniel
Corporation and its subsidiaries and the Borrower and its
Subsidiaries.
"Hazardous Substances" means any toxic, radioactive,
caustic
or otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance
having any constituent elements displaying any of the foregoing
characteristics.
"Intercompany Receivables" means, for purposes solely of
this Agreement and not for purposes of any Security Documents,
any
Receivable the obligor of which is the Borrower or a Subsidiary.
"Interest Period" means: (1) with respect to each
Euro-Dollar Loan, a period commencing on the date of borrowing
specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and
ending one, two, three, six or, if the Managing Agent determines
that deposits in such maturity are available in the London
interbank market for such period, twelve months thereafter, as
the
Borrower may elect in the applicable notice; provided that:
(a) any Interest Period that would otherwise end on a day
that is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such
Euro-Dollar
Business Day falls in another calendar month, in which case
such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period that begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) if any Interest Period includes a date on which a
payment of principal of the Tranche A, Tranche B or Tranche C
Loans is required to be made under Section 2.09(a) but does not
end on such date, then (i) the principal amount (if any) of
such
Tranche A, Tranche B or Tranche C Euro-Dollar Loan required to
be repaid on such date shall have an Interest Period ending on
such date and (ii) the remainder (if any) of such Tranche A,
Tranche B or Tranche C Euro-Dollar Loan shall have an Interest
Period determined as set forth above.
(2) with respect to each CD Loan, a period commencing on the
date
of borrowing specified in the applicable Notice of Borrowing or
on
the date specified in the applicable Notice of Interest Rate
Election and ending 30, 60, 90, 180 or, if the Managing Agent
determines that certificates of deposit in such maturity are
available in accordance with the definition of CD Base Rate for
such period, 360 days thereafter, as the Borrower may elect in
the
applicable notice; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) that would otherwise
end on a day that is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a
payment of principal of the Tranche A, Tranche B or Tranche C
Loans is required to be made under Section 2.09(a) but does not
end on such date, then (i) the principal amount (if any) of
such
Tranche A, Tranche B or Tranche C CD Loan required to be repaid
on such date shall have an Interest Period ending on such date
and (ii) the remainder (if any) of such Tranche A, Tranche B or
Tranche C CD Loan shall have an Interest Period determined as
set forth above.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Inventory" has the meaning set forth in the Security
Agreements.
"Investment" means any investment in any Person, whether
by
means of share purchase, capital contribution, loan, Guarantee,
time deposit or otherwise, provided that accounts receivable
arising in the ordinary course of business do not constitute an
Investment.
"Issuing Bank" means NationsBank of Texas, N.A., or
Societe
Generale, Southwest Agency, as issuer of a Letter of Credit.
"Letter of Credit" means a letter of credit to be issued
hereunder by an Issuing Bank.
"Letter of Credit Commitment" means the lesser of (x)
$160,000,000 and (y) the aggregate Tranche A Commitments.
"Letter of Credit Liabilities" means, for any Bank and at
any time, the sum of (x) the amounts then owing to such Bank
(including in its capacity as an Issuing Bank) under Section 2.16
to reimburse it in respect of amounts drawn under Letters of
Credit
and (y) such Bank's ratable participation in the aggregate amount
then available for drawing under all Letters of Credit,
calculated
in accordance with Section 2.16.
"Lien" means, with respect to any asset, any mortgage,
lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a
Lien
any asset that it has acquired or holds subject to the interest
of
a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan and
"Loans" means Domestic Loans or Euro-Dollar Loans or both;
provided
that if any Loan or Loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the
term
"Loan" shall refer to the combined principal amount resulting
from
such combination or to each of the separate principal amounts
resulting from such subdivision, as the case may be.
"London Interbank Offered Rate" has the meaning set forth
in Section 2.05(c).
"Managing Agent" means Morgan Guaranty Trust Company of
New
York in its capacity as agent for the Banks hereunder, and its
successors in such capacity.
"Material Derivatives Obligations" means payment
obligations
in respect of Derivatives Obligations of the Borrower or any
Material Subsidiary, arising in one or more related or unrelated
transactions, exceeding in the aggregate $25,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $35,000,000.
"Material Subsidiary" means at any time a Subsidiary that
as of such time meets the definition of a "significant
subsidiary"
contained as of the date hereof in Regulation S-X of the
Securities
and Exchange Commission.
"Moody's" means Moody's Investors Service, a Delaware
corporation, and its successors or, absent any successor, such
nationally recognized statistical rating organization as the
Borrower and the Managing Agent may select.
"Multiemployer Plan" means at any time an emplo-yee
pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to
which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five
plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such
five-year period.
"Net Earnings Available for Fixed Charges" for any period
means the sum of (i) Consolidated Net Income for such period,
(ii)
income taxes and interest charges on Consolidated Debt deducted
in
determining Consolidated Net Income for such period and (iii) Net
Rental Expense From Operating Leases for such period.
"Net Proceeds" means the gross consideration received by
or
on behalf of the Borrower or any of its Subsidiaries in respect
of
any Asset Sale, Debt Financing or Equity Issuance, minus (i) any
expenses (including, in the case of any Debt Financing or Equity
Issuance, any underwriting discount) reasonably incurred by the
Borrower or any Subsidiary (and not payable to an Affiliate or a
Subsidiary of the Borrower) in connection with such Asset Sale,
Debt Financing or Equity Issuance and (ii) in the case of any
Asset
Sale, (A) estimated income taxes to be paid by the Borrower or
any
Subsidiary in connection with such Asset Sale (calculated on the
basis of the highest applicable corporate tax rate regardless of
the Borrower's then current tax position), (B) any cash escrowed
or
retained by the Person who is the acquiror in such Asset Sale on
account of holdbacks or contingencies, but only until such cash
or
any portion thereof is received by the Borrower or any Subsidiary
(at which time such cash shall constitute Net Proceeds), (C) any
amount expended by the Borrower or any Subsidiary in
contemplation
of such Asset Sale to refurbish or otherwise improve the property
subject thereto and (D) all Debt paid by the Borrower or any
Subsidiary in connection therewith.
"Net Rental Expense From Operating Leases" means for any
period, the net rental expenses of the Borrower and its
Consolidated Subsidiaries for such period under all operating
leases that have initial non-cancelable lease terms exceeding one
year.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibits A-1, A-2, A-3 and A-4
hereto,
evidencing the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Notice of Interest Rate Election" has the meaning set
forth
in Section 2.06(a).
"Notice of Issuance" has the meaning set forth in Section
2.16.
"Notice of Termination" means a notice delivered by the
Borrower pursuant to Section 2.11(a)
"Operative Agreements" means this Agreement, the Notes,
the
Guarantee Agreements, the Pledge Agreements and the Security
Agreements.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section
9.05(b).
"PBGC" means the Pension Benefit Guaranty Corporation or
any
entity succeeding to any or all of its functions under ERISA.
"Permitted Receivables Financing" means any transaction
involving the transfer (by way of sale, pledge or otherwise) by
the
Borrower or any of any its Subsidiaries of Financing Receivables
or, after the Rating Target Date, other receivables to any other
Person, provided that after giving effect to such transaction the
sum of (i) the aggregate uncollected balances of Financing
Receivables and, after the Rating Target Date, other receivables
so
transferred ("Transferred Receivables") plus (ii) the aggregate
amount of all collections on Transferred Receivables theretofore
received by the seller but not yet remitted to the purchaser, in
each case at the date of determination, would not exceed
$600,000,000.
"Person" means an individual, a corporation, a
partnership,
an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) that is covered by Title IV of
ERISA or subject to the minimum funding standards under Section
412
of the Internal Revenue Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any
Person that was at such time a member of the ERISA Group for
employees of any Person that was at such time a member of the
ERISA
Group.
"Pledge Agreements" means Pledge Agreements made on the
Effective Date by the Borrower and each Subsidiary that, directly
or indirectly, owns any capital stock of an initial Guaranteeing
Subsidiary listed on Schedule 7(b) hereto and thereafter by any
other Subsidiary pursuant to Section 5.19 in favor of the
Managing
Agent and the Banks in substantially the form of Exhibit G-1 or
G-2
hereto, as appropriate, as the same may be amended, modified or
supplemented from time to time in accordance with the provisions
thereof.
"Pledged" means, with respect to any Inventory or
Receivables owned by the Borrower or a Collateral Subsidiary,
that
such Person has duly authorized, executed and delivered a
Security
Agreement and all such actions (including the filing of Uniform
Commercial Code financing statements) have been taken as the
Required Banks may consider necessary or appropriate to ensure
the
validity, enforceability and binding effect of such Security
Agreement and the validity, enforceability, perfection and
priority
(to the extent required by such Security Agreement) of the Liens
to
be created thereon by such Security Agreement. The term "Pledge"
has a corresponding meaning.
"Prime Rate" means the rate of interest publicly announced
by Morgan Guaranty Trust Company of New York in New York City
from
time to time as its Prime Rate.
"Quarterly Date" means the first Euro-Dollar Business Day
of each January, April, July and October.
"Rating Level" means, with respect to the Borrower at any
time, the category established as follows:
(a) Rating Level I means that a rating of the Borrower's
senior unsecured long-term debt of A- or higher by S&P or A3 or
higher by Moody's is currently in effect;
(b) Rating Level II means that a rating of the Borrower's
senior unsecured long-term debt of BBB+ by S&P or Baa1 by
Moody's is currently in effect;
(c) Rating Level III means that a rating of the
Borrower's
senior unsecured long-term debt of BBB by S&P or Baa2 by
Moody's
is currently in effect;
(d) Rating Level IV means that a rating of the Borrower's
senior unsecured long-term debt of BBB- by S&P or Baa3 by
Moody's is currently in effect;
(e) Rating Level V means that a rating of the Borrower's
senior unsecured long-term debt of BB+ by S&P or Ba1 by Moody's
is currently in effect;
(f) Rating Level VI means that a rating of the Borrower's
senior unsecured long-term debt of BB by S&P or Ba2 by Moody's
is currently in effect; and
(g) Rating Level VII means that (1) a rating of the
Borrower's senior unsecured long-term debt below BB by S&P or
below Ba2 by Moody's is currently in effect or (2), subject to
the provisions of Section 1.03, neither S&P nor Moody's has any
rating of such debt currently in effect.
If on any day the conditions for two Rating Levels are
met,
then the applicable Rating Level for such day shall be the Rating
Level with the lower number.
"Rating Target Date" means the first day after the first
Borrowing on which the Borrower's senior unsecured long-term debt
is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
"Rating Test" means that at the time of determination the
Borrower's senior unsecured long-term debt is rated BBB- or
higher
by S&P and Baa3 or higher by Moody's.
"Receivables" has the meaning set forth in the Security
Agreements.
"Reference Banks" means the CD Reference Banks or the
Euro-Dollar Reference Banks, as the context may require, and
"Reference Bank" means any one of such Reference Banks.
"Regulation U" means Regulation U of the Board of
Governors
of the Federal Reserve System, as in effect from time to time.
"Releasing Banks" means at any time Banks having more than
80% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding more than 80% of
the sum of (i) Notes evidencing the aggregate unpaid principal
amount of the Loans and (ii) the aggregate Letter of Credit
Liabilities.
"Remaining Bank" has the meaning set forth in Section
2.11(a).
"Required Banks" means at any time Banks having more than
50% of the aggregate amount of the Commitments or, if the
Commitments shall have been terminated, holding more than 50% of
the sum of (i) Notes evidencing the aggregate unpaid principal
amount of the Loans and (ii) the aggregate Letter of Credit
Liabilities.
"Required Remaining Banks" means at any time the Required
Banks without taking into consideration the Commitment of, or any
Loans or Letter of Credit Liabilities held by, any Terminating
Bank.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock
(except
dividends payable solely in shares of its capital stock) or (ii)
any payment on account of the purchase, redemption, retirement or
acquisition of (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the
Borrower's capital stock, provided that the repurchase by the
Borrower of shares of its common stock contemplated by item 1 on
Schedule 11 shall not constitute a Restricted Payment.
"Restricted Payments Cap" means $50,000,000 (as increased
pursuant hereto in connection with any Equity Issuance occurring
after the Effective Date and prior to the time of calculation)
multiplied by one plus a fraction, the numerator of which is the
Net Proceeds of any Equity Issuance occurring after the Effective
Date and not previously taken into account for the purposes of
calculating the Restricted Payments Cap and the denominator of
which is Consolidated Net Worth as at the last day of the fiscal
quarter most recently ended at the time of such Equity Issuance.
For purposes of this definition, the Borrower shall treat all
Equity Issuances during a fiscal quarter to any employee or
director of a member of the ERISA Group (or to any trust
established for their benefit) pursuant to a stock option plan or
other employee benefit arrangement approved by the Board of
Directors of the Borrower or any Subsidiary as a single Equity
Issuance occurring on the last day of such fiscal quarter.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., a New York corporation, and its successors or,
absent any successor, such nationally recognized statistical
rating
organization as the Borrower and Managing Agent may select.
"Security Agreements" means Security Agreements made on
the
Effective Date by the Borrower and each Collateral Subsidiary
listed in Schedule 8 hereto and thereafter by any other
Collateral
Subsidiary pursuant to Section 5.19 in favor of the Managing
Agent
and the Banks in substantially the form of Exhibit H-1 or H-2
hereto, as appropriate, as the same may be amended, modified or
supplemented from time to time in accordance with the provisions
thereof.
"Security Documents" means the Pledge Agreements and the
Security Agreements.
"Stock Purchase Agreement" means the Stock Purchase
Agreement dated as of July 15, 1994 between the Borrower and
Franz
Haniel & Cie. GmbH.
"Subsidiary" means any corporation or other entity of
which
securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or
indirectly owned by the Borrower (or, if such term is used with
reference to another Person, by such Person).
"Substituting Bank" has the meaning set forth in Section
2.11(b)(i).
"Substitution" has the meaning set forth in Section
2.11(b)(ii).
"Swingline Bank" means Morgan Guaranty Trust Company of
New
York, in its capacity as the Swingline Bank under Section
2.01(d),
and its successors in such capacity.
"Swingline Commitment" means the obligation of the
Swingline
Bank to make Swingline Loans to the Borrower not exceeding
$25,000,000 (or such other amount not in excess of the Tranche A
Commitment from time to time as the Borrower and the Swingline
Bank
may agree from time to time) in aggregate principal amount at any
one time outstanding, as the amount of such obligation may be
reduced from time to time pursuant to Section 2.01(d) or Section
2.08.
"Swingline Loan" means a Tranche A Base Rate Loan made by
the Swingline Bank pursuant to Section 2.01(d).
"Swingline Maturity Date" means the earlier of (i) the
Tranche A Termination Date and (ii) the date on which the
Swingline
Commitment is terminated pursuant to Section 2.01(d) or Section
2.08.
"Temporary Cash Investment" means any Investment in (i)
direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency
thereof,
(ii) commercial paper rated at least A-1 by S&P and P-1 by
Moody's,
(iii) time deposits with, including certificates of deposit
issued
by, any office located in the United States of any bank or trust
company which is organized under the laws of the United States or
any state thereof and has capital, surplus and undivided profits
aggregating at least $1,000,000,000, (iv) repurchase agreements
with respect to securities described in clause (i) above entered
into with an office of a bank or trust company meeting the
criteria
specified in clause (iii) above, (v) short term tax exempt bonds
rated at least AA by S&P or Aa2 by Moody's, or (vi) shares in a
mutual fund, the investment objectives and policies of which
require it to invest substantially all of its assets in short
term
tax exempt bonds rated at least AA by S&P or Aa2 by Moody's,
provided that in the case of clauses (i) through (v) above such
Investment matures within one year from the date of acquisition
thereof by the Borrower or a Subsidiary.
"Terminating Bank" means any Bank the Commitment of which
is to be terminated as a result of a Notice of Termination given
pursuant to Section 2.11(a).
"Termination Date" means, with respect to any Terminating
Bank, the Borrower Designated Date.
"Tranche A", "Tranche B" or "Tranche C" means, when used
with respect to (i) a Bank's Commitment, the portion of such
Bank's
Commitment identified with respect to such Tranche on Schedule 1
hereto, as such portion of the Commitment may be reduced pursuant
to Section 2.08, 2.11 or 9.05(c), (ii) a Borrowing, a Borrowing
made by the Borrower under such Tranche, as identified in the
Notice of Borrowing with respect thereto, (iii) a Loan, a Loan
made
as part of a Borrowing under such Tranche, and (iv) a Note, a
Note
evidencing the obligation of the Borrower to pay Loans
outstanding
under such Tranche.
"Tranche A Commitment Fee Rate" has the meaning set forth
in Section 2.07(a).
"Tranche C Prepayment Date" has the meaning set forth in
Section 2.09(a).
"Tranche A Termination Date" means the fifth anniversary
of
the initial Borrowing hereunder, or such earlier date as may be
designated by the Borrower pursuant to Section 2.08 (or, if such
day is not a Euro-Dollar Business Day, the next preceding Euro-
Dollar Business Day).
"Tranche B Termination Date" means the second anniversary
of the initial Borrowing hereunder (or, if such day is not a Euro
Dollar Business Day, the next preceding Euro-Dollar Business
Day).
"Tranche C Termination Date" means the sixth anniversary
of
the initial Borrowing hereunder (or, if such day is not a Euro-
Dollar Business Day, the next preceding Euro-Dollar Business
Day).
"Transferee Bank" has the meaning set forth in Section
2.11(b)(i).
"Transferred Receivables" has the meaning set forth in the
definition of Permitted Receivables Financing.
"Unfunded Liabilities" means, with respect to any Plan at
any time, the amount (if any) by which (i) the value of all
benefit
liabilities under such Plan, determined on a plan termination
basis
using the assumptions prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds (ii) the fair market value of all
Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined
as
of the then most recent valuation date for such Plan, but only to
the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"Wholly-Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which
(except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations.
Unless
otherwise specified herein, all accounting terms used herein
shall
be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered
hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on
a
basis consistent (except for changes concurred in by the
Borrower's
independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks; provided that,
if
the Borrower notifies the Managing Agent that the Borrower wishes
to amend any covenant in Article V to eliminate the effect of any
change in generally accepted accounting principles on the
operation
of such covenant (or if the Managing Agent notifies the Borrower
that the Required Banks wish to amend Article V for such
purpose),
then the Borrower's compliance with such covenant shall be
determined on the basis of generally accepted accounting
principles
in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either
such
notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
SECTION 1.03. Use of Ratings. For purposes of the
definitions of Rating Level, Rating Target Date and Rating Test,
the credit ratings to be utilized are the ratings assigned to
unsecured obligations of the Borrower without third party credit
support. If at any time the Borrower does not have outstanding
any
senior unsecured long-term debt but the Borrower has received
from
S&P or Moody's an implied rating, using the same procedures and
criteria that such rating agency would apply for purposes of
making
an actual rating of senior unsecured long-term public debt
hypothetically issued by the Borrower, and has made effective
arrangements whereby such implied rating will be subject to
ongoing
review and revision using the same procedures and criteria that
such rating agency would apply in the case of an actual rating of
such debt, then such implied rating or ratings as in effect from
time to time shall be utilized for purposes of such definitions.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend.
(a) Tranche A Loans. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Tranche
A Loans to the Borrower pursuant to this subsection 2.01(a) from
time to time prior to the Tranche A Termination Date in amounts
such that the sum of the aggregate principal amount of Tranche A
Loans by such Bank at any one time outstanding, such Bank's
Letter
of Credit Liabilities and such Bank's ratable share of Swingline
Loans shall not exceed the amount of its Tranche A Commitment,
provided that no Tranche A Borrowing may be made unless prior to
or
concurrently with such Tranche A Borrowing the Borrower has made
Tranche B and Tranche C Borrowings in the full amount of the
Tranche B and Tranche C Commitments. Each Tranche A Borrowing
shall be in an aggregate principal amount of $15,000,000 or any
larger multiple of $1,000,000 (except that any such Borrowing may
be in the aggregate amount of the unused Tranche A Commitments)
and
shall be made from the several Banks ratably in proportion to
their
respective Tranche A Commitments. Within the foregoing limits,
the
Borrower may borrow under this subsection 2.01(a), repay or, to
the
extent permitted by Section 2.10, prepay Tranche A Loans and
reborrow at any time under this subsection 2.01(a).
(b) Tranche B Loans. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Tranche
B Loans to the Borrower from time to time during the Availability
Period in amounts not exceeding in the aggregate the amount of
its
Tranche B Commitment, such Borrowings to be in an aggregate
principal amount of $15,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the
aggregate
amount of the unused Tranche B Commitments) and to be made from
the
several Banks ratably in proportion to their respective Tranche B
Commitments. The Tranche B Commitments are not revolving in
nature, and amounts prepaid prior to the Tranche B Termination
Date
may not be reborrowed, provided that amounts prepaid pursuant to
Section 2.01(e) may be reborrowed as provided therein. The
Tranche
B Commitments shall terminate on the last day of the Availability
Period.
(c) Tranche C Loans. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Tranche
C Loans to the Borrower from time to time during the Availability
Period, in amounts not exceeding in the aggregate the amount of
its
Tranche C Commitment, such Borrowings to be in an aggregate
principal amount of $15,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the
aggregate
amount of the unused Tranche C Commitments) and to be made from
the
several Banks ratably in proportion to their respective Tranche C
Commitments. The Tranche C Commitments are not revolving in
nature, and amounts prepaid prior to the Tranche C Termination
Date
may not be reborrowed, provided that amounts prepaid pursuant to
Section 2.01(e) may be reborrowed as provided therein. The
Tranche
C Commitments shall terminate on the last day of the Availability
Period.
(d) Swingline Facility. (i) Until the Swingline
Maturity
Date, the Swingline Bank agrees, on the terms and conditions set
forth in this Agreement, to make Tranche A Base Rate Loans to the
Borrower, solely for purposes of reimbursing the Issuing Bank for
draws on a Letter of Credit pursuant to Section 2.16(c), in an
aggregate principal amount at any one time outstanding not
exceeding its Swingline Commitment. Notwithstanding the
foregoing,
to the extent that the aggregate Swingline Loans made under this
subsection (d), when added to the aggregate outstanding principal
amount of Tranche A Loans outstanding hereunder and the aggregate
Letter of Credit Liabilities, would exceed the aggregate amount
of
the Tranche A Commitments, such excess shall not be available for
borrowing under this subsection (d). Each borrowing under this
subsection (d) shall be in a principal amount of at least
$5,000,000 (except that any such borrowing may be in the amount
of
the unused Swingline Commitment). Within the foregoing limits,
the
Borrower may borrow under this subsection (d), repay Swingline
Loans and reborrow at any time prior to the Swingline Maturity
Date
under this subsection (d).
(ii) If the Borrower wishes to borrow from the Swingline
Bank pursuant to subsection (d)(i) of this Section, the Borrower
shall give the Swingline Bank irrevocable notice before Noon (New
York City time) on the date of such borrowing, specifying the
borrowing date and the principal amount to be borrowed and
stating
as set forth in the final paragraph of Exhibit E. Unless the
Swingline Bank determines that any applicable condition specified
in Section 3.01 has not been satisfied, the Swingline Bank shall
deposit the specified amount in the Borrower's account (number
02138228) at the Managing Agent's address specified in or
pursuant
to Section 9.01 by 2:30 P.M. (New York City time) on the
specified
borrowing date. The Swingline Bank shall notify each Bank of the
making of any Swingline Loan that remains outstanding for more
than
three Domestic Business Days.
(iii) Interest on the Swingline Loans shall be due and
payable on the last Euro-Dollar Business Day of each month and on
the Swingline Maturity Date.
(iv) The Borrower, upon notice to the Swingline Bank not
later than Noon (New York City time) on the date of such
prepayment, may prepay the Swingline Loans in whole at any time
or
from time to time in part in amounts aggregating at least
$5,000,000 and, in any event, shall prepay each Swingline Loan in
whole no later than the third Domestic Business Day after such
Swingline Loan was made, in each case by paying the principal
amount to be prepaid together with accrued interest thereon to
the
date of prepayment.
(v) The Swingline Bank may terminate the Swingline
Commitment at any time by giving at least three Domestic Business
Days' notice to the Managing Agent and the Borrower. On such
date
of termination the Borrower shall repay the principal amount of
all
outstanding Swingline Loans, together with accrued interest
thereon.
(vi) Each Bank having a Tranche A Commitment severally
agrees to pay to the Swingline Bank forthwith upon demand to all
of
the Banks having a Tranche A Commitment an amount equal to such
Bank's ratable share of each Swingline Loan outstanding at the
time
of such demand. The amount so paid shall constitute a Tranche A
Base Rate Loan of such Bank for the purposes of this Agreement.
(e) Certain Initial Borrowings. All Borrowings of each
Tranche made on the Effective Date (the "Initial Borrowings")
shall
be Base Rate Borrowings. The Borrower shall on the Effective
Date
give a Notice of Borrowing with respect to a Euro-Dollar
Borrowing
of each Tranche (the "Interim Borrowings"), to be made on the
third
Euro-Dollar Business Day after the Effective Date and in an
amount
at least equal to the principal amount of the Initial Borrowing
of
the same Tranche. Other than the Interim Borrowings, all
Borrowings of each Tranche made after the Effective Date but
before
the General Syndication Date ("Additional Borrowings") shall be
Base Rate Borrowings. Each Interim Borrowing shall, the
provisions
of the definition of Interest Period to the contrary
notwithstanding, have an Interest Period ending on the fifth
Euro-
Dollar Business Day after the Effective Date (the "General
Syndication Date"), provided that the interest rate applicable to
the Euro-Dollar Loans comprising each such Borrowing shall be
determined with reference to a London Interbank Offered Rate for
an
assumed Interest Period of one week. The proceeds of the Interim
Borrowings shall be applied to the extent necessary to prepay the
Initial Borrowings and, to the extent of any excess, may be
applied
to prepay any Additional Borrowings, and the Borrower shall give
a
timely notice of such prepayment pursuant to Section 2.10. The
Borrower shall timely give such further Notices of Borrowing with
respect to a Borrowing of each Tranche, each to be made on the
General Syndication Date such that the aggregate principal amount
of Borrowings of such Tranche on the General Syndication Date at
least equals the aggregate principal amount of the Interim
Borrowing and any Additional Borrowings of the same Tranche
outstanding on the General Syndication Date. The proceeds of
such
Borrowings shall be applied to prepay the Interim Borrowings and
any Additional Borrowings, and the Borrower shall give a timely
notice of such prepayment pursuant to Section 2.10.
SECTION 2.02. Notice of Borrowings. Except in the case
of
Swingline Loans, the Borrower shall give the Managing Agent
notice
substantially in the form of Exhibit E (a "Notice of Borrowing")
not later than Noon (New York City time) on (x) the date of each
Base Rate Borrowing, (y) the second Domestic Business Day before
each CD Borrowing and (z) the third Euro-Dollar Business Day
before
each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to
bear interest initially at the Base Rate or at a CD Rate or a
Euro-Dollar Rate,
(d) in the case of a Fixed Rate Borrowing, the duration
of
the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period, and
(e) whether such Borrowing is to consist of Tranche A
Loans, Tranche B Loans or Tranche C Loans;
provided that if a Termination Date has been designated in
accordance with Section 2.11, the Borrower may not request
pursuant
to any Notice of Borrowing any Fixed Rate Borrowing that would
take
place before such Termination Date and that would have an
Interest
Period the last day of which would fall after such Termination
Date.
SECTION 2.03. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Managing
Agent shall promptly notify each Bank (and, if (i) the date of
the
Borrowing contemplated in such Notice of Borrowing is a date on
which any Substituting Bank is to become a Bank for purposes of
this Agreement and (ii) the Managing Agent shall have received
the
amendments to this Agreement on or prior to the Delivery Date
applicable thereto, the Substituting Bank) of the contents
thereof
and of such Bank's (and such Substituting Bank's) ratable share
of
such Borrowing and such Notice of Borrowing shall not thereafter
be
revocable by the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the
date of each Borrowing, each Bank participating therein shall
make
available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Managing Agent at
its address specified in or pursuant to Section 9.01. Unless the
Managing Agent determines that any applicable condition specified
in Article III has not been satisfied, the Managing Agent will
deposit the funds so received from the Banks in the Borrower's
account (number 02138228) at the Managing Agent's aforesaid
address.
(c) Unless the Managing Agent shall have received notice
from a Bank prior to the date of any Borrowing (except in the
case
of a Base Rate Borrowing, in which case prior to the time of such
Borrowing) that such Bank will not make available to the Managing
Agent such Bank's share of such Borrowing, the Managing Agent may
assume that such Bank has made such share available to the
Managing
Agent on the date of such Borrowing in accordance with subsection
(b) of this Section 2.03 and the Managing Agent may, in reliance
upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Bank
shall
not have so made such share available to the Managing Agent, such
Bank and the Borrower severally agree to repay to the Managing
Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until (but excluding) the date such
amount is repaid to the Managing Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal
Funds
Rate and the interest rate applicable thereto pursuant to Section
2.05 and (ii) in the case of such Bank, the Federal Funds Rate.
If
such Bank shall repay to the Managing Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
SECTION 2.04. Notes. (a) The Loans of each Bank (other
than Swingline Loans) shall be evidenced by a single Tranche A
Note, a single Tranche B Note and a single Tranche C Note, each
payable to the order of such Bank for the account of its
Applicable
Lending Office in an amount equal to the aggregate unpaid
principal
amount of such Bank's Tranche A, Tranche B or Tranche C Loans, as
applicable. The Swingline Loans shall be evidenced by a single
Swingline Note in substantially the form of Exhibit A-4 hereto,
payable to the order of the Swingline Bank for the account of
its
Applicable Lending Office in an amount equal to the aggregate
unpaid principal amount of the Swingline Loans.
(b) Each Bank may, by notice to the Borrower and the
Managing Agent, request that its Base Rate Loans, CD Loans and
Euro-Dollar Loans be evidenced by separate Notes in an amount
equal
to the aggregate unpaid principal amount of such Loans. Each
such
Note shall be in substantially the form of Exhibit A-1, A-2 or
A-3
hereto with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference in
this Agreement to the "Note" of such Bank shall be deemed to
refer
to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Notes pursuant to Section
3.02(b), the Managing Agent shall mail such Notes to such Bank.
Each Bank shall record the date, amount and maturity of each Loan
made by it and the date and amount of each payment of principal
made by the Borrower with respect thereto, and prior to any
transfer of its Notes shall endorse on the schedule forming a
part
thereof appropriate notations to evidence the foregoing
information
with respect to each such Loan then outstanding; provided that
the
failure of any Bank to make any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or
under
the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part
of its Notes a continuation of any such schedule as and when
required.
SECTION 2.05. Interest Rates. (a) Each Base Rate Loan
of
a Tranche shall bear interest on the outstanding principal amount
thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of the Base
Rate
for such day and the Base Rate Margin for Loans of such Tranche.
Such interest shall be payable quarterly in arrears on each
Quarterly Date and, with respect to the principal amount of any
Base Rate Loan converted to a CD Loan or a Euro-Dollar Loan, on
each date a Base Rate Loan is so converted. Any overdue
principal
of or interest on any Base Rate Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to
the
sum of 1% plus the rate otherwise applicable to Base Rate Loans
of
the same Tranche for such day.
Subject to Subsection 2.05(g), the "Base Rate Margin"
applicable to any Base Rate Loan for any day shall be the Base
Rate
Margin set forth below opposite the relevant Rating Level in
effect
on such day or, if such day is in the Credit Watch Period, set
forth with respect to the Credit Watch Period:
Rating Level Base Rate Margin Additional Margin
I through IV 0% 0.1250%
V 0% 0.1875%
VI 0.1875% 0.2500%
VII 0.3750% 0.3750%
During Credit Watch
Period 0% 0.2500%
provided that the Base Rate Margin for Tranche B and Tranche C
Loans shall be the margin otherwise determined as set forth in
this
paragraph plus the applicable Additional Margin set forth above.
(b) Each CD Loan of a Tranche shall bear interest on the
outstanding principal amount thereof, for each Interest Period
applicable thereto, at a rate per annum equal to the sum of the
CD
Margin for Loans of such Tranche plus the applicable Adjusted CD
Rate; provided that if any CD Loan or any portion thereof shall,
as
a result of clause (2)(b) of the definition of Interest Period,
have an Interest Period of less than 30 days, such portion shall
bear interest for each day during such Interest Period at the
rate
applicable to Base Rate Loans of the same Tranche for such day.
Such interest shall be payable for each Interest Period on the
last
day thereof and, if such Interest Period is longer than 90 days,
at
intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum
equal to the sum of 1% plus the higher of (i) the sum of the CD
Margin plus any Additional Margin plus any Further Margin
referred
to in Section 2.05(g) plus the Adjusted CD Rate applicable to the
last Interest Period for such Loan at the date such payment was
due
and (ii) the rate applicable to Base Rate Loans of the same
Tranche
for such day.
Subject to Subsection 2.05(g), the "CD Margin" applicable
to any CD Loan for any Interest Period shall be the margin set
forth below opposite the relevant Rating Level in effect on the
first day of such Interest Period or, if such first day is in the
Credit Watch Period, set forth with respect to the Credit Watch
Period:
Rating Level CD Margin Additional Margin
I 0.3750% 0.1250%
II 0.4250% 0.1250%
III 0.5250% 0.1250%
IV 0.6875% 0.1250%
V 0.9375% 0.1875%
VI 1.3125% 0.2500%
VII 1.5000% 0.3750%
During Credit Watch
Period 1.1250% 0.2500%
provided that the CD Margin for Tranche B and Tranche C Loans
shall
be the margin otherwise determined as set forth in this paragraph
plus the applicable Additional Margin set forth above.
The "Adjusted CD Rate" applicable to any Interest Period
means a rate per annum determined pursuant to the following
formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upwards, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is
the
rate of interest determined by the Managing Agent to be the
arithmetic average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid at
10:00
A.M. (New York City time) (or as soon thereafter as practicable)
on
the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the
purchase at face value from each CD Reference Bank of its
certificates of deposit in an amount comparable to the unpaid
principal amount of the CD Loan of such CD Reference Bank to
which
such Interest Period applies and having a maturity comparable to
such Interest Period.
"Domestic Reserve Percentage" means for any day that
percentage (expressed as a decimal) that is in effect on such
day,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental
or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion
dollars in respect of new non-personal time deposits in dollars
in
New York City having a maturity comparable to the related
Interest
Period and in an amount of $100,000 or more. The Adjusted CD
Rate
shall be adjusted automatically on and as of the effective date
of
any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment
rate in effect on such day which is payable by a member of the
Bank
Insurance Fund classified as adequately capitalized and within
supervisory subgroup "A" (or a comparable successor assessment
risk
classification) within the meaning of 12 C.F.R. Section 327.3(d)
(or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such
institution
in the United States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any change in
the
Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each Interest Period
applicable thereto, at a rate per annum equal to the sum of the
Euro-Dollar Margin plus the applicable London Interbank Offered
Rate. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day
thereof.
Subject to Subsection 2.05(g), the "Euro-Dollar Margin"
applicable to any Euro-Dollar Loan for any Interest Period shall
be
the margin set forth below opposite the relevant Rating Level in
effect on the first day of such Interest Period or, if such first
day is in the Credit Watch Period, set forth with respect to the
Credit Watch Period:
Euro-Dollar
Rating Level Margin Additional Margin
I 0.2500% 0.1250%
II 0.3000% 0.1250%
III 0.4000% 0.1250%
IV 0.5625% 0.1250%
V 0.8125% 0.1875%
VI 1.1875% 0.2500%
VII 1.3750% 0.3750%
During Credit Watch
Period 1.0000% 0.2500%
provided that the Euro-Dollar Margin for Tranche B and Tranche C
Loans shall be the margin otherwise determined as set forth in
this
paragraph plus the applicable Additional Margin set forth above.
The "London Interbank Offered Rate" applicable to any
Interest Period means the average (rounded upward, if necessary,
to
the next higher 1/16 of 1%) of the respective rates per annum at
which deposits in dollars are offered to each of the Euro-Dollar
Reference Banks in the London interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately
equal
to the principal amount of the Euro-Dollar Loan of such
Euro-Dollar
Reference Bank to which such Interest Period is to apply and for
a
period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any
Euro-Dollar
Loan shall bear interest, payable on demand, for each day from
and
including the date payment thereof was due to but excluding the
date of actual payment, at a rate per annum equal to the sum of
1%
plus the higher of (i) the sum of the Euro-Dollar Margin plus any
Additional Margin plus any Further Margin referred to in Section
2.05(g) plus the London Interbank Offered Rate applicable to the
last Interest Period for such Loan at the date such payment was
due
and (ii) the Euro-Dollar Margin plus any Additional Margin plus
any
Further Margin referred to in Section 2.05(g) plus the average
(rounded upward, if necessary, to the next higher 1/16 of 1%) of
the respective rates per annum at which one day (or, if such
amount
due remains unpaid more than three Euro-Dollar Business Days,
then
for such other period of time not longer than six months as the
Managing Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar
Reference Bank in the London interbank market for the applicable
period determined as provided above (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 1% plus the rate applicable to
Base Rate Loans of the same Tranche for such day).
(e) The Managing Agent shall determine each interest rate
applicable to the Loans hereunder. The Managing Agent shall give
prompt notice to the Borrower and the participating Banks of each
rate of interest so determined, and its determination thereof
shall
be conclusive in the absence of manifest error. Any notice with
respect to CD Loans or Euro-Dollar Loans shall, without the
necessity of the Managing Agent so stating in such notice, be
subject to the provisions of the definition of "CD Margin" and
"Euro-Dollar Margin" providing for adjustments in the CD Margin
or
Euro-Dollar Margin, as the case may be, applicable to such Loans
after the beginning of the Interest Period applicable thereto,
and
when during an Interest Period any event occurs that causes an
adjustment in the CD Margin or Euro-Dollar Margin applicable to
Loans to which such Interest Period is applicable, the Managing
Agent shall give prompt notice to the Borrower and the Banks of
such event and the adjusted rate of interest so determined for
such
Loans, and its determination thereof shall be conclusive in the
absence of manifest error.
(f) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Managing Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely
quotation, the Managing Agent shall determine the relevant
interest
rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations
is
available on a timely basis, the provisions of Section 8.01 shall
apply.
(g) The Base Rate Margin, the CD Margin and the Euro
Dollar
Margin otherwise applicable to any Tranche B Loan shall be
increased for each day during the periods set forth below by the
amount of the further margin set forth opposite such relevant
period:
Period Further Margin
From and including the date six
months after the initial
Tranche B Borrowing hereunder
through and including the first
anniversary of the Effective Date 0.125%
Thereafter 0.250%
SECTION 2.06. Method of Electing Interest Rates. (a) The
Loans included in each Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable
Notice
of Borrowing. Thereafter, the Borrower may from time to time
elect
to change or continue the type of interest rate borne by each
Group
of Loans (subject in each case to the provisions of Article
VIII),
as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert such Loans to CD Loans as of any Domestic
Business Day or to Euro-Dollar Loans as of any Euro-Dollar
Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or
elect to continue such Loans as CD Loans for an additional
Interest Period, in each case effective on the last day of the
then current Interest Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the Borrower
may
elect to convert such Loans to Base Rate Loans or CD Loans or
elect to continue such Loans as Euro-Dollar Loans for an
additional Interest Period, in each case effective on the last
day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a
"Notice
of Interest Rate Election") to the Managing Agent at least three
Euro-Dollar Business Days before the conversion or continuation
selected in such notice is to be effective (unless the relevant
Loans are to be converted from Domestic Loans to Domestic Loans
of
the other type or continued as CD Loans for an additional
Interest
Period, in which case such notice shall be delivered to the
Managing Agent at least two Domestic Business Days before such
conversion or continuation is to be effective). A Notice of
Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group
of
Loans; provided that (i) such portion is allocated ratably among
the Loans comprising such Group of Loans and (ii) the portion to
which such Notice applies, and the remaining portion to which it
does not apply, are each $15,000,000 or any larger multiple of
$1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans are
Fixed Rate Loans, the duration of the initial Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or
Euro-
Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of
Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election
from
the Borrower pursuant to subsection (a) above, the Managing Agent
shall promptly notify each Bank of the contents thereof and such
notice shall not thereafter be revocable by the Borrower. If the
Borrower fails to deliver a timely Notice of Interest Rate
Election
to the Managing Agent for any Group of Fixed Rate Loans, such
Loans
shall be converted into Base Rate Loans on the last day of the
then
current Interest Period applicable thereto.
SECTION 2.07. Fees.
(a) Commitment Fees. The Borrower shall pay to the
Managing
Agent for the account of the Banks:
(i) ratably in proportion to their Tranche A Commitments a
commitment fee for each day at a rate per annum equal to the
Tranche A Commitment Fee Rate in effect from time to time. The
"Tranche A Commitment Fee Rate" in effect on any day shall be the
rate set forth below opposite the relevant Rating Level in effect
on such day or, if such day is in the Credit Watch Period, set
forth with respect to the Credit Watch Period:
Rating Level Commitment Fee Rate
I 0.0250%
II 0.0500%
III 0.0750%
IV, V, VI or VII 0.1250%
During Credit Watch
Period 0.1250%
Such commitment fee shall accrue from and including the date
hereof
to but excluding the Tranche A Termination Date on the Tranche A
Available Commitment in effect on each day during such period
(or,
with respect to a Terminating Bank, the Termination Date
applicable
to such Bank); provided that any commitment fee payable in
respect
of the Tranche A Commitment of a Bank that has become a party to
this Agreement in connection with a Substitution pursuant to
Section 2.11(e) shall accrue from and including the date on which
such Substitution shall become effective; and
(ii) ratably in proportion to the aggregate of their
Tranche
B and Tranche C Commitments a commitment fee for each day at a
rate
per annum equal 0.375%. Such commitment fee shall accrue from
and
including the date hereof to but excluding the last day of the
Availability Period on the aggregate of the Tranche B and Tranche
C Available Commitments in effect on each day during such period.
(b) Facility Fee. The Borrower shall pay to the Managing
Agent for the account of the Banks ratably in proportion to their
Tranche A Commitments a facility fee for each day at a rate per
annum equal to the Facility Fee Rate in effect from time to time.
The "Facility Fee Rate" in effect on any day shall be the rate
set
forth below opposite the relevant Rating Level in effect on such
day or, if such day is in the Credit Watch Period, set forth with
respect to the Credit Watch Period:
Rating Level Facility Fee Rate
I, II, III or IV 0.1250%
V 0.1875%
VI 0.2500%
VII 0.3750%
During Credit Watch
Period 0.2500%
Such facility fee shall accrue (i) from and including the date
hereof to but excluding the Tranche A Termination Date (or, with
respect to a Terminating Bank, the Termination Date applicable to
such Bank), on the aggregate amount of the Tranche A Commitments
(whether used or unused) in effect on each day during such period
and (ii) from and including the Tranche A Termination Date to but
excluding the date all Tranche A Loans and Letter of Credit
Liabilities shall be repaid in their entirety, on the aggregate
amount of the Tranche A Loans and Letter of Credit Liabilities
outstanding on each day during such period; provided that any
facility fee payable in respect of the Tranche A Commitment of a
Bank that has become a party to this Agreement in connection with
a Substitution pursuant to Section 2.11(e) shall accrue from and
including the date on which such Substitution shall become
effective.
(c) Letter of Credit Fees. The Borrower shall pay to the
Managing Agent a letter of credit fee at a rate per annum equal
to
the Letter of Credit Fee Rate in effect from time to time on the
aggregate amount available for drawing under any Letters of
Credits
issued from time to time, such fee to be payable for the account
of
the Banks ratably in proportion to their participation therein.
The "Letter of Credit Fee Rate" in effect on any day shall be the
rate set forth below opposite the relevant Rating Level in effect
on such day or, if such day is in the Credit Watch Period, set
forth with respect to the Credit Watch Period:
Rating Level Letter of Credit Fee Rate
I 0.2500%
II 0.3000%
III 0.4000%
IV 0.5625%
V 0.8125%
VI 1.1875%
VII 1.3750%
During Credit Watch
Period 1.0000%
Such fee shall be payable in arrears on each Quarterly Date for
so
long as any Letter of Credit is outstanding. The Borrower shall
also pay to each Issuing Bank fronting fees and issuance,
drawing,
amendment and extension charges in the amounts and at the times
as
agreed between the Borrower and such Issuing Bank.
(d) Payments. Accrued fees under this Section in respect
of Tranche A Loans and Letter of Credit Liabilities shall be
payable quarterly in arrears on each Quarterly Date, on the
Tranche
A Termination Date and, if later, the date the Loans and Letter
of
Credit Liabilities shall be repaid in their entirety. Accrued
fees
under this Section in respect of Tranche B and Tranche C Loans
shall be payable on each date during the Availability Period on
which the Tranche B and Tranche C Loans are made and on the last
day of the Availability Period.
SECTION 2.08. Optional Termination or Reduction of
Tranche
A Commitments by the Borrower. The Borrower may, upon at least
three Domestic Business Days' notice to the Managing Agent,
(i) terminate the Tranche A Commitments at any time, if no Loans
or
Letter of Credit Liabilities are outstanding at such time, or
(ii)
ratably reduce from time to time by an aggregate amount of
$10,000,000 or any greater multiple of $1,000,000, the aggregate
amount of the Tranche A Commitments in excess of the aggregate
outstanding principal amount of the Tranche A Loans and Letter of
Credit Liabilities. If the Tranche A Commitments are terminated
in
their entirety, all accrued fees shall be payable on the
effective
date of such termination.
SECTION 2.09. Maturity of Loans; Mandatory Prepayments.
(a) The Tranche A Loans shall mature on the Tranche A
Termination
Date, and any Tranche A Loans or Letter of Credit Liabilities
then
outstanding (together with accrued interest thereon and Letter of
Credit fees in respect thereof) shall be due and payable on such
date. The Tranche B Loans shall mature on the Tranche B
Termination Date, and any Tranche B Loans then outstanding
(together with accrued interest thereon) shall be due and payable
on such date. On each of the dates set forth below (each, a
"Tranche C Prepayment Date"), the Tranche C Loans shall be repaid
in the aggregate principal amount set forth opposite such date,
and
the Tranche C Loans of each Bank shall be ratably repaid:
Date Amount
March 31, 1995 $12,500,000
June 30, 1995 $12,500,000
September 30, 1995 $12,500,000
December 31, 1995 $12,500,000
March 31, 1996 $18,750,000
June 30, 1996 $18,750,000
September 30, 1996 $18,750,000
December 31, 1996 $18,750,000
March 31, 1997 $33,750,000
June 30, 1997 $33,750,000
September 30, 1997 $33,750,000
December 31, 1997 $33,750,000
March 31, 1998 $45,000,000
June 30, 1998 $45,000,000
September 30, 1998 $45,000,000
December 31, 1998 $45,000,000
March 31, 1999 $57,500,000
June 30, 1999 $57,500,000
September 30, 1999 $57,500,000
December 31, 1999 $57,500,000
March 31, 2000 $65,000,000
June 30, 2000 $65,000,000
provided that if the Tranche C Loans are repaid on any date
pursuant to subsection (b) of this Section or Section 2.10, then
the amount of each repayment of the Tranche C Loans required on
or
after such date pursuant to this subsection (a) shall be reduced
as
provided in subsection (b)(iv) of this Section.
The Tranche C Loans shall mature on the Tranche C
Termination Date, and any Tranche C Loans then outstanding
(together with accrued interest thereon) shall be due and payable
on such date.
(b) In addition to any other repayments of Loans set
forth
herein, the Tranche B and Tranche C Loans shall be further repaid
as follows:
(i) Within 14 days after receipt by the Borrower or any
Collateral Subsidiary of the Net Proceeds of any Asset Sale
consisting of cash or Temporary Cash Investments (and within 14
days after receipt of any cash or Temporary Cash Investments by
the Borrower or any Collateral Subsidiary in respect of any Net
Proceeds of any Asset Sale not previously consisting of cash or
Temporary Cash Investments (whether by way of sale or other
transfer or any payment, however characterized, on account
thereof)), the Tranche B Loans shall be repaid in an amount
equal to the lesser of such Net Proceeds (or such other
receipts) and the aggregate amount of the Tranche B Loans
outstanding at the time of such receipt. If at the time of
such
receipt the Rating Test is not satisfied and the amount of the
Tranche B Loans outstanding is less than such Net Proceeds (or
such other receipts), the Tranche C Loans shall be repaid in an
amount equal to 50% of the remaining Net Proceeds (or such
other
receipts) after their application in accordance with the
preceding sentence. If at the time of such receipt the Rating
Test is not satisfied and the Tranche B Loans have been repaid,
the Tranche C Loans shall be repaid in an amount equal to 50%
of
such Net Proceeds (or such other receipts). Notwithstanding
the
foregoing provisions of this clause (i): (A) no repayment of
Loans shall take place until the Net Proceeds of Asset Sales
consisting of cash or Temporary Cash Investments (or such other
receipts) not previously applied exceed $7,500,000, at which
time the unapplied amount shall be applied to the repayment of
Loans as provided in this Subsection 2.09(b)(i) and (B) the
Borrower or any Collateral Subsidiary shall not be considered
to
have received any such cash or Temporary Cash Investments to
the
extent it was required to deliver the same to the Collateral
Agent under any Security Document in connection with a release
of Collateral thereunder until such time, if ever, as such cash
or Temporary Cash Investments are released (or upon the
Borrower's request are available for release) by the Collateral
Agent pursuant to the provisions of such Security Document.
(ii) Within 7 days after receipt by the Borrower or any
Collateral Subsidiary of the Net Proceeds of any Debt
Financing,
the Tranche B Loans shall be repaid in an amount equal to the
lesser of such Net Proceeds and the aggregate amount of the
Tranche B Loans outstanding at the time of such receipt. If at
the time of such receipt the Rating Test is not satisfied and
the amount of the Tranche B Loans outstanding is less than such
Net Proceeds the Tranche C Loans of the Banks shall be repaid
in
an amount equal to the remaining Net Proceeds after their
application in accordance with the preceding sentence. If at
the time of such receipt the Rating Test is not satisfied and
the Tranche B Loans have been repaid, the Tranche C Loans shall
be repaid in an amount equal to such Net Proceeds.
(iii) Within 7 days after receipt by the Borrower or any
Collateral Subsidiary of the Net Proceeds of any Equity
Issuance
(other than any Equity Issuance (A) made in connection with an
Acquisition or an Investment (except to the extent of any cash
or Temporary Cash Investments received by the Borrower or any
Collateral Subsidiary in connection therewith) or (B) any
Equity
Issuance to any employee or director of a member of the ERISA
Group (or to any trust established for their benefit) pursuant
to a stock option plan or other employee benefit arrangement
approved by the Board of Directors of the Borrower or any
Subsidiary), the Tranche B Loans shall be repaid in an amount
equal to the lesser of such Net Proceeds and the amount of the
Tranche B Loans outstanding at the time of such receipt. If at
the time of such receipt the Rating Test is not satisfied and
the amount of the Tranche B Loans is less than such Net
Proceeds
the Tranche C Loans of the Banks shall be repaid in an amount
equal to 75% of the remaining Net Proceeds after their
application in accordance with the preceding sentence. If at
the time of such receipt the Rating Test is not satisfied and
the Tranche B Loans have been repaid, the Tranche C Loans shall
be repaid in an amount equal to 75% of such Net Proceeds.
(iv) Each repayment of the Loans of any Tranche pursuant
to this Section 2.09(b) shall be applied to repay ratably the
Loans of such Tranche of the several Banks. At least three
Euro-Dollar Business Days before the date of each mandatory
repayment pursuant to this subsection (b), the Borrower shall
select which of the outstanding Borrowings of the applicable
Tranche are to be repaid and shall notify the Managing Agent
thereof. Upon receipt of such notice, the Managing Agent shall
promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such repayment, and such notice shall
not thereafter be revocable by the Borrower. Each such
repayment shall be applied to repay the Loans of the several
Banks included in the Borrowings of the applicable Tranche so
selected, in proportion to the respective outstanding principal
amounts thereof. The Borrower shall use its best efforts to
exercise its options with regard to the selection of Loans and
Interest Periods so that to the extent possible, on any date on
which a repayment is required pursuant to this subsection (b),
the aggregate principal amount of Fixed Rate Loans with
Interest
Periods ending on such date and Base Rate Loans is not less
than
the amount of such required repayment. Any repayment of
Tranche
C Loans pursuant to this Section 2.09(b) or Section 2.10 shall
be applied to the amounts due on Tranche C Prepayment Dates as
to 50% in inverse order of maturity, and as to the remaining
50%, pro rata to all remaining Tranche C Prepayment Dates.
SECTION 2.10. Optional Prepayments. (a) The Borrower
may,
upon at least one Domestic Business Day's (three Euro-Dollar
Business Days in the case of any Fixed Rate Borrowing) notice to
the Managing Agent, prepay any Borrowing in whole at any time, or
from time to time in part in amounts aggregating $5,000,000 or
any
larger multiple of $5,000,000, by paying the principal amount to
be
prepaid together with accrued interest thereon to the date of
prepayment and any amounts payable pursuant to Section 2.13.
Each
such optional prepayment shall be applied to prepay ratably the
Loans of the several Banks included in such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to
this
Section, the Managing Agent shall promptly notify each Bank of
the
contents thereof and of such Bank's ratable share (if any) of
such
prepayment and such notice shall not thereafter be revocable by
the
Borrower.
SECTION 2.11. Optional Termination of Commitment on
Non-Pro
Rata Basis. (a) At any time the Borrower may, upon at least
five
Euro-Dollar Business Days' notice to the Managing Agent, in its
sole and absolute discretion elect to repay in whole the Loans of
any Bank (a "Terminating Bank") by delivering a Notice of
Termination to the Terminating Bank and the Managing Agent,
specifying therein (i) the amount of the Terminating Bank's
Commitments, Loans and Letter of Credit Liabilities of each
Tranche
(any Tranche of which such Bank has a Commitment, a Loan or any
Letter of Credit Liabilities being referred to herein as an
"Affected Tranche") and (ii) the date on which the Terminating
Bank's Loans shall be repaid and the Terminating Bank's
Commitments
and Letter of Credit Liabilities shall terminate (the "Borrower
Designated Date"); provided that such Borrower Designated Date
shall be a Euro-Dollar Business Day falling no earlier than the
latest last day of any Interest Period then in effect. Upon
receipt of such Notice of Termination, the Managing Agent shall
promptly notify each other Bank that has a Commitment, a Loan or
Letter of Credit Liabilities in any Affected Tranche (a
"Remaining
Bank") of the contents thereof, and such Notice of Termination
shall not thereafter be revocable by the Borrower.
(b)(i) If the Borrower elects to exercise its rights
under
subsection (a) of this Section, the Borrower must concurrently
send a notice to the Remaining Banks and the Managing Agent
setting forth the details of (x) a bank that is not then a
party
to this Agreement (a "Substituting Bank") becoming a Bank for
purposes of this Agreement, with Commitments, Loans and Letter
of Credit Liabilities of each Affected Tranche in an amount
equal to the Commitments, Loans and Letter of Credit
Liabilities
of each Affected Tranche of the Terminating Bank, in the place
and stead of the Terminating Bank (y) a bank that is at such
time a party to this Agreement (a "Transferee Bank") accepting
a transfer of the Commitments, Loan and Letter of Credit Lia-
bilities of each Affected Tranche of the Terminating Bank, in
the stead of the Terminating Bank or (z) an increase in the
Commitments, Loans and Letter of Credit Liabilities of each
Affected Tranche of each Remaining Bank in proportion to the
respective Commitments, Loans and Letter of Credit Liabilities
of each Affected Tranche of the Remaining Banks (the aggregate
amount of all such increases in each Affected Tranche to be in
an amount equal to the aggregate amount of the Terminating
Bank's Commitments, Loans and Letter of Credit Liabilities of
such Affected Tranche).
(ii) In order to effect the substitution of parties
contemplated in clause (x) of subsection (b)(i) of this Section
(a "Substitution"), the Borrower shall, on or prior to the
thirtieth Domestic Business Day immediately preceding the
Termination Date applicable to the Terminating Bank, obtain the
consent of the Required Remaining Banks, provided that the
consent of the Required Remaining Banks shall not be required
if, after giving effect to such Substitution, the aggregate
Commitments, Loans and Letter of Credit Liabilities of each
Tranche of all Banks that were Substituting Banks would not
exceed 20% of the aggregate Commitments, Loans and Letter of
Credit Liabilities of such Tranche of the Banks.
(iii) In order to effect the transfer contemplated in
clause
(y) of subsection (b)(i) of this Section (a "Commitment
Transfer"), the Borrower shall, on or prior to the thirtieth
Domestic Business Day immediately preceding the Termination
Date
applicable to the Terminating Bank, obtain the consent of the
Required Remaining Banks, provided that the consent of the
Required Remaining Banks shall not be required if, after giving
effect to such Commitment Transfer, the aggregate Commitments,
Loans and Letter of Credit Liabilities of each Tranche of all
Banks that were Transferee Banks would not exceed 10% of the
aggregate Commitments, Loans and Letter of Credit Liabilities
of
such Tranche of the Banks.
(iv) In order to effect the increase in the Commitments,
Loans and Letter of Credit Liabilities of the Remaining Banks
contemplated in clause (z) of subsection (b)(i) of this Section
(a "Commitment Increase"), the Borrower shall, on or prior to
the sixth Euro-Dollar Business Day immediately preceding the
Termination Date applicable to the Terminating Bank, obtain the
consent of all the Remaining Banks.
(v) If the Borrower obtains the consent of the Remaining
Banks, if any, required pursuant to subsection (b)(ii),
(b)(iii)
or (b)(iv) of this Section, the Borrower shall promptly notify
the Banks and the Managing Agent thereof.
(c) On the Termination Date, and subject to the
provisions
of subsection (f) of this Section, any Commitments, Loans or
Letter
of Credit Liabilities of the Terminating Bank outstanding on such
date (together with accrued interest thereon), accrued commitment
fees on its Commitment and any other amounts then due such Bank
shall be due and payable and, upon receipt of payment of such
amounts, the Terminating Bank shall cease thereafter to be a Bank
for purposes of this Agreement, provided that (i) the Terminating
Bank shall remain liable pursuant to Section 7.06 with respect to
any costs, expenses, claims, demands, actions, losses or
liabilities that arose or accrued during or otherwise relate to
the
period prior to the Termination Date and (ii) the rights of the
Terminating Bank pursuant to Section 9.03 shall survive the
Termination Date.
(d) If, in connection with the repayment of a Bank's
Loans
and termination of a Bank's Commitments and Letter of Credit
Liabilities pursuant to subsection (a) of this Section, the
Borrower shall have obtained the consent of the Remaining Banks
to
a Commitment Increase of the Affected Tranches in accordance with
subsection (b)(iv) of this Section, such Commitment Increase
shall,
subject to subsection (f) of this Section, become effective
without
further act upon receipt by the Terminating Bank of all amounts
due
it pursuant to subsection (c) of this Section and on the
Termination Date the Remaining Banks shall make Loans of each
Affected Tranche, and assume Commitments and Letter of Credit
Liabilities in respect of each Affected Tranche, in substitution
for the Commitments, Loans and Letter of Credit Liabilities of
the
Terminating Bank of such Tranche to be repaid or terminated on
the
Termination Date, in an aggregate amount equal to the amount of
such Commitments, Loan and Letter of Credit Liabilities, the
Commitments, Loan and Letter of Credit Liabilities of each
Remain-
ing Bank to be in proportion to the respective Commitments, Loans
and Letter of Credit Liabilities of the Affected Tranche of the
Remaining Banks.
(e)(i) If, in connection with the repayment of a Bank's
Loans and termination of a Bank's Commitments and Letter of
Credit Liabilities pursuant to subsection (a) of this Section,
the Borrower shall have notified the Remaining Banks and the
Managing Agent of a Substitution or a Commitment Transfer and,
if required, shall have obtained the consent of the Required
Remaining Banks thereto in accordance with subsection (b)(ii)
or
(iii) of this Section, such Substitution or a commitment
transfer shall, subject to subsection (f) of this Section,
become effective on the Termination Date applicable to the
Terminating Bank upon the fulfillment in the case of a
Substitution of the conditions set forth in subsections (e)(ii)
through (e)(v) below and in the case of a Commitment Transfer
of
the condition set forth in subsection (e)(v) below. If the
Borrower shall have delivered a Notice of Borrowing involving
an
Affected Tranche in accordance with Section 2.02 with respect
to
a Borrowing to be made on such Termination Date, and the
provisions of Section 2.04(a) shall have been complied with,
the
Substituting Bank, or the Transferee Bank, as the case may be,
shall, in its capacity as a Bank for purposes of this
Agreement,
make available its ratable share of such Borrowing in
accordance
with Section 2.04(b). If the Issuing Bank shall have made any
demand pursuant to Section 2.16(c) involving an Affected
Tranche
which is payable on such Termination Date, the Substituting
Bank, or the Transferee Bank, as the case may be, shall, in its
capacity as a Bank for all purposes of this Agreement, make
available its ratable share of the Letter of Credit Drawing in
accordance with Section 2.16(c).
(ii) The Borrower, the Managing Agent and the Substituting
Bank shall execute and deliver an appropriate instrument
evidencing that, from and after the Termination Date applicable
to the Terminating Bank, the Substituting Bank has become a
Bank
for purposes of this Agreement. Such instrument (A) may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto
were
on the same instrument and (B) shall be executed and delivered
to the Managing Agent by the other parties thereto no later
than
six Euro-Dollar Business Days prior to such Termination Date
(the "Delivery Date"); provided that no such instrument shall
become effective, and no Substitution contemplated thereby
shall
be consummated, if such instrument is executed and delivered at
any time after the Delivery Date. The Managing Agent shall
promptly notify the other parties to such instrument and the
Remaining Banks as to whether or not it shall have received
executed copies of such instrument on or prior to the Delivery
Date.
(iii) On or prior to the Termination Date, the Borrower
shall deliver to the Managing Agent for the account of the
Substituting Bank (A) a duly executed Note for each Affected
Tranche, dated such date and complying with the provisions of
Section 2.04 and (B) if requested by the Substituting Bank at
least six Euro-Dollar Business Days before the Termination
Date, an opinion of counsel for the Borrower, dated such date,
covering the matters set forth in paragraphs 2 and 3 of
Exhibit B-1 hereto with respect to the Note referred to in
clause (A) above.
(iv) On the Termination Date, the Borrower shall make a
payment to the Managing Agent for the account of the
Terminating
Bank of all amounts due to such Terminating Bank in accordance
with subsection (c) of this Section, and the Managing Agent
shall promptly distribute to such Terminating Bank the amount
of
such payment.
(v) On the Termination Date, the Substituting Bank or the
Transferee Bank, as the case may be, shall make a Loan of each
Affected Tranche, and assume Commitments and Letter of Credit
Liabilities in respect of each Affected Tranche in substitution
for the Commitments, Loans and Letter of Credit Liabilities of
the Terminating Bank of such Tranche to be repaid on the
Termination Date, in an amount equal to the amount of such
Commitments, Loans and Letter of Credit Liabilities of the
Terminating Bank.
(f) Any provision of this Section to the contrary
notwithstanding, if on any Termination Date any Default shall
have
occurred and be continuing or the representation and warranty set
forth in Section 4.04(c) shall not be true and correct on such
date
as if made on such date or the substitute Loans and assumption of
Commitments and Letter of Credit Liabilities to be made on such
Termination Date as provided in subsection (d) or (e)(v) are not
made, (i) neither the Loans of the Terminating Bank nor any other
amount payable to such Bank under this Agreement shall be due and
payable on such date solely on account of the provisions of
subsection (c) of this Section, (ii) the Commitment and Letter of
Credit Liabilities of the Terminating Bank shall not terminate
and
(iii) no Substitution, Commitment Transfer or Commitment Increase
shall become effective pursuant to subsection (d) or (e) of this
Section. On any Termination Date the Borrower shall deliver to
the
Managing Agent a certificate of the President or any Vice
President
of the Borrower stating that (i) no Default has occurred and is
continuing on such date and (ii) the representation and warranty
set forth in Section 4.04(c) is true and correct on such date as
if
made on such date.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest
on,
the Loans and of fees payable hereunder, not later than 11:00
A.M.
(New York City time) on the date when due, without set-off,
counterclaim or other deduction, in Federal or other funds
immediately available in New York City, to the Managing Agent at
its address referred to in Section 9.01. The Managing Agent will
promptly distribute to each Bank its ratable share of each such
payment received by the Managing Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, the
Domestic Loans or of fees shall be due on a day that is not a
Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar
Loans
shall be due on a day that is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls
in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If
the date for any payment of principal is extended by operation of
law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Managing Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to
the Banks hereunder that the Borrower will not make such payment
in
full, the Managing Agent may assume that the Borrower has made
such
payment in full to the Managing Agent on such date and the
Managing
Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that the
Borrower
shall not have so made such payment, each Bank shall repay to the
Managing Agent forthwith on demand such amount distributed to
such
Bank together with interest thereon, for each day from the date
such amount is distributed to such Bank until the date such Bank
repays such amount to the Managing Agent, at the Federal Funds
Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan
(pursuant
to Article II, VI or VIII or otherwise; any conversion of a Fixed
Rate Loan to a Base Rate Loan pursuant to Section 8.04 shall be
treated as a payment of such Fixed Rate Loan on the date of
conversion for purposes of this Section 2.13) on any day other
than
the last day of the Interest Period applicable thereto, or the
end
of an applicable period fixed pursuant to Section 2.05(d), or if
the Borrower fails to borrow any Fixed Rate Loans after notice
has
been given to any Bank in accordance with Section 2.03(a), or if
the Borrower fails to prepay any Fixed Rate Borrowing after
giving
notice of prepayment in accordance with Section 2.10(a), the
Borrower shall reimburse each Bank on demand for any resulting
loss
or expense incurred by it (or by any existing or prospective
Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period
after any such payment or failure to borrow, provided that such
Bank shall have delivered to the Borrower a certificate setting
forth in reasonable detail the amount of such loss or expense,
which certificate shall be conclusive in the absence of manifest
error.
SECTION 2.14. Computation of Interest and Fees. Interest
based on the Prime Rate and fees hereunder shall be computed on
the
basis of a year of 365 days (or 366 days in a leap year) and paid
for the actual number of days elapsed (including the first day
but
excluding the last day). All other interest shall be computed on
the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each Interest Period or period
fixed
pursuant to Section 2.05(d) from and including the first day
thereof but excluding the last day thereof.
SECTION 2.15. Regulation D Compensation. Each Bank may
require the Borrower to pay, contemporaneously with each payment
of
interest on the Euro-Dollar Loans, additional interest on the
related Euro-Dollar Loan of such Bank at a rate per annum equal
to
the excess of (i) (A) the applicable London Interbank Offered
Rate
(or other base rate determined pursuant to Section 2.06(d))
divided
by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
rate specified in clause (i)(A). Any Bank wishing to require
payment of such additional interest (x) shall so notify the
Borrower and the Managing Agent, in which case such additional
interest on the Euro-Dollar Loans of such Bank shall be payable
to
such Bank at the place indicated in such notice with respect to
each related Interest Period commencing at least five Euro-Dollar
Business Days after the giving of such notice and (y) shall
notify
the Borrower and the Managing Agent at least five Euro-Dollar
Business Days prior to each date on which interest is payable on
the Euro-Dollar Loans of the amount then due it under this
Section.
SECTION 2.16. Letters of Credit. (a) Subject to the
terms
and conditions hereof, each Issuing Bank agrees to issue letters
of
credit hereunder from time to time before the 30th day before the
Tranche A Termination Date upon the request of the Borrower (the
"Letters of Credit"); provided that, immediately after each
Letter
of Credit is issued, (i) the aggregate amount of the Letter of
Credit Liabilities shall not exceed the Letter of Credit
Commitment
and (ii) the aggregate amount of the Letter of Credit Liabilities
plus the aggregate outstanding amount of all Tranche A Loans and
Swingline Loans does not exceed the aggregate amount of the
Tranche
A Commitments. Upon the date of issuance by an Issuing Bank of a
Letter of Credit, such Issuing Bank shall be deemed, without
further action by any party hereto, to have sold to each Bank,
and
each Bank shall be deemed, without further action by any party
hereto, to have purchased from such Issuing Bank, a participation
in such Letter of Credit and the related Letter of Credit
Liabilities in the proportion its Tranche A Commitment bears to
the
aggregate Tranche A Commitments.
(b) The Borrower shall give an Issuing Bank notice at
least
10 Domestic Business Days, or such shorter period as may be
agreed
to by an Issuing Bank in any particular instance, prior to the
requested issuance of a Letter of Credit specifying the date such
Letter of Credit is to be issued, and describing the terms of
such
Letter of Credit and the nature of the transactions to be
supported
thereby (such notice, including any such notice given in
connection
with the extension of a Letter of Credit, a "Notice of
Issuance").
Upon receipt of a Notice of Issuance, such Issuing Bank shall
promptly notify the Managing Agent, and the Managing Agent shall
promptly notify each Bank, of the contents thereof and of the
amount of such Bank's participation in such Letter of Credit.
The
issuance by an Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article III, be
subject to the conditions precedent that such Letter of Credit
shall be in such form and contain such terms as shall be
satisfactory to such Issuing Bank and that the Borrower shall
have
executed and delivered such other instruments and agreements
relating to such Letter of Credit as such Issuing Bank shall have
reasonably requested. The extension or renewal of any Letter of
Credit shall be deemed to be an issuance of such Letter of
Credit,
and if any Letter of Credit contains a provision pursuant to
which
it is deemed to be extended unless notice of termination is given
by the relevant Issuing Bank, such Issuing Bank shall timely give
such notice of termination unless it has theretofore timely
received a Notice of Issuance and the other conditions to
issuance
of a Letter of Credit have also theretofore been met with respect
to such extension. No Letter of Credit shall have a term of more
than one year; provided that a Letter of Credit may contain a
provision pursuant to which it is deemed to be extended on an
annual basis unless notice of termination is given by the
relevant
Issuing Bank; provided further that no Letter of Credit shall
have
a term extending or be so extendible beyond the Tranche A
Termination Date.
(c) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit,
the
relevant Issuing Bank shall notify the Managing Agent and the
Managing Agent shall promptly notify the Borrower and each other
Bank as to the amount to be paid as a result of such demand or
drawing and the payment date. The Borrower shall be irrevocably
and unconditionally obligated forthwith to reimburse each Issuing
Bank for any amounts paid by such Issuing Bank upon any drawing
under any Letter of Credit issued by it, without presentment,
demand, protest or other formalities of any kind. All such
amounts
paid by an Issuing Bank and remaining unpaid by the Borrower
shall
bear interest, payable on demand, for each day until paid at a
rate
per annum equal to the sum of 1% plus the rate applicable to
Tranche A Base Rate Loans for such day. In addition, each Bank
will pay to the Managing Agent, for the account of each Issuing
Bank, immediately upon such Issuing Bank's demand at any time
during the period commencing after such drawing until
reimbursement
therefor in full by the Borrower, an amount equal to such Bank's
ratable share of such drawing (in proportion to its participation
therein), together with interest on such amount for each day from
the date of such Issuing Bank's demand for such payment (or, if
such demand is made after Noon (New York City time) on such date,
from the next succeeding Domestic Business Day) to the date of
payment by such Bank of such amount at a rate of interest per
annum
equal to the rate applicable to Tranche A Base Rate Loans for
such
period. Each Issuing Bank will pay to the Managing Agent for the
account of each Bank ratably all amounts received from the
Borrower
for application in payment of its reimbursement obligations in
respect of any Letter of Credit, but only to the extent such Bank
has made payment to such Issuing Bank in respect of such Letter
of
Credit pursuant hereto.
(d) The obligations of the Borrower and each Bank under
subsection (c) above shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with
the
terms of this Agreement, under all circumstances whatsoever,
including without limitation the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit or any document related
hereto or thereto;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of this
Agreement or any Letter of Credit or any document related
hereto or thereto;
(iii) the use which may be made of the Letter of
Credit
by, or any acts or omission of, a beneficiary of a Letter
of Credit (or any Person for whom the beneficiary may be
acting);
(iv) the existence of any claim, set-off, defense or
other rights that the Borrower may have at any time
against
a beneficiary of a Letter of Credit (or any Person for
whom
the beneficiary may be acting), the Banks (including an
Issuing Bank) or any other Person, whether in connection
with this Agreement or any Letter of Credit or any
document
related hereto or thereto or any unrelated transaction;
(v) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent
or invalid in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever;
(vi) payment under a Letter of Credit against
presentation to the relevant Issuing Bank of a draft or
certificate that does not comply with the terms of such
Letter of Credit, provided that such Issuing Bank's
determination that documents presented under such Letter
of
Credit comply with the terms thereof shall not have
constituted gross negligence or willful misconduct of such
Issuing Bank; or
(vii) any other act or omission to act or delay of any
kind by any Bank (including any Issuing Bank), the
Managing
Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions
of this subsection (vii), constitute a legal or equitable
discharge of the Borrower's or the Bank's obligations
hereunder.
(e) The Borrower hereby indemnifies and holds harmless
each
Bank (including each Issuing Bank) and the Managing Agent from
and
against any and all claims, damages, losses, liabilities, costs
or
expenses which such Bank or the Managing Agent may incur
(including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which any Issuing Bank may incur
by
reason of or in connection with the failure of any other Bank to
fulfill or comply with its obligations to such Issuing Bank
hereunder (but nothing herein contained shall affect any rights
the
Borrower may have against such defaulting Bank)), and none of the
Banks (including any Issuing Bank) nor the Managing Agent nor any
of their officers or directors or employees or agents shall be
liable or responsible, by reason of or in connection with the
execution and delivery or transfer of or payment or failure to
pay
under any Letter of Credit, including without limitation any of
the
circumstances enumerated in subsection (d) above, as well as (i)
any error, omission, interruption or delay in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, (ii) any error in interpretation of technical terms,
(iii) any loss or delay in the transmission of any document
required in order to make a drawing under a Letter of Credit,
(iv)
any consequences arising from causes beyond the control of any
Issuing Bank, including without limitation any government acts,
or
any other circumstances whatsoever in making or failing to make
payment under such Letter of Credit; provided that the Borrower
shall not be required to indemnify an Issuing Bank for any
claims,
damages, losses, liabilities, costs or expenses, and the Borrower
shall have a claim for direct (but not consequential) damage
suffered by it, to the extent found by a court of competent
jurisdiction to have been caused by (x) the willful misconduct or
gross negligence of such Issuing Bank in determining whether a
request presented under any Letter of Credit issued by it
complied
with the terms of such Letter of Credit or (y) such Issuing
Bank's
failure to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms
and conditions of such Letter of Credit. Nothing in this
subsection (e) is intended to limit the obligations of the
Borrower
under any other provision of this Agreement.
ARTICLE III
CONDITIONS TO BORROWINGS, ISSUANCES OF
LETTERS OF CREDIT AND EFFECTIVENESS
SECTION 3.01. Conditions to All Borrowings and Issuances
of Letters of Credit. The obligation of each Bank to make a Loan
on the occasion of each Borrowing or of an Issuing Bank to issue
a
Letter of Credit is subject to the satisfaction of the following
conditions:
(a) receipt by the Managing Agent of a Notice of
Borrowing
as required by Section 2.02 or by such Issuing Bank of a Notice
of Issuance as required by Section 2.16;
(b) the fact that, immediately before and after such
Borrowing or Letter of Credit issuance, no Default shall have
occurred and be continuing; and
(c) the fact that the representations and warranties of
the Borrower contained in this Agreement shall be true on and
as
of the date of such Borrowing or Letter of Credit issuance and
the representations and warranties of the Borrower and the
Subsidiaries party to any Operative Agreement contained in the
other Operative Agreements (or, after the Rating Target Date,
the Guarantee Agreements), taken as a whole, shall be true in
all material respects on and as of the date of such Borrowing
or
Letter of Credit issuance.
Each Borrowing and Letter of Credit issuance hereunder shall be
deemed to be a representation and warranty by the Borrower on the
date of such Borrowing as to the facts specified in clauses (b)
and
(c) of this Section.
SECTION 3.02. Conditions to Effectiveness. This
Agreement
shall become effective and the initial Borrowings shall take
place
on the date (the "Effective Date") on which each of the following
conditions shall have been satisfied (or waived in accordance
with
Section 9.04):
(a) receipt by the Managing Agent of (i) a counterpart of
this Agreement from each of the parties hereto duly executed by
such party or (ii), in the case of any Bank or Agent,
confirmation from such Bank or Agent that a counterpart hereof
has been duly executed by such Bank or Agent and sent to the
Managing Agent;
(b) receipt by the Managing Agent of duly executed Notes
(other than a Swingline Note) for the account of each Bank and
a duly executed Swingline Note for the account of the Swingline
Bank, each dated on or before the Effective Date and complying
with the provisions of Section 2.04;
(c) receipt by the Managing Agent of an opinion of McAfee
& Taft A Professional Corporation, special counsel for the
Borrower, substantially in the form of Exhibit B-1 hereto and
an
opinion of General Counsel for the Borrower substantially in
the
form of Exhibit B-2 hereto, in each case covering such
additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(d) receipt by the Managing Agent of an opinion of Davis
Polk & Wardwell, special counsel for the Managing Agent,
substantially in the form of Exhibit C hereto and covering such
additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(e) receipt by the Managing Agent of a certificate signed
by the Chairman of the Board, the Vice Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer, the
Chief Operating Officer, the President or the Treasurer of the
Borrower to the effect that (i) each of the representations and
warranties contained in the Operative Agreements is true and
correct on and as of the date thereof, (ii) no Default has
occurred and is continuing and (iii) the conditions set forth
in
clauses (f), (h), (i), (m) and (n) of this Section 3.02 have
been satisfied;
(f) the commitments under the $400 million Credit
Agreement dated as of October 21, 1993, as amended, among the
Borrower, the banks parties thereto and Morgan Guaranty Trust
Company of New York, as Agent, and the $200 million Credit
Agreement dated as of May 13, 1994 among the Borrower, the
banks
parties thereto and Morgan Guaranty Trust Company of New York,
as Agent (the "Existing Agreements"), shall have been
terminated
and the principal of and interest on all loans outstanding
thereunder and all accrued fees thereunder shall have been paid
in full;
(g) receipt by the Managing Agent from the Borrower (to
the
extent not already paid by the Borrower) of (i) for the account
of
each Agent, the management and participation fees payable to such
Agent as contemplated by the memorandum from J. P. Morgan
Securities, Inc. ("JPMS") to prospective co-agents dated May 14,
1994 and the commitment and facility fees accrued to the date
hereof and payable to such Agent as contemplated by the Summary
of
Terms and Conditions included in the Confidential Report
described
in Section 4.13 and (ii) for its own account and the account of
JPMS, the arrangement, management, participation and, insofar as
accrued to the date hereof, commitment and facility fees payable
to
it and JPMS as contemplated by the Managing Agent's letter to the
Borrower dated May 14, 1994;
(h) the fact that the final structure and terms of the
Haniel Transaction shall not differ in any material respect
from
those set forth in the Stock Purchase Agreement;
(i) that all of the conditions to the effectiveness of
the
Haniel Transaction and the consummation of the transactions
contemplated to occur in connection therewith (other than the
payment of the consideration and the delivery of the stock
certificates thereunder) set forth in the Stock Purchase
Agreement shall have been satisfied (without any material
waiver
or material amendment thereof) and the Banks shall have
received
a copy of each agreement, certificate, opinion of counsel or
other writing delivered in connection therewith or in
satisfaction thereof (and each such certificate or opinion
delivered by or on behalf of the Borrower shall, if requested
by
the Required Banks, be accompanied by a letter from the Person
delivering such certificate or opinion authorizing reliance
thereon by the Banks);
(j) receipt by the Managing Agent from the Borrower and
each other Person listed on Schedule 7(b) hereto of a fully
executed original of each Pledge Agreement, together with
certificates for all of the shares of capital stock of any
Guaranteeing Subsidiary owned by such Person, all in the form
and with such other documentation as is required by such Pledge
Agreement;
(k) receipt by the Managing Agent from the Borrower and
each other Person listed on Schedule 8 hereto of a fully
executed Security Agreement, together with the Uniform
Commercial Code financing statements initially required to be
filed thereunder, all completed, executed and otherwise ready
for filing;
(l) receipt by the Managing Agent from each Person listed
on Schedule 7(a) hereto of a fully executed Guarantee
Agreement;
(m) at least $95 million of the Existing Fleming Debt
listed in item 2 of Part B of Schedule 5 shall have been repaid
in full or arrangements for it being repaid in full on the
Effective Date after the Borrower's receipt of the proceeds of
the Borrowings on the Effective Date shall have been made;
(n) all Existing Haniel Debt listed in items 1 and 2 of
Part B of Schedule 6 shall have been repaid in full or
arrangements for it being repaid in full on the Effective Date
after the Borrower's receipt of the proceeds of the Borrowings
on the Effective Date shall have been made;
(o) receipt by the Managing Agent of evidence
satisfactory
to the Required Banks as to the matters specified in
subsections
(f), (m) and (n) above; and
(p) receipt by the Managing Agent of all documents that
the Managing Agent may reasonably request relating to the
existence of the Borrower, any Material Subsidiary and any
other
Subsidiary executing an Operative Agreement, the corporate
authority for and the validity of each Operative Agreement and
the Notes, and any other matters relevant thereto, all in form
and substance satisfactory to the Managing Agent.
As promptly as practicable after receipt by the Managing Agent of
all the documents referred to in this Section, the Managing Agent
shall notify each of the other parties hereto of the
effectiveness
of this Agreement. Each Bank that is a party to the Existing
Agreements, by its execution hereof, waives with respect to any
notice of termination of the commitments under the Existing
Agreements given on the Effective Date the requirement set forth
in
Section 2.09 of the Existing Agreements that the Borrower give
the
agent under the Existing Agreements three Domestic Business Days'
notice thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower
is a corporation duly incorporated, validly existing and in good
standing under the laws of Oklahoma, and has all corporate powers
and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Borrower of this Agreement and the Notes are within the
Borrower's
corporate powers, 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 and do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation
or by-laws of the Borrower or of any judgment, injunction, order
or
decree or any material agreement or other material instrument
binding upon the Borrower (other than the provisions of any
Existing Fleming Debt and any Existing Haniel Debt as to which
Schedule 5 or 6, as the case may be, states a specific period
following the Effective Date within which it is to be repaid) or
result in the creation or imposition of any Lien (other than
those
contemplated by the Security Documents) on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes
a valid and binding agreement of the Borrower and the Notes, when
executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and
its
Consolidated Subsidiaries as of December 25, 1993 and the related
consolidated statement of earnings and statement of cash flows
for
the fiscal year then ended, reported on by Deloitte & Touche and
set forth in the Borrower's 1993 Form 10-K, a copy of which has
been delivered to each of the Banks, fairly present, in
conformity
with generally accepted accounting principles, the financial
position of the Borrower and its Consolidated Subsidiaries as of
such date and their results of operations and cash flows for such
fiscal year.
(b) The unaudited condensed consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of April 16,
1994
and the related unaudited consolidated statement of earnings and
condensed consolidated statement of cash flows for the 16 weeks
then ended, set forth in the Borrower's quarterly report for the
fiscal quarter ended April 16, 1994 as filed with the Securities
and Exchange Commission on Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in conformity
with
generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in paragraph
(a) of this Section (except for the omission of certain
information
and substantially all footnote disclosure as permitted by
Regulation S-X promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended), the
financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their results of operations and
cash flows for such 16-week period (subject to normal year-end
adjustments).
(c) Since December 25, 1993, there has been no material
adverse change, actual or prospective, in the business, financial
position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. Litigation. Subject to the last sentence
of
this Section and except as set forth in Schedule 3, there is no
action, suit or proceeding pending against, or to the knowledge
of
the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable possibility of an adverse decision that could
materially
adversely affect the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries,
taken
as a whole, or that in any manner draws into question the
validity
of this Agreement or the Notes. The representations and
warranties
in this Section 4.05 shall, insofar as they apply to Haniel
Corporation and its Subsidiaries and insofar as the Borrower
makes
or is deemed to make representations and warranties to that
effect
within 12 months after the Effective Date, be based on the best
of
the Borrower's Knowledge.
SECTION 4.06. Compliance with ERISA. Subject to the last
sentence of this Section and except as set forth in Schedule 4,
each member of the ERISA Group has fulfilled its obligations
under
the minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material
respects with the presently applicable provisions of ERISA and
the
Internal Revenue Code with respect to each Plan. Subject to the
last sentence of this Section and except as set forth in Schedule
4, no member of the ERISA Group has (i) sought a waiver of the
minimum funding standard under Section 412 of the Internal
Revenue
Code in respect of any Plan, (ii) failed to make any contribution
or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA
or
the Internal Revenue Code or (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums
under Section 4007 of ERISA. The representations and warranties
in
this Section 4.06 shall, insofar as they apply to Haniel
Corporation and its Subsidiaries and insofar as the Borrower
makes
or is deemed to make representations and warranties to that
effect
within 12 months after the Effective Date, be based on the best
of
the Borrower's Knowledge.
SECTION 4.07. Environmental Matters. In the ordinary
course of its business, the Borrower reviews the effect of
Environmental Laws on the business, operations and properties of
the Borrower and its Subsidiaries, in the course of which it
evaluates associated liabilities and costs which it has
identified
(including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition
of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent
shutdown
of any facility or reduction in the level of or change in the
nature of operations conducted thereat, any costs or liabilities
in
connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third
parties, including employees, and any related costs and
expenses).
Subject to the following sentence, on the basis of this review,
the
Borrower has reasonably concluded that such associated
liabilities
and costs, including the costs of compliance with Environmental
Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects
of the Borrower and its Consolidated Subsidiaries, considered as
a
whole. The conclusion in the previous sentence shall, insofar as
it applies to Haniel Corporation and its Subsidiaries and insofar
as the Borrower makes or is deemed to make a representation and
warranty to that effect within 12 months after the Effective
Date,
be based on the best of the Borrower's Knowledge.
SECTION 4.08. Taxes. United States Federal income tax
returns of the Borrower and its Material Subsidiaries (other than
Malone & Hyde Inc. and other than Haniel Corporation and any
Material Subsidiaries owned by it) have been examined and closed
through the fiscal year ended December 27, 1986. United States
Federal income tax returns of Malone & Hyde Inc. have been
examined
and closed through the fiscal year ended December 25, 1977.
United
States Federal income tax returns of Haniel Corporation and any
Material Subsidiaries owned by it have been examined and closed
through the fiscal year ended December 31, 1982. The Borrower
and
its Material Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the
Borrower or any Material Subsidiary, except such taxes, if any,
as
are being contested in good faith and as to which adequate
reserves
have been provided. The charges, accruals and reserves on the
books of the Borrower and its Material Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the
Borrower, adequate.
SECTION 4.09. Subsidiaries. Each of the Borrower's
Material Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction
of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company. The Borrower is
not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.11. No Conflicting Requirements. Subject to
the
last sentence of this Section, neither the Borrower nor any
Subsidiary is in violation of, or in default under, any provision
of applicable law, rule or regulation or of its charter or
by-laws
or of any agreement, judgment, injunction, order, decree or other
instrument binding upon it or any of its properties, which
violation or default could reasonably be expected to have
consequences that would materially and adversely affect the
business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, taken as a whole.
The
representations and warranties in this Section 4.11 shall,
insofar
as they apply to Haniel Corporation and its Subsidiaries and
insofar as the Borrower makes or is deemed to make
representations
and warranties to that effect within 12 months after the
Effective
Date, be based on the best of the Borrower's Knowledge.
SECTION 4.12. Haniel Transaction. The execution,
delivery
and performance of the Stock Purchase Agreement and the
consummation of the Haniel Transaction are within the Borrower's
corporate powers and have been duly authorized by the Borrower's
Board of Directors and do not require shareholder approval or any
other corporate action, and (i) except for the filing of a Report
on Form 8-K with the Securities and Exchange Commission, will
require no action by or in respect of, or filing with, any
governmental body, agency or official, (ii) will not contravene,
or
constitute a default under, any provision of applicable law, rule
or regulation applicable to the Borrower or any Material
Subsidiary
or of the charter or by-laws of the Borrower or any Material
Subsidiary or of any material agreement or instrument binding
upon
the Borrower or any Material Subsidiary, other than the
provisions
of any Existing Fleming Debt and any Existing Haniel Debt as to
which Schedule 5 or 6, as the case may be, states a specific
period
following the Effective Date within which it is to be repaid,
(iii)
will not contravene any provision of any judgment, injunction,
order or decree binding upon the Borrower or any Material
Subsidiary and (iv) will not (except as contemplated by the
Security Documents) result in the creation or imposition of any
Lien on any material asset of the Borrower or any Material
Subsidiary, except for any action or filing or any contravention
of
or default under or Lien arising under any law, rule, regulation,
agreement, judgment, order, decree or other instrument not
material
to the business of the Borrower and its Consolidated
Subsidiaries,
taken as a whole, which contravention, default or Lien would not
materially adversely affect the financial position, results of
operations or business of the Borrower and its Consolidated
Subsidiaries, taken as a whole.
SECTION 4.13. Disclosure. Subject to the last sentence
of
this Section, the material furnished to the Managing Agent and
the
Banks by the Borrower (including the Confidential Report dated as
of May 13, 1994 distributed to the Agents as supplemented from
time
to time prior to the Effective Date) in connection with the
negotiation, execution and delivery of this Agreement, taken as a
whole, does not contain as of the date hereof, and did not
contain
at the time so furnished (provided that such time was prior to
the
completion of the General Syndication), any untrue statement of a
material fact and does not as of the date hereof omit, and did
not
omit at the time so furnished, to state any material fact
necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any
projections and appraisals provided by the Borrower to the
Managing
Agent and the Banks in connection herewith were prepared in good
faith on the basis of information and assumptions that the
Borrower
believed to be reasonable as of the date such material was
provided, and the Borrower believes that such assumptions are
reasonable as of the date hereof. The representations and
warranties in this Section 4.13 shall, insofar as they apply to
Haniel Corporation and its Subsidiaries, be based on the best of
the Borrower's Knowledge.
SECTION 4.14. Guarantee Requirement; Certain Collateral
and
Other Matters. Schedule 7(a) hereto lists each Person that, on
the
Effective Date (and after giving effect to the Haniel
Transaction),
will be an initial Guaranteeing Subsidiary. Schedule 7(b) hereto
lists each Person that, on the Effective Date (and after giving
effect to the Haniel Transaction), will be a Subsidiary that,
directly or indirectly, owns any capital stock of an initial
Guaranteeing Subsidiary. Schedule 8 hereto lists each Person
that,
on the Effective Date (and after giving effect to the Haniel
Transaction), will be a Collateral Subsidiary that owns any
Inventory or Receivables (other than only Excepted Inventory and
Excepted Receivables or Intercompany Receivables), provided that
if
on the Effective Date (and after giving effect to the Haniel
Transaction) there was a Collateral Subsidiary not listed on
Schedule 8 that owned Inventory or Receivables (other than only
Excepted Inventory and Excepted Receivables or Intercompany
Receivables), this representation and warranty shall nevertheless
not be incorrect or misleading so long as, if each Collateral
Subsidiary listed on Schedule 8 Pledged its Inventory and
Receivables, the Collateral Requirement would be met. On the
Effective Date (and after giving effect to the Haniel Transaction
and the execution of Guarantee Agreements by the initial
Guarantee-
ing Subsidiaries), the Guarantee Requirement will be met. On the
Effective Date (and after giving effect to the Haniel Transaction
and the execution of Security Agreements by the Collateral
Subsidiaries listed on Schedule 8 hereto and the completion of
the
initial filings contemplated thereby) the Collateral Requirement
will be met. The Borrower and its Subsidiaries have no Debt
Outstanding on the date hereof other than the Existing Fleming
Debt. Haniel Corporation and its Subsidiaries have no Debt
outstanding on the date hereof other than the Existing Haniel
Debt.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment or Letter of Credit Liability hereunder or any amount
payable hereunder or under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to
each of the Banks:
(a) as soon as available and in any event within 95 days
after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of earnings and cash flows for such
fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a
manner acceptable to the Securities and Exchange Commission by
Deloitte & Touche or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each
fiscal
year of the Borrower, (i) a consolidated condensed balance
sheet
of the Borrower and its Consolidated Subsidiaries as of the end
of such quarter setting forth in comparative form the figures
for the previous fiscal year end, (ii) the related consolidated
statement of earnings of the Borrower and its Consolidated
Subsidiaries for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such quarter setting
forth in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's
previous
fiscal year, and (iii) the related consolidated condensed
state-
ment of cash flows of the Borrower and its Consolidated
Subsidiaries for the portion of the Borrower's fiscal year
ended
at the end of such quarter setting forth in comparative form
the
figures for the corresponding portion of the Borrower's
previous
fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted
accounting principles (except for the omission of certain
information and substantially all footnote disclosure as
permitted by Regulation S-X promulgated by the Securities and
Exchange Commission under the Securities Act of 1933, as
amended) and consistency by the chief financial officer or the
chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above,
a certificate of the chief financial officer, treasurer or the
chief accounting officer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish
whether
the Borrower was in compliance with the requirements of
Sections
5.07 to 5.11, inclusive and Sections 5.13, 5.14, 5.16, 5.17 and
5.19 on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and,
if any Default then exists, setting forth the details thereof
and the action which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants that
reported on such statements (i) whether anything has come to
their attention to cause them to believe that any Default
existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above;
(e) within five Domestic Business Days after the
obtaining
of the Borrower's Knowledge of any Default, a certificate of
the
chief financial officer, treasurer or the chief accounting
officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take
with
respect thereto;
(f) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any
registration statements on Form S-8 or its equivalent) and
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) that
the Borrower shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the ERISA Group (i) gives
or
is required to give notice to the PBGC of any "reportable
event"
(as defined in Section 4043 of ERISA) with respect to any Plan
that might constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan administrator
of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV
of ERISA of an intent to terminate, impose liability (other
than
for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such
notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan
(other than The Godfrey Company Subsidiaries Pension Plan under
Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of
withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the
imposition
of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer, treasurer or the
chief accounting officer of the Borrower setting forth details
as to such occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to
take;
(i) forthwith upon (i) any change in the rating
(including
any implied rating) given by S&P or Moody's to the Borrower's
senior long-term unsecured debt, (ii) the placement of any such
debt on CreditWatch with negative implications by S&P or (iii)
the announcement by Moody's that its rating of such debt is
under review for possible downgrading, a certificate of the
chief financial officer or the treasurer of the Borrower to
such
effect, together with a written statement or other writing from
each such rating agency confirming the change in such rating,
the placement of such debt on CreditWatch with negative
implications or the fact that its rating of such debt is under
review for possible downgrading; and
(j) from time to time such additional information
regarding the financial position or business of the Borrower as
the Managing Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Payment of Obligations. The Borrower will
pay and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good faith
by appropriate proceedings or where the failure to do so would
not
materially adversely affect the business, financial position or
results of operations of the Borrower and its Consolidated
Subsidi-
aries, considered as a whole, and will maintain, and will cause
each Subsidiary to maintain, in accordance with generally
accepted
accounting principles, appropriate reserves for the accrual of
any
of the same.
SECTION 5.03. Maintenance of Property; Insurance. (a)
The
Borrower will keep, and will cause each Subsidiary to keep, all
property useful and necessary in its business in good working
order
and condition, ordinary wear and tear excepted, except where the
failure to do so would not materially adversely affect the
business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a
whole.
(b) The Borrower will, and will cause each of its
Subsidiaries to, maintain (either in the name of the Borrower or
in
such Subsidiary's own name) with financially sound and
responsible
insurance companies, insurance on all their respective properties
in at least such amounts and against at least such risks (and
with
such risk retention) as are usually insured against in the same
general area by companies of established repute engaged in the
same
or a similar business; and will furnish to the Banks, upon
request
from the Managing Agent, information presented in reasonable
detail
as to the insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of
Existence. The Borrower will continue, and will cause its
Material
Subsidiaries to continue, to engage in business of the same
general
type as conducted by the Borrower and its Consolidated
Subsidiaries
taken as a whole, and will preserve, renew and keep in full force
and effect, and, except as permitted by Section 5.11, will cause
each Material Subsidiary to preserve, renew and keep in full
force
and effect their respective corporate existence and their respec-
tive rights, privileges and franchises necessary or desirable in
the normal conduct of business.
SECTION 5.05. Compliance with Laws. The Borrower will
comply, and cause each Consolidated Subsidiary to comply, in all
material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity
of
compliance therewith is contested in good faith by appropriate
proceedings or where the failure to do so would not materially
adversely affect the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
SECTION 5.06. Inspection of Property, Books and Records.
The Borrower will keep, and will cause each Material Subsidiary
to
keep, proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in
relation to its business and activities; and will permit, and
will
cause each Subsidiary to permit, representatives of any Bank at
such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired,
provided that this section shall not be construed to require the
Borrower to waive or cause to be waived any attorney-client
privilege applicable to information in the Borrower's or a
Subsidiary's possession. Each Bank agrees to maintain in
confidence any information conspicuously identified by the
Borrower
or any Subsidiary as trade secrets or proprietary information
which
such Bank may obtain as a result of the inspections, examinations
and discussions undertaken pursuant to this section, provided
that
each Bank (i) may discuss any such information with any other
Bank;
(ii) may furnish any such information to its attorneys and
accountants; (iii) may furnish any such information to any
agency,
authority, commission or other regulatory body to whose
jurisdiction it may be subject, to any shareholder, director or
other person to whom it in good faith believes it owes a duty of
disclosure under applicable law and to any other person if
required
by law; and (iv) shall not be prohibited from using, or seeking
to
admit as evidence, any such information in connection with any
litigation to which such Bank is a party.
SECTION 5.07. Leverage Ratio. At no time during any of
the
periods set forth below shall the ratio of Consolidated Debt to
Consolidated Net Worth exceed the applicable ratio set forth
below:
Period Ratio
Effective Date through
December 30, 1995 2.45 to 1
December 31, 1995 through
December 30, 1996 2.25 to 1
December 31, 1996 through
December 30, 1997 2.15 to 1
December 31, 1997 through
December 30, 1998 2.05 to 1
December 31, 1998 through
December 30, 1999 1.95 to 1
Thereafter 1.80 to 1
SECTION 5.08. Minimum Consolidated Net Worth.
Consolidated
Net Worth at any time shall be not less than the sum of (i)
$850,000,000, plus (ii) for each fiscal quarter of the Borrower,
beginning with the fiscal quarter ending October 1, 1994, for
which
Consolidated Net Income is a positive number, 50% of Consolidated
Net Income for such fiscal quarter plus (iii) 50% of the Net
Proceeds of any Equity Issuance occurring during the period from
the Effective Date through the date of calculation.
SECTION 5.09. Fixed Charge Coverage Ratio. As of the
last
day of each fiscal quarter of the Borrower, the ratio of Net
Earnings Available for Fixed Charges to Consolidated Fixed
Charges,
in each case for the four fiscal quarters ending on such day,
shall
not be less than the applicable ratio set forth below:
Period Ratio
Effective Date through
December 30, 1995 1.40 to 1
December 31, 1995 through
December 30, 1996 1.45 to 1
December 31, 1996 through
December 30, 1997 1.55 to 1
December 31, 1997 through
December 30, 1998 1.66 to 1
December 31, 1998 through
December 30, 1999 1.77 to 1
Thereafter 1.90 to 1
provided that Net Earnings Available for Fixed Charges for any
period shall be calculated on a pro forma basis excluding any
charge of up to $105,700,000 for the Borrower Special Charges.
SECTION 5.10. Negative Pledge. Neither the Borrower nor
any Collateral Subsidiary will create, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by it
(including Inventory on consignment), except:
(a) Liens existing on July 19, 1994 and described in
Schedule 2 hereto;
(b) any Lien existing on any asset of any corporation at
the time (if after the Effective Date) such corporation becomes
a Consolidated Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or
assumed (after the Effective Date) for the purpose of financing
all or any part of the cost of acquiring or constructing such
asset (other than, any time prior to the Rating Target Date,
any
Lien on Inventory), provided that such Lien attaches to such
asset concurrently with or within 180 days after the
acquisition
or completion of construction thereof;
(d) any Lien on any asset of any corporation existing at
the time (if after the Effective Date) such corporation is
merged or consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in contemplation of
such
event;
(e) any Lien existing on any asset prior to the
acquisition thereof (if after the Effective Date) by the
Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted
by any of the foregoing clauses of this Section, provided that
such Debt is not increased other than by an amount equal to any
reasonable financing fees and is not secured by any additional
assets;
(g) Liens arising in the ordinary course of its business
which (i) other than landlord's liens, do not secure Debt or
Derivatives Obligations and (ii) either (x) do not in the
aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its
business or (y) are being contested in good faith by
appropriate
proceedings, which proceedings have the effect of preventing
the
forfeiture or sale of the property or asset subject to such
Lien, provided that prior to the Rating Target Date Liens on
Inventory (and Receivables arising therefrom and other proceeds
thereof) in favor of any Person from whom the Borrower or any
Subsidiary has acquired such Inventory shall not be considered
to arise in the ordinary course of business except to the
extent
of Liens of such character on Inventory and related Receivables
having a book value not exceeding $50,000,000 at any time
outstanding;
(h) any Lien on a Financing Receivable or other
receivable
that is transferred in a Permitted Receivables Financing;
(i) Liens in favor of the Borrower or another
Consolidated
Subsidiary;
(j) Liens securing the Haniel Receivables;
(k) Liens not otherwise permitted by the foregoing or
following clauses of this Section securing Debt in an aggregate
principal or face amount at any time outstanding not to exceed
$25,000,000;
(l) Liens securing Debt of the type described in
subsections 5.13(a)(vi) and (vii);
(m) Liens contemplated by the Security Documents;
(n) Liens on cash and cash equivalents securing
Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed
$25,000,000; and
(o) Liens on Inventory (and any Receivables arising from
such Inventory and proceeds thereof) in favor of General
Electric Corporation or any of its Subsidiaries or in favor of
L'eggs Products, A Division of Sara Lee Corporation, to secure
amounts due from the Borrower or any Collateral Subsidiary in
respect of goods sold on consignment.
SECTION 5.11. Mergers, Consolidations and Sales of
Assets.
The Borrower will not, and will not permit any Collateral
Subsidiary to, be a party to any merger or consolidation,
provided
that:
(a) any Subsidiary may consolidate with or merge into the
Borrower or another Subsidiary if in any such merger or
consolidation involving the Borrower, the Borrower shall be the
surviving or continuing corporation;
(b) any other corporation may consolidate with or merge
into the Borrower or any Subsidiary if (i) in any such merger
or
consolidation involving the Borrower, the Borrower shall be the
surviving or continuing corporation, (ii) in any such merger or
consolidation involving a Subsidiary the corporation resulting
from such merger or consolidation shall be a Subsidiary, and
(iii) at the time of such merger or consolidation and after
giving effect thereto no Default shall have occurred and be
continuing;
(c) the Borrower may engage in a reorganization pursuant
to Section 368(a)(1)(F) of the Internal Revenue Code solely for
the purpose of changing its place of organization; and
(d) this paragraph shall not prohibit any merger or
consolidation that would otherwise be permitted under the
immediately following paragraph.
Other than Permitted Receivables Financings, the Borrower
will not, and will not permit any Collateral Subsidiary to, sell,
lease, transfer or otherwise dispose of (by merger or otherwise
to
a Person who is not a Wholly-Owned Subsidiary) all or any part of
its property if such transaction involves a substantial part of
the
property of the Borrower and its Subsidiaries. As used in this
paragraph, a sale, lease, transfer or other disposition of the
property of the Borrower or a Subsidiary shall be deemed to be a
substantial part of such property if the amount of property
proposed to be disposed of when added to the amount of all other
property sold, leased, transferred or disposed of (other than in
the ordinary course of business and other than as permitted by
the
next sentence) during any one fiscal year of the Borrower
contributed more than 20% of Consolidated Net Income for any one
of
the immediately preceding three fiscal years of the Borrower.
Notwithstanding any other provision of this paragraph, the
Borrower
or any Subsidiary may sell, lease, transfer or otherwise dispose
of
one or more warehouse facilities, provided that (i) such
transactions do not in the aggregate involve all or substantially
all of the property of the Borrower and its Subsidiaries and (ii)
the Borrower or any Subsidiary retains the right to receive at
least 85% of the revenue derived from such warehouse facilities,
notwithstanding the sale thereof.
Prior to the Rating Target Date, the Borrower will not,
and
will not permit any Collateral Subsidiary to, make any Asset Sale
unless the portion of the Net Proceeds thereof consisting of
cash,
Temporary Cash Investments and instruments at least equals the
portion of the Net Proceeds thereof allocable to any Collateral
(as
defined in the Security Documents) that is to be released from
the
Lien of the Security Documents in connection therewith.
SECTION 5.12. Use of Any and All Proceeds.
The proceeds of the Loans made under this Agreement will
be used by the Borrower for the Haniel Transaction, including
transaction expenses incurred by the Borrower and its
Subsidiaries
in connection therewith, and for general corporate purposes;
provided that no more than $1,200,000,000 (subject to any
adjustments for working capital fluctuations) of the Loans will
be
used by the Borrower for that portion of the Haniel Transaction
consisting of the purchase of Haniel Corporation and the related
refinancing of outstanding debt of Haniel Corporation and it
Subsidiaries. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any "margin stock" within the
meaning of Regulation U. None of such proceeds will be used in
violation of any applicable law or regulation.
SECTION 5.13. Debt. (a) The Borrower will not, and will
not permit any Collateral Subsidiary to, incur or at any time be
liable with respect to any Debt except:
(i) Debt outstanding under this Agreement, the Notes and
the other Operative Agreements;
(ii) Debt outstanding on the date hereof and listed in
Parts A and C of Schedule 5 and Parts A and D of Schedule 6,
including, except in the case of Debt listed in items 1 and 2
of
Part A of Schedule 6, any extension, renewal or refunding
thereof so long as (A) the principal amount outstanding is not
increased other than by an amount equal to any reasonable
financing fees and (B) such Debt does not mature and is not
subject to mandatory repayment or repurchase at the option of
the holders thereof or otherwise earlier or on more stringent
terms than such Debt was so subject prior to such extension,
renewal or refunding; provided that such Debt may so mature or
be so subject to mandatory repayment or repurchase so long as
neither the Borrower nor any Subsidiary has any obligation to
repay, repurchase or otherwise retire such Debt at any time
when
any Loans, Letter of Credit Liabilities or Commitments are
outstanding hereunder;
(iii) Debt incurred by the Borrower after the date hereof
that has a final maturity at least six months after the Tranche
C Termination Date and no portion of which is subject to
mandatory repayment or repurchase at the option of the holders
thereof or otherwise prior to such time; provided that such
Debt
may be so subject to mandatory repayment or repurchase so long
as neither the Borrower nor any Subsidiary has any obligation
to
repay, repurchase or otherwise retire such Debt at any time
when
any Loans, Letter of Credit Liabilities or Commitments are
outstanding hereunder;
(iv) Debt of the Borrower to a Wholly-Owned Subsidiary or
of a Consolidated Subsidiary to the Borrower or a Wholly-Owned
Subsidiary or Debt of the Borrower to a Subsidiary that is not
a Wholly-Owned Subsidiary that arises out of the Borrower's
cash
management activities in the ordinary course of business;
(v) a Guaranteeing Subsidiary may Guarantee, on terms no
more favorable to the beneficiary than the Guarantee
Agreements,
Debt, the net proceeds of which are used solely to repay
Tranche
B or Tranche C Loans, incurred pursuant to clause (iii) of this
Section 5.13(a); provided that such Debt shall not be secured
by
the Security Documents or otherwise;
(vi) obligations of the Borrower or any Subsidiary as
lessee under capital leases, but only to the extent that the
Borrower or such Subsidiary has entered into (and not
terminated), or has a binding commitment for, subleases on
terms
which, to the Borrower, are at least as favorable, on a current
basis, as the terms of the corresponding capital lease;
(vii) obligations of the Borrower or its Subsidiaries
(other
than as covered by clause (vi) above) as lessee under capital
leases under which the aggregate principal component of the
annual rent payable does not exceed $5,000,000;
(viii) Debt outstanding on the date hereof and listed in
Part
B of Schedule 5 or Parts B and C of Schedule 6, but only during
the periods after the Effective Date specified therefor in such
Schedules;
(ix) the Haniel Receivables;
(x) Debt assumed by the Borrower or any Subsidiary in
connection with an Acquisition (if after the Effective Date)
and
not created in contemplation of such Acquisition; and
(xi) Debt of any corporation outstanding at the time (if
after the Effective Date) such corporation becomes a
Consolidated Subsidiary and not created in contemplation of
such
event;
(xii) Guarantees made by the Borrower or any Subsidiary
constituting Investments made pursuant to Sections 5.17 (vi),
(vii), (ix), (x) and (xi);
(xiii) Debt of the Borrower incurred in order to extend,
renew or refund the ESOP Loan, so long as (A) the principal
amount outstanding is not increased other than by an amount
equal to any reasonable financing fees and (B) such Debt does
not mature and is not subject to mandatory repayment or
repurchase at the option of the holders thereof or otherwise
earlier or on more stringent terms than such Debt was so
subject
prior to such extension, renewal or refunding; provided that
such Debt may so mature or be so subject to mandatory repayment
or repurchase so long as neither the Borrower nor any
Subsidiary
has any obligation to repay, repurchase or otherwise retire
such
Debt at any time when any Loans, Letter of Credit Liabilities
or
Commitments are outstanding hereunder;
(xiv) Guarantees made by the Borrower or any Subsidiary in
connection with a Permitted Receivables Financing to the extent
in excess of any amount described in clause (c) of the proviso
to the definition of Guarantee; and
(xv) other Debt in an aggregate principal amount
outstanding not to exceed $25,000,000, no more than $2,000,000
of which may have been incurred by a Subsidiary.
(b) The Borrower will not, and will not permit any
Collateral Subsidiary to, make any payment of the principal of,
or
repurchase, redeem, defease or otherwise retire, any Debt,
except:
(i) Debt outstanding under this Agreement, the Notes and
the other Operative Agreements;
(ii) Debt outstanding on the date hereof that is repaid on
the Effective Date (or that is designated to be repaid within a
specific period after the Effective Date on Schedule 5 or 6)
with the proceeds of Loans made under this Agreement;
(iii) Debt outstanding on the date hereof and listed
as
items 4 through 10 in Part A of Schedule 6;
(iv) Existing Fleming Debt and Existing Haniel Debt, but
only to the extent of any repayments, repurchases or
redemptions
which the Borrower or its Subsidiaries are obligated to make
under the terms thereof as in effect on the date hereof;
(v) Debt of the Borrower to a Consolidated Subsidiary or
of
a Consolidated Subsidiary to the Borrower or another
Consolidated Subsidiary; and
(vi) Debt of the character described in clauses (iv), (vi),
(vii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of
Section
5.13(a); and
(vii) in connection with the refunding of such Debt where
such refunding is expressly permitted by Section 5.13(a).
SECTION 5.14. Restricted Payments. Neither the Borrower
nor any Subsidiary will declare or make any Restricted Payment
except, so long as no Default has occurred and is continuing,
(i) prior to the Rating Target Date, cash dividends in an
aggregate
amount in any fiscal year of the Borrower not exceeding the
Restricted Payments Cap, and (ii) after the Rating Target Date,
cash dividends in an aggregate amount in any fiscal year of the
Borrower not exceeding the higher of the Restricted Payments Cap
and an amount equal to 33 1/3% of Consolidated Net Income for the
four fiscal quarters most recently ended minus the amount of any
cash dividends declared or made during the three fiscal quarters
immediately preceding the quarter during which such cash dividend
is declared or made. Nothing in this Section shall prohibit the
payment of any dividend or distribution within 45 days after the
declaration thereof if such declaration was not prohibited by
this
Section.
SECTION 5.15. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, directly or
indirectly, pay any funds to or for the account of, make any
investment (whether by acquisition of stock or indebtedness, by
loan, advance, transfer of property, guarantee or other agreement
to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any
assets, tangible or intangible, to, or participate in, or effect
any transaction in connection with any joint enterprise or other
joint arrangement with, any Affiliate; provided however, that the
foregoing provisions of this Section shall not prohibit (a) the
Borrower from declaring or paying any lawful dividend so long as,
after giving effect thereto, no Default shall have occurred and
be
continuing, (b) the Borrower or any Subsidiary from making sales
to
or purchases from any Affiliate and, in connection therewith,
extending credit or making payments, or from making payments for
services rendered by any Affiliate, if such sales or purchases
are
made or such services are rendered in the ordinary course of
business and on terms and conditions at least as favorable to the
Borrower or such Subsidiary as the terms and conditions which
would
apply in a similar transaction with a Person not an Affiliate,
(c)
the Borrower or any Subsidiary from making payments of principal,
interest and premium on any Debt of the Borrower or such
Subsidiary
held by an Affiliate if the terms of such Debt are substantially
as
favorable to the Borrower or such Subsidiary as the terms which
could have been obtained at the time of the creation of such Debt
from a lender which was not an Affiliate, (d) the Borrower or any
Subsidiary from participating in, or effecting any transaction in
connection with, any joint enterprise or other joint arrangement
with any Affiliate if the Borrower or such Subsidiary
participates
in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates
and (e) the Borrower or any Subsidiary from making payments of
reasonable compensation, fees and expenses to their respective
directors and executive officers for services rendered to the
board
of directors of the Borrower or any Subsidiary or any committee
of
any thereof.
SECTION 5.16. Capital Expenditures. The Borrower will
not,
and will cause each Collateral Subsidiary not to, make any
Capital
Expenditures unless the aggregate Capital Expenditures of the
Borrower and its Collateral Subsidiaries in the fiscal year of
the
Borrower in which such Capital Expenditure is made will not
exceed
the amount set forth below for the year in which such Capital
Expenditure is made, provided that this Section 5.16 shall not
apply on and after the Rating Target Date:
Period Amount
Effective Date through
December 31, 1994 155,000,000
January 1, 1995 through
December 31, 1995 155,000,000
January 1, 1996 through
December 31, 1996 160,000,000
January 1, 1997 through
December 31, 1997 165,000,000
January 1, 1998 through
December 31,1998 165,000,000
January 1, 1999 through
December 31, 1999 175,000,000
January 1, 2000 through
December 31, 2000 185,000,000
SECTION 5.17. Acquisitions and Investments. Neither the
Borrower nor any Collateral Subsidiary will make any Acquisitions
or Investments except:
(i) in connection with the Haniel Transaction;
(ii) Temporary Cash Investments;
(iii) Investments by the Borrower in any Wholly-Owned
Subsidiary and Investments by any Wholly-Owned Subsidiary in
the
Borrower or in any other Wholly-Owned Subsidiary;
(iv) any Acquisition or Investment, to the extent the
consideration for which is an Equity Issuance;
(v) the reclassification of any Investment originally
made
in the form of Debt as an Investment by way of capital
contribution or share purchase or the reclassification of any
Investment originally made by way of capital contribution or
share purchase as an Investment in the form of Debt;
(vi) Guarantees by the Borrower or any Subsidiary of the
obligations of any Person other than the Borrower or any
Subsidiary as lessee under capital leases, but only to the
extent that either (A) such Person has entered into (and not
terminated), or has a binding commitment for, subleases on
terms
which, to such Person, are at least as favorable, on a current
basis, as the terms of the corresponding capital lease or (B)
the aggregate principal component of annual rent payable under
such capital leases (excluding any such capital leases
permitted
by subclause (A) of this clause (vi)) does not exceed
$10,000,000;
(vii) a loan of the proceeds of Debt incurred pursuant to
Section 5.13(a)(xiii) to the 1989 ESOP;
(viii) accounts receivable converted to Investments, so long
as such Investments either mature within one year or are in an
outstanding aggregate unrecovered amount (excluding those
maturing within one year) not exceeding $10,000,000 during 1994
and $20,000,000 in each year thereafter;
(ix) Investments resulting from the transactions described
on Schedule 11;
(x) in connection with the Haniel Receivables;
(xi) Guarantees by a Guaranteeing Subsidiary of the
character described in Section 5.13(a)(v); and
(xii) other Acquisitions or Investments (other than
Acquisitions and Investments covered by clauses (i) through
(xi)
above) where the consideration for such Acquisition or
Investment (when aggregated with the total consideration for
all
other Acquisitions and Investments made from the Effective Date
through the applicable date of measurement (other than
Acquisitions and Investments covered by clauses (i) through
(xi)
above)) does not exceed the amount set forth below for the year
in which such Acquisition or Investment is to be made:
Period Amount
Effective Date through
December 31, 1994 $100,000,000
January 1, 1995 through
December 31, 1995 $150,000,000
January 1, 1996 through
December 31, 1996 $200,000,000
January 1, 1997 through
December 31, 1997 $250,000,000
January 1, 1998 through
December 31, 1998 $300,000,000
January 1, 1999 through
December 31, 1999 $350,000,000
Thereafter $400,000,000
provided that as at any time of determination the amount set
forth
above for any year shall be increased by (A) the net proceeds
received at any time after the Effective Date by the Borrower or
any Subsidiary in respect of sales or other transfers of
Financing
Receivables, less any non-contingent amount paid or payable by
the
Borrower or any Subsidiary with respect to credit losses
associated
with, or other recourse to the Borrower or any Subsidiary with
respect to, any such Financing Receivables, (B) the amount of
cash
or Temporary Cash Investments received by the Borrower or any
Subsidiary representing the net proceeds of any loan repayment or
return of capital in respect of an Investment previously made
which
was either permitted only by this subsection (xii) or would have
been permitted only by this subsection (xii) if this Agreement
had
been in effect at the time such Investment was made and (C) the
amount of any Guarantee previously issued which was either
permitted only by this subsection (xii) or would have been
permitted only by this subsection (xii) if this Agreement had
been
in effect at the time such Guarantee was issued, to the extent
such
Guarantee is subsequently terminated without any payment having
been made pursuant thereto.
SECTION 5.18. Interest Rate Protection. At September 30,
1994 the Borrower shall have established ceiling rate or other
interest rate protection with respect to the Loans in a manner
and
upon terms and conditions acceptable to the Required Banks,
either
with financial institutions acceptable to the Required Banks or
with one or more Banks, subject to the following. The Borrower
shall agree with the Required Banks on a projected principal
amount
of Tranche A and Tranche C Loans that will be outstanding on and
after September 30, 1994. The required interest rate protection
must be in respect of an amount equal to at least (a) 50% of the
principal amount of such Loans projected to be outstanding from
time to time minus (b) $150,000,000. The Borrower shall
thereafter
maintain such interest rate protection, provided that the amount
thereof may be decreased from time to time if actual Borrowings
and
repayments would, on a pro forma basis applying the criterion set
forth above, require a lesser amount and no such interest rate
protection need be maintained after the Rating Target Date.
SECTION 5.19. Guarantee Requirement; Other Collateral
Matters. If at any date the Guarantee Requirement is not met,
the
Borrower will promptly cause one or more Subsidiaries that are
not
then Guaranteeing Subsidiaries to execute and deliver a Guarantee
Agreement so as to result in the Guarantee Requirement being met.
If a Subsidiary executes a Guarantee Agreement after the
Effective
Date but prior to the Rating Target Date, the Borrower will
deliver
the capital stock of such new Guaranteeing Subsidiary (or, as the
case may be and if it has not already done so, the capital stock
of
any Subsidiary through which it indirectly owns the capital stock
of such new Guaranteeing Subsidiary) in pledge under the
Borrower's
Pledge Agreement and cause any Subsidiary directly or indirectly
owning capital stock of such new Guaranteeing Subsidiary to
execute, if it has not already done so, a Pledge Agreement with
respect to all shares of capital stock constituting such direct
or
indirect ownership and cause all such actions (including the
filing
of Uniform Commercial Code financing statements) to be taken as
the
Managing Agent may consider necessary or appropriate to ensure
the
validity, binding effect and enforceability of such Pledge
Agreement and the validity, enforceability, perfection and
priority
of the Liens created thereby. After the Effective Date but prior
to the Rating Target Date, the Borrower will not permit any
Collateral Subsidiary to own any Inventory or Receivables (other
than only Excepted Inventory and Excepted Receivables or only
Intercompany Receivables) unless the Collateral Requirement will
be
met.
SECTION 5.20. Limitation on Payment Restrictions
Affecting
Subsidiaries. The Borrower will not, and will not permit any of
its Collateral Subsidiaries to, create or otherwise cause or
suffer
to exist or become effective any consensual restriction on the
ability of any Collateral Subsidiary to pay, directly or
indirectly, to the Borrower any dividends or other distributions
on
such Collateral Subsidiary's capital stock.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of
the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan, shall fail to reimburse any drawing under any Letter
of Credit when required hereunder, or shall fail to pay within
five
days of the due date thereof any interest on any Loan or any fee
payable hereunder;
(b) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.07 to 5.11,
inclusive
or Sections 5.13, 5.14, 5.16 or 5.17;
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement or any other
Operative Agreement (other than those covered by clauses (a) and
(b) above) for 30 days after written notice thereof has been
given
to the Borrower by the Managing Agent at the request of any Bank;
(d) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement (other than such a document covered by
the following portion of this clause (d)) shall prove to have
been
incorrect or misleading in any material respect when made (or
deemed made) or the representations, warranties, certifications
and
statements made by the Borrower and the Subsidiaries party to any
Operative Agreement in the other Operative Agreements and in the
certificates, financial statements and other documents delivered
pursuant to the other Operative Agreements, taken as a whole,
shall
prove to have been incorrect or misleading in any material
respect
when made (or deemed made);
(e) the Borrower or any Material Subsidiary shall fail to
make any payment in respect of any Debt having an aggregate
principal or face amount outstanding amount at such time equal to
or exceeding $5,000,000 (other than the Notes) when due or within
any applicable grace period or the Borrower shall fail to make
any
payment in respect of any Material Derivatives Obligations when
due
or within any applicable grace period;
(f) any event or condition shall occur that results in
the
acceleration of the maturity of any Debt of the Borrower or any
Material Subsidiary having an aggregate principal or face amount
outstanding at such time equal to or exceeding the greater of (i)
$25,000,000 and (ii) 2% of Consolidated Net Worth as at the last
day of the most recently ended fiscal quarter, or enables (or,
with
the giving of notice or lapse of time or both, would enable) the
holder of such Debt or any Person acting on such holder's behalf
to
accelerate the maturity thereof;
(g) the Borrower or any Material Subsidiary shall
commence
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
recei-
ver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they
become
due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law
now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or
any substantial part of its property, and such involuntary case
or
other proceeding shall remain undismissed and unstayed for a
period
of 60 days; or an order for relief shall be entered against the
Borrower or any Material Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
(i) (1) any member of the ERISA Group shall fail to pay
when
due an amount or amounts aggregating in excess of $15,000,000
which
it shall have become liable to pay under Title IV of ERISA; (2)
or
notice of intent to terminate a Material Plan shall be filed
under
Title IV of ERISA by any member of the ERISA Group, any plan
admin-
istrator or any combination of the foregoing; (3) or the PBGC
shall
institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; (4) or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or (5)
there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA (a
"4219
Default"), with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $15,000,000 provided
that,
for purposes of this clause (5), the aggregate liability, if any,
incurred in connection with the withdrawal or partial withdrawal
of
the Borrower or any Subsidiary from any one or more of the
Multiemployer Plans set forth on Schedule 13 hereto shall be
disregarded to the extent such aggregate liability does not
exceed
$2,400,000 while the excess, if any, of such aggregate liability
over $2,400,000 shall be regarded for such purposes; provided
further that the immediately preceding proviso shall not, in the
event of a 4219 Default, apply to any liability or payment
obligation that could be accelerated by the applicable
Multiemployer Plan(s) as a result of such 4219 Default;
(j) a judgment or order for the payment of money in
excess
of $7,500,000 shall be rendered against the Borrower or any
Material Subsidiary and such judgment or order shall continue
unsatisfied in an amount exceeding $7,500,000 and unstayed for a
period of 60 days;
(k) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) other than the 1989 ESOP shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 20% or more
of the outstanding shares of common stock of the Borrower; or,
during any period of 12 consecutive calendar months, individuals
who were directors of the Borrower on the first day of such
period
shall cease to constitute a majority of the board of directors of
the Borrower; or
(l) at any time prior to the Rating Target Date, the
Liens
created by the Security Documents shall for any reason not
constitute valid and perfected Liens subject to no prior or equal
Lien other than Permitted Liens (as defined in the Security
Agreements), or the Borrower shall so assert in writing;
then, and in every such event, the Managing Agent shall (i) if
requested by the Required Banks, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, and
(ii) if requested by Banks holding Notes evidencing more than 50%
in aggregate principal amount of the Loans, by notice to the
Borrower declare the Notes and any Letter of Credit Liabilities
(together with accrued interest and Letter of Credit Fees
thereon)
to be, and the Notes and any Letter of Credit Liabilities shall
thereupon become, immediately due and payable without
presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that in the case of any
of
the Events of Default specified in clause (g) or (h) above with
respect to the Borrower, without any notice to the Borrower or
any
other act by the Managing Agent or the Banks, the Commitments
shall
thereupon terminate and the Notes and any Letter of Credit
Liabilities (together with accrued interest and Letter of Credit
Fees thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Managing Agent
shall give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
SECTION 6.03. Cash Cover. The Borrower agrees, in
addition
to the provisions of Section 6.01 hereof, that upon the
occurrence
and during the continuance of any Event of Default, it shall, if
requested by the Managing Agent upon the instruction of the Banks
having more than 50% in aggregate amount of the Tranche A
Commitments (or, if the Tranche A Commitments shall have been
terminated, holding at least 50% of the Letter of Credit
Liabilities), pay to the Managing Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant
to arrangements satisfactory to the Managing Agent) equal to the
aggregate amount available for drawing under all Letters of
Credit
then outstanding at such time, provided that, upon the occurrence
of any Event of Default specified in clause (g) or (h) of Section
6.01 with respect to the Borrower, the Borrower shall pay such
amount forthwith without any notice or demand or any other act by
the Managing Agent or the Banks.
ARTICLE VII
THE MANAGING AGENT AND THE AGENTS
SECTION 7.01. Appointment and Authorization. Each
Bank
irrevocably appoints and authorizes the Managing Agent and the
Agents to take such action as managing agent or agent, as the
case
may be, on its behalf and to exercise such powers under the
Operative Agreements as are delegated to the Managing Agent or
the
Agents, as the case may be, by the terms hereof or thereof,
together with all such powers as are reasonably incidental
thereto.
SECTION 7.02. Managing Agent, Agents and Affiliates.
Morgan Guaranty Trust Company of New York and each other bank
listed on as an Agent on the signature pages hereof shall have
the
same rights and powers under the Operative Agreements as any
other
Bank and may exercise or refrain from exercising the same as
though
they were not the Managing Agent, or Agents, as the case may be,
and Morgan Guaranty Trust Company of New York and such other
banks
and their respective affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or affiliate of the Borrower as if
they
were not the Managing Agent or Agents, as the case may be,
hereunder.
SECTION 7.03. Action by Managing Agent and Agents.
The
obligations of the Managing Agent and the Agents under the
Operative Agreements are only those expressly set forth herein
and
in the other Operative Agreements. Without limiting the
generality
of the foregoing, neither the Managing Agent nor the Agents shall
be required to take any action with respect to any Default,
except
as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Managing
Agent and the Agents may consult with legal counsel (who may be
counsel for the Borrower), independent public accountants and
other
experts selected by them and shall not be liable for any action
taken or omitted to be taken by them in good faith in accordance
with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Managing Agent and Agents.
Neither the Managing Agent, any Agent nor any of their respective
directors, officers, agents or employees shall be liable for any
action taken or not taken by them in connection herewith (i) with
the consent or at the request of the Required Banks or (ii) in
the
absence of their own gross negligence or willful misconduct.
Neither the Managing Agent, any Agent nor any of their respective
directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with any
Operative Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements
of
the Borrower; (iii) the satisfaction of any condition specified
in
Article III, except receipt of items required to be delivered to
the Managing Agent; or (iv) the validity, effectiveness or
genuineness of any Operative Agreement or any other instrument or
writing furnished in connection herewith. Neither the Managing
Agent nor any Agent shall incur any liability by acting in
reliance
upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex, facsimile or similar writing)
believed by them to be genuine or to be signed by the proper
party
or parties.
SECTION 7.06. Indemnification. Each Bank shall,
ratably
in accordance with its Commitment, indemnify the Managing Agent,
the Agents, their affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by
the
Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except
such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in
connection
with any Operative Agreement or any action taken or omitted by
such
indemnitees thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Managing
Agent, any Agent or any other Bank, and based on such documents
and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank
also
acknowledges that it will, independently and without reliance
upon
the Managing Agent, any Agent or any other Bank, 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
any action under this Agreement.
SECTION 7.08. Successor Managing Agent and Agents.
The
Managing Agent or any Agent may resign at any time by giving
written notice thereof to the Banks and the Borrower. Upon any
resignation of the Managing Agent, the Required Banks shall have
the right to appoint a successor Managing Agent. If no successor
Managing Agent shall have been so appointed by the Required
Banks,
and shall have accepted such appointment, within 30 days after
the
retiring Managing Agent gives notice of resignation, then the
retiring Managing Agent may, on behalf of the Banks, appoint a
successor Managing Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and
surplus of at least $100,000,000. Upon the acceptance of its
appointment as Managing Agent hereunder by a successor Managing
Agent, such successor Managing Agent shall thereupon succeed to
and
become vested with all the rights and duties of the retiring
Managing Agent, and the retiring Managing Agent shall be
discharged
from its duties and obligations hereunder. After any retiring
Managing Agent's resignation hereunder as Managing Agent, the
provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Managing
Agent.
SECTION 7.09. Managing Agent's Fees. The Borrower
shall
pay to the Managing Agent for its own account fees in the amounts
and at the times previously agreed upon between the Borrower and
the Managing Agent.
SECTION 7.10 Collateral Agent. Each Bank (i)
irrevocably
appoints and authorizes the Managing Agent, as Collateral Agent
under the other Operative Agreements, to take such action as
agent
on its behalf and to exercise such powers under the other
Operative
Agreements as are delegated to the Collateral Agent by the terms
thereof, together with all such powers as are reasonably
incidental
thereto, and (ii) agrees to be bound by the provisions of each
such
Agreement relating to the Collateral Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period for any Fixed Rate Borrowing:
(a) the Managing Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant market for
such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks
having 50% or more of the aggregate principal amount of the
affected Loans advise the Managing Agent that the Adjusted CD
Rate or the London Interbank Offered Rate, as the case may be,
as determined by the Managing Agent will not adequately and
fairly reflect the cost to such Banks of funding their CD Loans
or Euro-Dollar Loans, as the case may be, for such Interest
Period,
the Managing Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Managing Agent
notifies
the Borrower that the circumstances giving rise to such
suspension
no longer exist, (i) the obligations of the Banks to make CD
Loans
or Euro-Dollar Loans, as the case may be, or to convert
outstanding
Loans into CD Loans or Euro-Dollar Loans, as the case may be,
shall
be suspended and (ii) each outstanding CD Loan or Euro-Dollar
Loan,
as the case may be, shall be converted into a Base Rate Loan on
the
last day of the then current Interest Period applicable thereto.
Unless the Borrower notifies the Managing Agent at least one
Domestic Business Day before the date of (or, if at the time the
Borrower receives such notice the day is the date of such Fixed
Rate Borrowing, by 10:00 A.M. (New York City time) on the day of)
any Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, on or after the date of
this
Agreement, the adoption of any applicable law, rule or
regulation,
or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by
any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it
unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans and such Bank shall
so
notify the Managing Agent, the Managing Agent shall forthwith
give
notice thereof to the other Banks and the Borrower, whereupon
until
such Bank notifies the Borrower and the Managing Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or to convert
outstanding Loans into Euro-Dollar Loans, shall be suspended.
Before giving any notice to the Managing Agent pursuant to this
Section, such Bank shall designate a different Euro-Dollar
Lending
Office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each
Euro-
Dollar Loan of such Bank then outstanding shall be converted to a
Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Bank
may lawfully continue to maintain and fund such Loan to such day
or
(b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If
on or after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof,
or compliance by any Bank (or its Applicable Lending Office) with
any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable Lending
Office) to any tax, duty or other charge with respect to its
Fixed Rate Loans, its Note or its obligation to make Fixed Rate
Loans, or shall change the basis of taxation of payments to any
Bank (or its Applicable Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts due under
this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the
rate of tax on the overall net income of such Bank or its
Applicable Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Applicable Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by
the Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage and (B)
with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage),
special deposit, insurance assessment (excluding, with respect
to any CD Loan, any such requirement reflected in an applicable
Assessment Rate) or similar requirement against Letters of
Credit issued or participated in by, assets of, deposits with
or
for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any
other
condition affecting its Fixed Rate Loans, its Note or its
obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or of issuing or maintaining a
Letter of Credit or its obligations with respect thereto as
Issuing
Bank or a Bank participating therein, or to reduce the amount of
any sum received or receivable by such Bank (or its Applicable
Lending Office) under this Agreement or under its Note with
respect
thereto, by an amount deemed by such Bank to be material, then,
within 15 days after demand by such Bank (with a copy to the
Managing Agent), the Borrower shall pay to such Bank such
additional amount or amounts, as determined by such Bank in good
faith, as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that, after the
date
hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule
or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof,
or 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 capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below
that which such Bank (or its Parent) could have achieved but for
such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by
an
amount deemed by such Bank to be material, then from time to
time,
within 15 Domestic Business Days after demand by such Bank (with
a
copy to the Managing Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank
(or
its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Managing Agent of any event of which it has knowledge, occurring
after the date hereof, that will entitle such Bank to
compensation
pursuant to this Section and will designate a different
Applicable
Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank.
A certificate of any Bank claiming compensation under this
Section
and setting forth in reasonable detail the additional amount or
amounts to be paid to it hereunder shall be conclusive in the
absence of manifest error. In determining such amount, such Bank
may use any reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected
Fixed Rate Loans. If (i) the obligation of any Bank to make or
maintain Euro-Dollar Loans has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section
8.03(a) and the Borrower shall, by at least four Euro-Dollar
Business Days' prior notice to such Bank through the Managing
Agent, have elected that the provisions of this Section shall
apply
to such Bank, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such suspension or
demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank
as (or continued as or converted into) CD Loans or Euro-Dollar
Loans, as the case may be, shall instead be Base Rate Loans (on
which interest and principal shall be payable contemporaneously
with the related Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as
the case may be, has been repaid (or converted to a Base Rate
Loan), all payments of principal that would otherwise be
applied
to repay such Fixed Rate Loans shall be applied to repay its
Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving
rise to such notice no longer apply, the principal amount of each
such Base Rate Loan shall be converted into a CD Loan or Euro-
Dollar Loan, as the case may be, on the first day of the next
succeeding Interest Period applicable to the related CD Loans or
Euro-Dollar Loans of the other Banks.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other
communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of
the
Borrower or the Managing Agent, at its address or telex or
facsimile number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or telex or facsimile number
set forth in its Administrative Questionnaire or (z) in the case
of
any party, such other address or telex or facsimile number as
such
party may hereafter specify for the purpose by notice to the
Managing Agent and the Borrower. Each such notice, request or
other communication shall be effective (i) if given by telex,
when
such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given
by facsimile transmission, when receipt of such transmission is
confirmed, either orally or in writing, by the party receiving
such
transmission, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Managing Agent and the Issuing Bank
under Article II or Article VIII shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by the
Managing Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other
right, power or privilege. The rights and remedies herein
provided
shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification. (a) The Borrower shall pay (i) all reasonable
out-of-pocket expenses of the Managing Agent, including fees and
disbursements of special counsel for the Managing Agent, in
connection with the preparation of this Agreement and the other
Operative Documents, any waiver or consent hereunder or
thereunder
or any amendment hereof or thereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Managing Agent,
any Agent or any Bank, including fees and disbursements of
counsel,
in connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom. The Borrower shall
indemnify each Bank to the maximum extent permitted by applicable
law against any transfer taxes, documentary taxes, assessments or
charges made by any governmental authority by reason of the
execution and delivery of this Agreement, the Notes or any other
Operative Document.
(b) The Borrower agrees to indemnify the Managing Agent,
each Agent and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee
harmless
from and against any and all liabilities, losses, damages, costs
and expenses of any kind, including, without limitation,
settlement
costs and the reasonable fees and disbursements of counsel, which
may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or
not such Indemnitee shall be designated a party thereto) brought
or
threatened relating to or arising out of this Agreement or any
actual or proposed use of proceeds of Loans hereunder; provided
that no Indemnitee shall have the right to be indemnified
hereunder
for such Indemnitee's own gross negligence or willful misconduct
as
determined by a court of competent jurisdiction.
SECTION 9.04. Amendments and Waivers. Except as
otherwise provided in Section 2.11, any provision of the
Operative
Agreements may be amended or waived if, but only if, such
amendment
or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Managing
Agent
or the Issuing Banks are affected thereby, by the Managing Agent
or
the Issuing Banks, as the case may be); provided that, except as
otherwise provided in Section 2.11, no such amendment or waiver
shall, unless signed by all the Banks, (i) increase the
Commitment
of any Bank or subject any Bank to any additional obligation,
(ii) reduce the principal of or rate of interest on any Loan, any
amount to be reimbursed hereunder or interest thereon or any fees
hereunder, (iii) except in the case of an amendment or waiver to
Section 2.09(b) or the related definitions, postpone the date
fixed
for any payment of principal of or interest on any Loan, any
amount
to be reimbursed hereunder or interest thereon or any fees
hereunder or for any reduction or termination of any Commitment
or
(iv) amend this Section 9.04 or Section 9.05(a) or change the
percentage of the Commitments or of the aggregate unpaid
principal
amount of the Notes or of the Letter of Credit Liabilities, or
the
number of Banks, which shall be required for the Banks or any of
them to take any action under this Section or any other provision
of this Agreement and provided further that except in the case of
the termination of a Guarantee Agreement or any release of
Collateral (as defined in the Security Documents) under any
Security Document in connection with any Asset Sale permitted by
this Agreement (which shall be subject to the applicable
provisions
of such Guarantee or Security Document but shall not require the
consent of the Managing Agent or any Bank), no such amendment or
waiver shall, unless signed by the Releasing Banks, terminate any
Guarantee Agreement or, prior to the Rating Target Date, release
any or all of the Collateral.
SECTION 9.05. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the
benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks
or other institutions (each a "Participant") partici-pating
interests in its Commitment or any or all of its Loans. In the
event of any such grant by a Bank of a participating interest to
a
Participant, whether or not upon notice to the Borrower and the
Managing Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and
the
Managing Agent shall continue to deal solely and directly with
such
Bank in connection with such Bank's rights and obligations under
this Agreement. Any agreement pursuant to which any Bank may
grant
such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations
of the Borrower hereunder including, without limitation, the
right
to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (ii) or
(iii) of Section 9.04 without the consent of the Participant.
The
Borrower agrees that each Participant shall, to the extent
provided
in its participation agreement, be entitled to the benefits of
Section 2.15 and Article VIII with respect to its participating
interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more
banks
or other institutions (each an "Assignee") all, or any part
(equivalent, except where the Assignee is already a Bank, to an
initial Commitment for each Tranche of not less than $15,000,000)
of, its rights and obligations under this Agreement and the
Notes,
and such Assignee shall assume such rights and obligations,
pursuant to an Assignment and Assumption Agreement in
substantially
the form of Exhibit D hereto executed by such Assignee and such
transferor Bank with (and subject to) the subscribed consent of
the
Borrower, the Managing Agent and the Issuing Banks, which
consents
shall not be unreasonably withheld; provided that (i) if an
Assignee is an affiliate of such transferor Bank, no such consent
shall be required and (ii) any assignment made by a Bank party
hereto on the date hereof in connection with the General
Syndication to a bank or other institution listed on Schedule 10
shall not require any such consent. Upon execution and delivery
of
such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be
released
from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon
the
consummation of any assignment pursuant to this subsection (c),
the
transferor Bank, the Managing Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is
issued
to the Assignee. In connection with any such assignment (other
than pursuant to the General Syndication), the transferor Bank
shall pay to the Managing Agent an administrative fee for
processing such assignment in accordance with the Managing
Agent's
standard schedule for such charges in effect at the time of such
assignment.
(d) Any Bank may at any time assign all or any portion
of its rights under this Agreement and its Note to a Federal
Reserve Bank. No such assignment shall release the transferor
Bank
from its obligations hereunder.
(e) No Assignee, Participant or other transferee of
any
Bank's rights shall be entitled to receive any greater payment
under Section 8.03 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such
transfer is made pursuant to the General Syndication or with the
Borrower's prior written consent or by reason of the provisions
of
Section 8.02 or 8.03 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a
time
when the circumstances giving rise to such greater payment did
not
exist.
(f) If any Reference Bank assigns all of its Notes to
any unaffiliated institution, the Managing Agent shall, in
consultation with the Borrower and with the consent of the
Required
Banks, appoint another Bank to act as a Reference Bank hereunder.
SECTION 9.06. Collateral. Each of the Banks
represents
to the Managing Agent and each of the other Banks that it in good
faith is not relying upon any "margin stock" (as defined in
Regulation U) as collateral in the extension or maintenance of
the
credit provided for in this Agreement.
SECTION 9.07. Governing Law; Submission to
Jurisdiction;
Waiver of Jury Trial. THIS AGREEMENT AND EACH NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE
OF NEW YORK. THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN
NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND
ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE BORROWER, THE
MANAGING AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND
ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.08. Counterparts; Integration. This
Agreement
may be signed in any number of counterparts, each of which shall
be
an original, with the same effect as if the signatures thereto
and
hereto were upon the same instrument. The Operative Agreements
and
the documents referred to in clause (g) of Section 3.02
constitute
the entire agreement and understanding among the parties hereto
and
supersede any and all prior agreements and understandings, oral
or
written, relating to the subject matter hereof.
SECTION 9.09. Sharing of Set-Offs. Each Bank agrees that
if it shall, by exercising any right of set-off or counterclaim
or
otherwise, receive payment of a proportion of the aggregate
amount
of principal and interest due with respect to any Note held by it
or receives payment in respect of its Letter of Credit
Liabilities
which in either case is greater than the proportion received by
any
other Bank in respect of the aggregate amount due with respect to
any Note held by, or Letter of Credit Liabilities owing to, such
other bank, the Bank receiving such proportionately greater
payment
shall purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required
so that all such payments with respect to the Notes held by, and
Letter of Credit Liabilities owing to, the Banks shall be shared
by
the Banks pro rata; provided that nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other
than
its indebtedness hereunder. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of
set-
off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were
a
direct creditor of the Borrower in the amount of such
participation.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
FLEMING COMPANIES, INC.
By /s/ Robert E. Stauth
Title: Chairman of the Board,
Chief Executive Officer
and President
P.O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
Telecopier: 405/840-7202
BANKS
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Michael C. Mauer
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ J. Stephen Mernick
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /s/ A.S. Norsworthy
Title: Assistant Agent
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ J.D. Westland
Title: Authorized Signatory
CREDIT SUISSE
By /s/ Geoffrey M. Craig
Title: Member of Senior
Management
By /s/ Kristinn R. Kristinsson
Title: Associate
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Dr. Hans-Dieter Wettlaufer
Title: Vice President
By /s/ Jean M. Hannigan
Title: Assistant Vice President
THE FUJI BANK, LIMITED
By /s/ David Kelley
Title: Vice President and
Senior Manager
NATIONSBANK OF TEXAS, N.A.
By /s/ Bianca Hemmen
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ Richard Lewis
Title: Assistant Vice President
By /s/ Matthew C. Flanigan
Title: First Vice President and
Manager
THE SUMITOMO BANK LTD.
HOUSTON AGENCY
By /s/ Tatsuo Ueda
Title: General Manager
THE SUMITOMO BANK OF CALIFORNIA
By /s/ Seishi Jiromaru
Title: Vice President
Division Manager
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By /s/ Robert W. Bishop
Title: Vice Chairman
THE TORONTO-DOMINION BANK
By /s/ F.B. Hawley
Title: Manager
Credit Association
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By /s/ Alfred W. Imholz
Title: First Vice President
By /s/ Jan Buettgen
Title: Assistant Vice President
BANCA DI ROMA SpA
By /s/ O.W. Cheney Jr.
Title: Chief Manager
By /s/ Josefina M. Madrid
Title: Assistant Vice President
BANK IV OKLAHOMA, N.A.
By /s/ Paul Anderson
Title: Vice President
BANK OF HAWAII
By /s/ Joseph T. Donalson
Title: Vice President
THE BANK OF TOKYO, LTD.,
DALLAS AGENCY
By /s/ John M. Mearns
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ Iain A. Whyte
Title: Assistant Vice President
By /s/ Mark A. Harrington
Title: Vice President and
Regional Manager
BANQUE NATIONALE DE PARIS
By /s/ Henry F. Setina
Title: Vice President
BANQUE PARIBAS
By /s/ Robert G. Shaw
Title: Vice President
By /s/ Pierre-Jean de Filippis
Title: General Manager
BARCLAYS BANK PLC
By /s/ David Vickrey
Title: Associate Director
BAYERISCHE VEREINSBANK AG,
LOS ANGELES AGENCY
By /s/ John Carlson
Title: Assistant Vice President
By /s/ Sylvia K. Cheng
Title: Assistant Vice President
BHF-BANK, NEW YORK BRANCH
By /s/ Paul Travers
Title: Vice President
By /s/ David Fraenkel
Title: Vice President
BOATMEN'S FIRST NATIONAL BANK
OF OKLAHOMA
By /s/ K. Randy Roper
Title: Senior Vice President
THE CHASE MANHATTAN BANK, N.A.
By /s/ Thomas T. Daniels
Title: Vice President
CITIBANK N.A.
By /s/ W. P. Stengel
Title: Vice President
COMMERZBANK AG, NEW YORK AND/OR
GRAND CAYMAN BRANCH
By /s/ J. Schmieding
Title: Assistant Vice President
By /s/ W. Niemeyer
Title: Vice President
CONTINENTAL BANK
By /s/ Mary Jo Hoch
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ Ian Reece
Title: Vice President and
Manager
By /s/ J. Scott Taylor
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Robert Ivosevich
Title: Senior Vice President
DAI-ICHI KANGYO BANK, LTD.
NEW YORK BRANCH
By /s/ Seiji Imai
Title: Assistant Vice President
DAIWA BANK TRUST COMPANY
By /s/ Kenro Kojima
Title: Vice President
By /s/ Joel Limjap
Title: Vice President
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK
By /s/ Norah McCann
Title: Senior Vice President
By /s/ Karen A. Brinkman
Title: Vice President
DRESDNER BANK AG
NEW YORK BRANCH
By /s/ R. Matthew Scherer
Title: Vice President
By /s/ Charles H. Hill
Title: Vice President
FIRST HAWAIIAN BANK
By /s/ Robert M. Wheeler, III
Title: Vice President
FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ William J. Baird
Title: Vice President
By /s/ Wendy V.C. Purcell
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Jeanette Ganousis
Title: Vice President
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/ A. Kimball Collins
Title: Assistant Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ Maryann S. Smith
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
By /s/ Robert W. Ramage, Jr.
Title: Senior Vice President
KREDIETBANK N.V.
By /s/ Robert Snauffer
Title: Vice President
By /s/ Diane Grimmig
Title: Vice President
LIBERTY BANK AND TRUST COMPANY
OF OKLAHOMA CITY, N.A.
By /s/ Laura Christofferson
Title: Vice President
LTCB TRUST COMPANY
By /s/ Noboru Kubota
Title: Senior Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By /s/ Geoffrey R. Fenn
Title: Vice President
THE MITSUBISHI BANK, LIMITED
HOUSTON AGENCY
By /s/ Shoji Honda
Title: General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Masaaki Yamagishi
Title: Chief Manager
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By /s/ Margaret Holloway
Title: Vice President
NATIONAL WESTMINSTER BANK Plc
NASSAU BRANCH
By /s/ David L. Smith
Title: Vice President
NATIONAL WESTMINSTER BANK Plc
NEW YORK BRANCH
By /s/ David L. Smith
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Perry G. Pelos
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Gregory T. Gaschler
Title: Vice President
THE SANWA BANK LIMITED,
DALLAS AGENCY
By /s/ Blake Wright
Title: Assistant Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ Blake R. Howells
Title: Vice President
WACHOVIA BANK OF GEORGIA,
NATIONAL ASSOCIATION
By /s/ Terry L. Akins
Title: Senior Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/ Rohn Laudenschlager
Title: Senior Vice President
AGENTS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By /s/ Jody B. Schneider
Title: Vice President
THE BANK OF NOVA SCOTIA, as Agent
By /s/ A.S. Norsworthy
Title: Assistant Agent
CANADIAN IMPERIAL BANK OF COMMERCE,
as
Agent
By /s/ J.D. Westland
Title: Authorized Signatory
CREDIT SUISSE, as Agent
By /s/ William P. Murray
Title: Member of Senior
Management
By /s/ Kristinn R. Kristinsson
Title: Associate
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as Agent
By /s/ Dr. Hans-Dieter Wettlaufer
Title: Vice President
By /s/ Jean M. Hannigan
Title: Assistant Vice President
THE FUJI BANK, LIMITED, as Agent
By /s/ David Kelley
Title: Vice President and
Senior Manager
NATIONSBANK OF TEXAS, N.A.,
as Agent
By /s/ Bianca Hemmen
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY,
as Agent
By /s/ Richard M. Lewis
Title: Assistant Vice President
By /s/ Matthew C. Flanigan
Title: First Vice President
THE SUMITOMO BANK LTD.
HOUSTON AGENCY, as Agent
By /s/ Tatsuo Ueda
Title: General Manager
TEXAS COMMERCE BANK,
NATIONAL ASSOCIATION, as Agent
By /s/ John P. Dean
Title: Senior Vice President
THE TORONTO-DOMINION BANK, as Agent
By /s/ F.B. Hawley
Title: Manager
Credit Administration
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY, as Agent
By /s/ Alfred W. Imholz
Title: First Vice President
By /s/ Jan Buettgen
Title: Assistant Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Managing Agent
By /s/ Michael C. Mauer
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615
Telecopier number: (212) 648-5336
EXHIBIT A-1
TRANCHE A NOTE
New York, New
York
[Dated on or
before
the Effective
Date]
For value received, Fleming Companies, Inc., an
Oklahoma corporation (the "Borrower"), promises to pay to
the order of _______________________ (the "Bank"), for the
account of its Applicable Lending Office, the unpaid
principal amount of each Tranche A Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to
below on the maturity date provided for in the Credit
Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Tranche A Loan on the
dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in
Federal or other immediately available funds at the office
of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Tranche A Loans made by the Bank, the
respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each Tranche A Loan
then outstanding shall be endorsed by the Bank on the
schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of July 19, 1994 among the
Borrower, the banks and the agents listed on the signature
pages thereof and Morgan Guaranty Trust Company of New York,
as Managing Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the
mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
FLEMING COMPANIES, INC.
By ______________________
Name: John M. Thompson
Title: Vice President &
Treasurer
Tranche A Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date
Amount of
Loan
Type of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT A-2
TRANCHE B NOTE
New York, New
York
[Dated on or
before
the Effective
Date]
For value received, Fleming Companies, Inc., an
Oklahoma corporation (the "Borrower"), promises to pay to
the order of _______________________ (the "Bank"), for the
account of its Applicable Lending Office, the unpaid
principal amount of each Tranche B Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to
below on the maturity date provided for in the Credit
Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Tranche B Loan on the
dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in
Federal or other immediately available funds at the office
of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Tranche B Loans made by the Bank, the
respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each Tranche B Loan
then outstanding shall be endorsed by the Bank on the
schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of July 19, 1994 among the
Borrower, the banks and the agents listed on the signature
pages thereof and Morgan Guaranty Trust Company of New York,
as Managing Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the
mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
FLEMING COMPANIES, INC.
By ______________________
Name: John M. Thompson
Title: Vice President
& Treasurer
Tranche B Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date
Amount of
Loan
Type of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT A-3
TRANCHE C NOTE
New York, New
York
[Dated on or
before
the Effective
Date]
For value received, Fleming Companies, Inc., an
Oklahoma corporation (the "Borrower"), promises to pay to
the order of _______________________ (the "Bank"), for the
account of its Applicable Lending Office, the unpaid
principal amount of each Tranche C Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to
below on the maturity date provided for in the Credit
Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Tranche C Loan on the
dates and at the rate or rates provided for in the Credit
Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in
Federal or other immediately available funds at the office
of Morgan Guaranty Trust Company of New York, 60 Wall
Street, New York, New York.
All Tranche C Loans made by the Bank, the
respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each Tranche C Loan
then outstanding shall be endorsed by the Bank on the
schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of July 19, 1994 among the
Borrower, the banks and the agents listed on the signature
pages thereof and Morgan Guaranty Trust Company of New York,
as Managing Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the
mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
FLEMING COMPANIES, INC.
By ______________________
Name: John M. Thompson
Title: Vice President &
Treasurer
Tranche C Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date
Amount of
Loan
Type of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT A-4
SWINGLINE NOTE
New York, New
York
[Dated on or
before
the Effective
Date]
For value received, Fleming Companies, Inc., an
Oklahoma corporation (the "Borrower"), promises to pay to
the order of Morgan Guaranty Trust Company of New York (the
"Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Swingline Loan made by
the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on
the unpaid principal amount of each such Swingline Loan on
the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States
in Federal or other immediately available funds at the
office of the Bank, 60 Wall Street, New York, New York.
All Swingline Loans made by the Bank, the
respective types and maturities thereof and all repayments
of the principal thereof shall be recorded by the Bank and,
if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the
foregoing information with respect to each Swingline Loan
then outstanding shall be endorsed by the Bank on the
schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the
Credit Agreement dated as of July 19, 1994 among the
Borrower, the banks and the agents listed on the signature
pages thereof and Morgan Guaranty Trust Company of New York,
as Managing Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference
is made to the Credit Agreement for provisions for the
mandatory and optional prepayment hereof and the
acceleration of the maturity hereof.
FLEMING COMPANIES, INC.
By ______________________
Name: John M. Thompson
Title: Vice President &
Treasurer
Swingline Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date
Amount of
Loan
Type of
Loan
Amount of
Principal
Repaid
Maturity
Date
Notation
Made By
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT C
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE MANAGING AGENT
[Dated as required by
Section 3.02 of the
Credit Agreement]
To the Banks, the Agents
and the Managing Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Managing Agent
60 Wall Street
New York, New York 10260
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of July
19, 1994 among Fleming Companies, Inc., an Oklahoma
corporation (the "Borrower"), the banks and agents listed on
the signature pages thereof and Morgan Guaranty Trust
Company of New York, as Managing Agent (the "Managing
Agent"), and have acted as special counsel for the Managing
Agent for the purpose of rendering this opinion pursuant to
Section 3.02(d) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by
the Borrower of the Credit Agreement, the Borrower Pledge
Agreement, the Borrower Security Agreement and the Notes are
within the Borrower's corporate powers and have been duly
authorized by all necessary corporate action.
2. The Credit Agreement, the Borrower Security
Agreement and the Borrower Pledge Agreement constitute valid
and binding agreements of the Borrower and the Notes
constitute valid and binding obligations of the Borrower.
In giving the foregoing opinion, we express no
opinion as to (1) the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect; (2) any of the other Operative
Agreements; (3) the right, title or interest of any Person
in or to any property in which any security interests are or
are purported to be granted by any of the Operative
Documents or the creation, perfection or priority of any of
such security interests; and (4) whether provisions of the
Operative Documents which permit the Managing Agent, the
Collateral Agent, the Required Banks or any Bank to take
action or make determinations or to require payments under
indemnity and similar provisions may be subject to a
requirement that such action be taken or such determination
be made on a reasonable basis and in good faith and that any
action or omission to act in respect of which any such
payment is so required be reasonable and in good faith.
In giving the foregoing opinion, we also note the
possible unenforceability in whole or in part of certain
remedial provisions contained in the Borrower Security
Agreement and the Borrower Pledge Agreement; the inclusion
of any such provisions does not render any security interest
granted or created thereby invalid and each such Agreement
contains, in our judgment, adequate remedial provisions for
the practical realization of the rights and remedies
afforded thereby.
We are members of the Bar of the State of New York
and we do not herein express any opinion as to any matters
governed by any laws other than the laws of the State of New
York and the Federal laws of the United States of America.
To the extent the laws of the State of Oklahoma are relevant
to the foregoing opinions, we have relied, without
independent investigation, on the opinion of McAfee & Taft,
A Professional Corporation, dated July 19, 1994, a copy of
which has been delivered to you.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person (other than any Bank that becomes a party
to the Agreement during the General Syndication) without our
prior written consent.
Very truly yours,
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
FLEMING COMPANIES, INC. (the "Borrower") and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Managing Agent (the "Managing
Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the Credit Agreement dated as
of July 19, 1994 among the Borrower, the Assignor and the
other Banks party thereto, as Banks, the Agents party
thereto, and the Managing Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Tranche ____ Commitment to make Tranche
___ Loans to the Borrower in an aggregate principal amount
at any time outstanding not to exceed $__________;
WHEREAS, Tranche _____ Loans made to the Borrower
by the Assignor under the Credit Agreement in the aggregate
principal amount of $___________ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Tranche _____
Commitment thereunder in an amount equal to $_____________
(the "Assigned Amount"), together with a corresponding
portion of its outstanding Tranche ____ Loans, and the
Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on
such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms
not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement with respect to Tranche
___ to the extent of the Assigned Amount, and the Assignee
hereby accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit
Agreement with respect to Tranche ___ to the extent of the
Assigned Amount, including the purchase from the Assignor of
the corresponding portion of the principal amount of the
Tranche ___ Loans made by the Assignor outstanding at the
date hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, the Borrower and the Managing Agent
and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee
shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the
Credit Agreement with a Tranche ___ Commitment in an amount
equal to the Assigned Amount, and (ii) the Tranche ___
Commitment of the Assignor shall, as of the date hereof, be
reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to
the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds the amount heretofore agreed between them.
It is understood that commitment and/or facility fees
accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives
any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the
same to such other party.
SECTION 4. Consent of the Borrower and the Agent.
This Agreement is conditioned upon the consent of the
Borrower and the Managing Agent pursuant to Section 9.05(c)
of the Credit Agreement. The execution of this Agreement by
the Borrower and the Managing Agent is evidence of this
consent. Pursuant to Section 9.05(c) the Borrower agrees to
execute and deliver a Tranche ___ Note payable to the order
of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By_______________________
Title:
[ASSIGNEE]
By________________________
Title:
FLEMING COMPANIES, INC.
By________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Managing
Agent
By_________________________
Title
EXHIBIT E
NOTICE OF BORROWING
____________________, 19__
Morgan Guaranty Trust Company
of New York, as Managing Agent
under the Credit Agreement
referred to below
60 Wall Street
New York, NY 10260
Dear Sirs:
The undersigned, Fleming Companies, Inc. (the
"Borrower"), hreby gives a Notice of Committed Borrowing
pursuant to the Credit Agreement dated as of July __, 1994
among the Borrower, the Banks listed therein, the Agents
listed therein and Morgan Guaranty Trust Company of New
York, as Managing Agent (as amended from time to time, the
"Credit Agreement"; capitalized terms used herein shall have
the meanings assigned to such terms therein), and specifies
as follows:
(i) The date of the Borrowing shall be
________________, 19__.
(ii) The aggregate amount of the Borrowing shall
be $ __________________.
(iii) The Loans comprising the Borrowing are to
be _______________ Loans.
EXHIBIT F
SUBSIDIARY GUARANTEE AGREEMENT
AGREEMENT dated as of July 19, 1994 between the
corporation identified as the Guarantor on the signature
page hereof, a corporation organized under the laws of the
state indicated on the signature page hereof (with its
successors, the "Guarantor"), and Morgan Guaranty Trust
Company of New York, as Collateral Agent.
WHEREAS, Fleming Companies, Inc., an Oklahoma
corporation (the "Borrower"), of which the Guarantor is a
Subsidiary, has entered into a Credit Agreement (as the same
may be amended from time to time, the "Credit Agreement")
dated as of July 19, 1994 with the banks (the "Banks") and
agents listed on the signature pages thereof and Morgan
Guaranty Trust Company of New York, as Managing Agent,
pursuant to which the Borrower is entitled, subject to
certain conditions, to borrow up to $2,200,000,000 and to
obtain certain letters of credit;
WHEREAS, it is contemplated that the Borrower may
enter into one or more agreements ("Interest Rate Protection
Agreements") with one or more of the Banks regarding the
interest rates with respect to loans under the Credit
Agreement (all obligations of the Borrower to a Bank now
existing or hereafter arising under such Interest Rate
Protection Agreements, collectively, the "Interest Rate
Obligations");
WHEREAS, it is contemplated that the Borrower may
have or enter into one or more agreements ("Further Letter
of Credit Agreements") with one or more of the Banks to
issue certain letters of credit (in addition to those
issuable pursuant to the Credit Agreement) for the account
of the Borrower in an aggregate face amount of up to
$160,000,000;
WHEREAS, it is a condition precedent to the
obligations of the Banks to make the loans under the Credit
Agreement and a condition precedent to any letters of credit
being issued under the Credit Agreement and may be a
condition precedent to any Bank entering into Interest Rate
Protection Agreements or entering into or maintaining
Further Letter of Credit Agreements that the Guarantor
execute and deliver this Agreement; and
WHEREAS, in conjunction with the transactions
contemplated by the Credit Agreement and in consideration of
the financial and other support that the Borrower has
provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantor, and in
order to induce the Banks, the Agents and the Managing Agent
to enter into the Credit Agreement and to make Loans
thereunder and to induce Banks to enter into Interest Rate
Protection Agreements and Further Letter of Credit
Agreements, the Guarantor is willing to guarantee the
obligations of the Borrower under the Credit Agreement and
the Notes and under any Interest Rate Protection Agreements
and any Further Letter of Credit Agreements;
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Terms defined in the
Credit Agreement and not otherwise defined herein are used
herein as therein defined. In addition the following terms,
as used herein, have the following meaning:
"Guaranteed Obligations" means (i) all obligations
of the Borrower in respect of the principal of and interest
on the Loans and the Notes, (ii) all obligations of the
Borrower with respect to any Interest Rate Protection
Agreement, (iii) all obligations of the Borrower with
respect to any Further Letter of Credit Agreements, (iv) all
other amounts payable by the Borrower under the Credit
Agreement, the Notes, or its Security Agreement or Pledge
Agreement or payable by the Guarantor under any Security
Agreement or Pledge Agreement to which it is a party and (v)
all renewals or extensions of the foregoing, in each case
whether now outstanding or hereafter arising, provided that
an Interest Rate Protection Agreement or a Further Letter of
Credit Agreement, or any amount payable in connection
therewith, shall not constitute a Guaranteed Obligation
unless the Borrower has designated it as such (and any
reference herein or in a Security Document to which the
Guarantor is a party to an Interest Rate Protection
Agreement or Further Letter of Credit Agreement shall
include only those so designated) by delivering to the
Collateral Agent a certificate signed by a Responsible
Officer which shall identify the obligation so designated
and specify the name and address of the counterparty thereto
and, in the case of any Further Letter of Credit Agreement,
certify that, after giving effect to such designation, the
aggregate undrawn face amount of all letters of credit that
are outstanding on such date (or that a Bank is obligated to
issue after such date) under all Further Letter of Credit
Agreements plus the aggregate amount of all reimbursement
obligations (but not any interest thereon) for amounts
previously drawn and remaining unpaid under letters of
credit issued pursuant to all Further Letter of Credit
Agreements does not exceed $160,000,000. The Guaranteed
Obligations shall include, without limitation, any interest,
costs, fees and expenses which accrue on or with respect to
any of the foregoing, whether before or after the
commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization by
the Borrower, and whether or not allowed or allowable as a
claim in any such proceeding, any such interest, costs, fees
and expenses that would have accrued thereon or with respect
thereto but for the commencement of such case, proceeding or
other action.
"Obligor" means any Subsidiary of the Borrower
that is a party to an Operative Agreement.
"Related Agreements" means the Operative
Agreements, any Interest Rate Protection Agreements and any
Further Letter of Credit Agreements.
"Responsible Officer" means the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the Chief Operating
Officer, the President or the Treasurer of the Borrower.
ARTICLE II
The Guarantee
SECTION 2.01. The Guarantee. Subject to Section
2.03, the Guarantor hereby unconditionally and irrevocably
guarantees to the Banks, the Agents and the Managing Agent
and to each of them, the due and punctual payment of all
Guaranteed Obligations as and when the same shall become due
and payable, whether at maturity, by declaration or
otherwise, according to the terms thereof. In case of
failure by the Borrower punctually to pay any Guaranteed
Obligation, the Guarantor, subject to Section 2.03, hereby
unconditionally agrees to cause such payment to be made
punctually as and when the same shall become due and
payable, whether at maturity or by declaration or otherwise,
and as if such payment were made by the Borrower.
SECTION 2.02. Guarantees Unconditional. The
obligations of the Guarantor under this Article II shall be
unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement,
compromise, waiver or release in respect of any
obligation of the Borrower or any other Obligor under
any of the Related Agreements by operation of law or
otherwise;
(b) any modification or amendment of or
supplement to any of the Related Agreements;
(c) any modification, amendment, waiver, release,
non-perfection or invalidity of any direct or indirect
security, or of any guarantee or other liability of any
third party, for any obligation of the Borrower or any
other Obligor under any of the Related Agreements;
(d) any change in the corporate existence,
structure or ownership of the Borrower or any other
Obligor, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Borrower or
any other Obligor or its assets or any resulting
release or discharge of any obligation of the Borrower
or any other Obligor contained in any of the Related
Agreements;
(e) the existence of any claim, set-off or other
rights which the Guarantor may have at any time against
the Borrower or any other Obligor, the Managing Agent,
any Agent, any Bank or any other Person, whether or not
arising in connection with any of the Related
Agreements; provided that nothing herein shall prevent
the assertion of any such claim by separate suit or
compulsory counterclaim;
(f) any invalidity or unenforceability relating
to or against the Borrower or any other Obligor for any
reason of any of the Related Agreements, or any
provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any other
Obligor of the principal of or interest on any Note or
any other amount payable by the Borrower or any other
Obligor under any of the Related Agreements; or
(g) any other act or omission to act or delay of
any kind by the Borrower or any other Obligor, the
Managing Agent, any Agent, any Bank or any other Person
or any other circumstance whatsoever that might, but
for the provisions of this paragraph, constitute a
legal or equitable discharge of the obligations of the
Guarantor under this Article II.
SECTION 2.03. Limit of Liability. The Guarantor
shall be liable under this Agreement only for amounts
aggregating up to the largest amount that would not render
its obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable
provisions of any applicable state law.
SECTION 2.04. Discharge; Reinstatement in Certain
Circumstances. The Guarantor's obligations under this
Article II shall remain in full force and effect until the
Commitments are terminated, no Letters of Credit remain
outstanding and the principal of and interest on the Notes,
all Letter of Credit Liabilities and all other amounts
payable by the Borrower under any of the Operative
Agreements shall have been paid in full. If at any time any
payment of the principal of or interest on any Note, any
Letter of Credit Liability, any Interest Rate Obligation,
any obligation under any Further Letter of Credit Agreement
or any other amount payable by the Borrower under any of the
Related Agreements is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or any other Obligor or
otherwise, the Guarantor's obligations under this Article II
with respect to such payment shall be reinstated at such
time as though such payment had become due but had not been
made at such time.
SECTION 2.05. Waiver. The Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and
any notice not provided for herein, as well as any
requirement that at any time any action be taken by any
Person against the Borrower or any other Obligor or any
other Person.
SECTION 2.06. Subrogation and Contribution. The
Guarantor irrevocably waives any and all rights to which it
may be entitled, by operation of law or otherwise, upon
making any payment hereunder (i) to be subrogated to the
rights of the payee against the Borrower with respect to
such payment or otherwise to be reimbursed, indemnified or
exonerated by the Borrower or any other Obligor in respect
thereof or (ii) to receive any payment, in the nature of
contribution or for any other reason, from any other Obligor
with respect to such payment.
SECTION 2.07. Stay of Acceleration. If
acceleration of the time for payment of any amount payable
by the Borrower under any of the Related Agreements is
stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, all such amounts otherwise subject to
acceleration under the terms of any of the Related
Agreements shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by the Managing Agent made at
the request of the Required Banks.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants that:
(a) The Guarantor is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
(b) The execution, delivery and performance by
the Guarantor of this Agreement are within the Guarantor's
corporate powers, 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 and
do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Guarantor or
of any judgment, injunction, orders or decree or any
material agreement or other material instrument binding upon
the Guarantor or result in the creation or imposition of any
Lien (other than Liens created by the Operative Agreements)
on any asset of the Guarantor or any of its Subsidiaries.
(c) This Agreement constitutes a valid and
binding agreement of the Guarantor.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Notices. Unless otherwise speci-
fied herein, all notices, requests and other communications
to any party hereunder shall be in writing (including bank
wire, telex, facsimile transmission or similar writing) and
shall be given to such party at its address or telex or
facsimile number set forth on the signature page hereof or
such other address or telex or facsimile number as such
party may hereafter specify for the purpose by notice to the
to the other party hereto. Each such notice, request or
other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified in or pursuant to this Section 4.01 and the
appropriate answerback is received, (ii) if given by
facsimile transmission, when such facsimile is transmitted
to the facsimile transmission number specified in or
pursuant to this Section 4.01 and telephonic confirmation of
receipt thereof is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid or
(iv) if given by any other means, when delivered at the
address specified in this Section 4.01.
SECTION 4.02. No Waiver. No failure or delay by
the Managing Agent, any Agent or any Bank in exercising any
right, power or privilege under this Agreement or any of the
Related Agreements shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies
herein and therein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 4.03. Amendments and Waivers. Any provi-
sion of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and is signed by
the Guarantor and the Collateral Agent with the prior
written consent of the Required Banks, provided that except
as set forth in the two immediately following sentences,
this Agreement may not be terminated (other than pursuant to
Section 2.04) without the prior written consent of the
Releasing Banks. The Guarantor may at any time request the
Collateral Agent to agree to the termination of this
Agreement if such request is accompanied by a certificate of
a Responsible Officer stating that such termination is
requested in connection with an Asset Sale in which all of
the shares of capital stock of the Guarantor owned directly
or indirectly by the Borrower will be sold. Upon receipt of
such a request and certificate, the Collateral Agent shall,
at the expense of the Guarantor and against delivery of a
further certificate of a Responsible Officer stating that
such Asset Sale has taken place (or is taking place
concurrently), execute and deliver such documents as the
Guarantor shall reasonably request to evidence the
termination of this Agreement.
SECTION 4.04. Governing Law; Submission to
Jurisdiction; Waiver of a Jury Trial. THIS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY. THE GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF
THE GUARANTOR, THE COLLATERAL AGENT, THE AGENTS AND THE
BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 4.05. Successors and Assigns; Collateral
Agent. (a) This Agreement is for the benefit of the Banks,
the Agents and the Managing Agent and their respective
successors and assigns and in the event of an assignment of
the Loans, the Notes or other amounts payable under the
Related Agreements, the rights hereunder, to the extent
applicable to the indebtedness so assigned, shall be
transferred with such indebtedness; provided that no
counterparty to an Interest Rate Protection Agreement or a
Further Letter of Credit Agreement shall be entitled to the
benefits hereof unless it is also a Bank. All the
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns.
(b) The Collateral Agent has become a party hereto
pursuant to the Credit Agreement. The actions of the
Collateral Agent hereunder are subject to the provisions of
the Credit Agreement (including in particular Article VII
thereof), and the Collateral Agent has no obligations other
than those expressly set forth herein.
SECTION 4.06. Counterparts. This Agreement may
be signed in any number of counterparts, each of which shall
be an original, and all of which taken together shall
constitute a single instrument, with the same effect as if
the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the date first above written.
[NAME OF SUBSIDIARY], as Guarantor
(a _____________ corporation)
By_____________________________
Name: John M. Thompson
Title: Vice President
c/o Fleming Companies, Inc.
P. O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
Attn: Treasurer
Telecopier: (405) 840-7202
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Collateral Agent
By______________________________
Name: Michael C. Mauer
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615
Telecopier: (212) 648-5016
EXHIBIT G-1
FORM OF
BORROWER PLEDGE AGREEMENT
[Intentionally omitted.]
EXHIBIT G-2
SUBSIDIARY PLEDGE AGREEMENT
dated as of
July 19, 1994
among
The Corporation Listed on the Signature Page Hereof
and
Morgan Guaranty Trust Company of New York,
as Collateral Agent
TABLE OF CONTENTS
Page
SECTION 1. Definitions. . . . . . . . . . . . . . . . . . . .
. . 2
SECTION 2. Representations and Warranties . . . . . . . . . .
. . 6
SECTION 3. The Security Interests . . . . . . . . . . . . . .
. . 7
SECTION 4. Delivery of Pledged Stock. . . . . . . . . . . . .
. . 8
SECTION 5. Further Assurances . . . . . . . . . . . . . . . .
. . 8
SECTION 6. Record Ownership of Pledged Stock. . . . . . . . .
. . 9
SECTION 7. Right to Receive Distributions on
Collateral . . . . . . . . . . . . . . . . . . . .
. . 9
SECTION 8. Right to Vote Pledged Stock. . . . . . . . . . . .
. . 9
SECTION 9. General Authority. . . . . . . . . . . . . . . . .
. . 10
SECTION 10. Remedies upon Event of Default. . . . . . . . . .
. . 11
SECTION 11. Expenses. . . . . . . . . . . . . . . . . . . . .
. . 12
SECTION 12. Limitation on Duty of Collateral
Agent in Respect of Collateral. . . . . . . . . .
. . 13
SECTION 13. Application of Proceeds . . . . . . . . . . . . .
. . 13
SECTION 14. Concerning the Collateral Agent . . . . . . . . .
. . 15
SECTION 15. Appointment of Co-Agents. . . . . . . . . . . . .
. . 16
SECTION 16. Termination of Security Interests;
Release of Collateral . . . . . . . . . . . . . .
. . 17
SECTION 17. Collateral Account. . . . . . . . . . . . . . . .
. . 19
SECTION 18. Notices . . . . . . . . . . . . . . . . . . . . .
. . 20
SECTION 19. Waivers, Non-Exclusive Remedies . . . . . . . . .
. . 21
SECTION 20. Successors and Assigns. . . . . . . . . . . . . .
. . 21
SECTION 21. Changes in Writing. . . . . . . . . . . . . . . .
. . 21
SECTION 22. New York Law. . . . . . . . . . . . . . . . . . .
. . 22
SECTION 23. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial. . . . . . . .
. . 22
SECTION 24. Severability. . . . . . . . . . . . . . . . . . .
. . 22
SECTION 25. Counterparts. . . . . . . . . . . . . . . . . . .
. . 23
SECTION 26. Obligations Absolute. . . . . . . . . . . . . . .
. . 23
Schedule 1 - Issuers and Original Pledge Stock
SUBSIDIARY PLEDGE AGREEMENT
AGREEMENT dated as of July 19, 1994 made by the
corporation identified as the Pledgor on the signature page
hereof, a corporation organized under the jurisdiction
listed on the signature page hereof (with its successors,
the "Pledgor"), in favor of MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent.
R E C I T A L S
A. Pursuant to the credit agreement, dated as of
July 19, 1994 (as amended, amended and restated, supplemen-
ted or otherwise modified from time to time, the "Credit
Agreement"), by and among Fleming Companies, Inc. (the
"Borrower"), the Banks listed therein, the Agents listed
therein and Morgan Guaranty Trust Company of New York, as
Managing Agent for the Banks, the Banks have agreed (i) to
make loans to the Borrower up to an aggregate principal
amount of $2,200,000,000 and (ii) to issue letters of credit
for the account of the Borrower.
B. It is contemplated that the Borrower may
enter into one or more agreements ("Interest Rate Protection
Agreements") with one or more of the Banks (as hereinafter
defined) regarding the interest rates with respect to loans
under the Credit Agreement (all obligations of the Borrower
now existing or hereafter arising under such Interest Rate
Protection Agreements, collectively, the "Interest Rate
Obligations").
C. It is contemplated that the Borrower may have
or enter into one or more agreements ("Further Letter of
Credit Agreements") with one or more of the Banks to issue
certain letters of credit (in addition to those issuable
pursuant to the Credit Agreement) for the account of the
Borrower in an aggregate face amount of up to $160,000,000.
D. The Credit Agreement provides, among other
things, that one condition of its effectiveness is the
execution and delivery by the Pledgor of a Subsidiary
Guarantee Agreement (the "Guarantee Agreement") dated as of
July 19, 1994, pursuant to which the Pledgor guarantees
certain obligations of the Borrower more specifically set
forth therein (the "Guaranteed Obligations");
E. It is a further condition precedent to the
obligations of the Banks to make the loans under the Credit
Agreement and a further condition precedent to any letters
of credit being issued under the Credit Agreement and may be
a condition precedent to any Bank entering into Interest
Rate Protection Agreements or entering into or maintaining
Further Letter of Credit Agreements that the Pledgor execute
and deliver this Agreement.
F. As a consequence of certain negative pledge
clauses in other instruments and agreements by which the
Borrower is bound, the Pledgor must secure certain other
obligations of the Borrower existing on the date hereof
equally and ratably with its obligations under the Guarantee
Agreement.
G. This Agreement is given by the Pledgor in
favor of the Collateral Agent for its benefit and the
benefit of the other Secured Parties (as hereinafter
defined) to secure the payment and performance of all of the
Secured Obligations (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions
Capitalized terms used and not defined herein shall
have the meanings assigned to them in the Credit Agreement.
The following terms, as used herein, have the following
meanings:
"Bank Secured Obligations" means the Secured
Obligations other than the Non-Bank Secured Obligations,
provided that at any time of determination no amount of the
Borrower's obligations under any Interest Rate Protection
Agreement shall be included in Bank Secured Obligations that
are Non-Contingent Secured Obligations unless such
obligations are then due and payable.
"Cash Distributions" means dividends and other
payments and distributions made upon or with respect to the
Pledged Stock or any other Collateral in cash.
"Collateral" has the meaning set forth in Section
3(a).
"Collateral Agent" means Morgan Guaranty Trust
Company of New York in its capacity as agent for the Secured
Parties hereunder, and its successors in such capacity.
"Contingent Secured Obligation" means at any time
any Guaranteed Obligation (or portion thereof) that is at
such time:
(i) an obligation to reimburse a Bank for
drawings not yet made under a letter of credit issued
or to be issued by such Bank, or
(ii) an obligation to provide collateral to or
for the benefit of a Bank to secure reimbursement
obligations arising from drawings not yet made under a
letter of credit issued or to be issued by such Bank or
to make any other payment to the Issuing Bank that the
Issuing Bank would not be entitled to retain if no
drawings were made under the relevant letter of credit
after the time of determination.
"Credit Agreement Secured Obligations" means the
Secured Obligations arising under the Credit Agreement.
"Existing Debt Indentures" means (i) the Indenture
dated as of December 1, 1989, as supplemented to the date
hereof, from the Borrower to Morgan Guaranty Trust Company
of New York, as Trustee, and (ii) the Indenture dated as of
March 15, 1986, as supplemented to the date hereof, from the
Borrower to Morgan Guaranty Trust Company of New York, as
Trustee.
"Existing Indenture Obligations" means the notes
and debentures of the Borrower outstanding from time to time
under the Existing Debt Indentures, provided that the term
Existing Indenture Obligations shall not include any such
securities that are not issued and outstanding on July 19,
1994 unless such securities have been issued in exchange or
substitution (which do not include any refinancing or refun-
ding) for any securities constituting Existing Indenture
Obligations that were outstanding on July 19, 1994.
"Issuer" means each Subsidiary of the Pledgor
listed on Schedule 1 hereto.
"Lien" means, with respect to any asset, any mort-
gage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset.
"Liquid Investment" means (i) direct obligations
of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii)
commercial paper rated in the highest grade by a nationally
recognized credit rating agency or (iii) time deposits with,
including certificates of deposit issued by, any office
located in the United States of any bank or trust company
(including a bank or trust company acting as the Collateral
Agent or a co-agent hereunder) which is organized under the
laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at least
$1,000,000,000; provided in each case that (x) such Liquid
Investment matures within 90 days from the date of acquisi-
tion thereof and (y) in order to provide the Collateral
Agent, for the benefit of the Secured Parties, with a
perfected security interest therein, such Liquid Investment
is:
(1) evidenced by a certificate or instrument
which is negotiable, or if non-negotiable is issued in
the name of the Collateral Agent or its nominee, and
which (together with any appropriate instruments of
transfer) is delivered to, and held by, the Collateral
Agent or an agent thereof (which shall not be the
Pledgor or any of its Affiliates) in the State of New
York;
(2) issued by the U.S. Treasury in book-entry
form and subject to pledge under then-applicable state
law and Treasury regulations and held by the Collateral
Agent at a Federal Reserve Bank; provided that the
books of the Collateral Agent reflect that such Trea-
sury securities are held as Collateral under this
Agreement in compliance with then applicable Treasury
regulations regarding the perfection of security
interests in Treasury securities; or
(3) otherwise issued, evidenced, registered or
recorded in such manner as will provide the Collateral
Agent, for the benefit of the Secured Parties, with a
perfected security interest therein.
"Non-Bank Percentage" means, as of any time of
determination, the percentage obtained by dividing the then-
outstanding principal amount of the Non-Bank Secured
Obligations by the sum of the then-outstanding principal
amount of (1) the Non-Bank Secured Obligations and (b) any
Bank Secured Obligations that are Non-Contingent Secured
Obligations.
"Non-Bank Secured Obligations" means the Secured
Obligations held by the Non-Bank Secured Parties.
"Non-Bank Secured Parties" means the holders from
time to time of the Secured Obligations consisting of the
Existing Indenture Obligations.
"Non-Contingent Secured Obligation" means at any
time any Secured Obligation (or portion thereof) that is not
a Contingent Secured Obligation at such time.
"Original Pledged Stock" means the shares of stock
of each Issuer listed on Schedule 1 hereto.
"Pledged Stock" means (i) the Original Pledged
Stock and (ii) any other capital stock required to be
pledged to the Collateral Agent pursuant to Section 3(b).
"Responsible Officer" means the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the Chief Operating
Officer, the President or the Treasurer of the Borrower.
"Secured Obligations" means:
(i) the Guaranteed Obligations;
(ii) all sums payable by the Pledgor under
this Agreement; and
(iii) all principal of and premium, if any,
and interest on the Existing Indenture Obligations.
"Secured Parties" means (i) the holders from time
to time of the Secured Obligations and (ii) the Collateral
Agent, provided that for purposes of any notice to or con-
sent required from the Non-Bank Secured Parties, the Trustee
under each Existing Debt Indenture at the time in question
shall be treated as the Non-Bank Secured Party with respect
to the Existing Indenture Obligations thereunder and all
payments to be made to or for the benefit of any holder of
an Existing Indenture Obligation shall be made to the Trus-
tee in question and the Collateral Agent shall have no
further responsibilities or liability with respect thereto.
"Security Interests" means the security interests
in the Collateral granted hereunder securing the Secured
Obligations.
Unless otherwise defined herein, or unless the
context otherwise requires, all terms used herein which are
defined in the New York Uniform Commercial Code as in effect
on the date hereof shall have the meanings therein stated.
SECTION 2. Representations and Warranties
The Pledgor represents and warrants as follows:
(a) The Pledgor is a corporation duly incor-
porated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
(b) The execution, delivery and performance by
the Pledgor of this Agreement are within the Pledgor's
corporate powers, 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 and
do not contravene, or constitute a default under any
provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Pledgor or of
any judgment, injunction, orders or decree or any material
agreement or other material instrument binding upon the
Pledgor or result in the creation or imposition of any Lien
(other than Liens created by the Operative Agreements) on
any asset of the Pledgor or any Subsidiary.
(c) This Agreement constitutes a valid and
binding agreement of the Pledgor.
(d) The Pledgor owns all of the Original Pledged
Stock, free and clear of any Liens other than the Security
Interests. Except as set forth on Schedule l hereto, the
Original Pledged Stock includes all of the issued and
outstanding capital stock of each Issuer, and no Issuer has
outstanding any security convertible into or exchangeable
for any shares of its capital stock or any warrant, option
or other instrument entitling the holder thereof to acquire
any such shares. All of the Original Pledged Stock has been
duly authorized and validly issued and is fully paid and
non-assessable, and is subject to no options to purchase or
similar rights of any Person. Other than this Agreement,
the Pledgor is not and will not become a party to or other-
wise bound by any agreement which restricts in any manner
the rights of the Secured Parties with respect to any of the
Pledged Stock.
(e) Upon the delivery of the certificates repre-
senting the Pledged Stock to the Collateral Agent in accor-
dance with Section 4 hereof, the Collateral Agent will have
valid and perfected security interests in the Collateral to
the extent a security interest in such Collateral can be
perfected under the Uniform Commercial Code (and subject to
the requirements of Section 9-306 of the Uniform Commercial
Code with respect to any proceeds of Collateral and to the
further requirement that additional steps may be necessary
to perfect a security interest in dividends or other distri-
butions in kind), subject to no prior Lien. No registra-
tion, recordation or filing with any governmental body,
agency or official is required in connection with the execu-
tion or delivery of this Agreement or necessary for the
validity or enforceability hereof or for the perfection or
enforcement of the Security Interests. Neither the Pledgor
nor any Subsidiary has performed or will perform any acts
which might prevent the Collateral Agent from enforcing any
of the terms and conditions of this Agreement or which would
limit the Collateral Agent in any such enforcement.
(f) The chief executive office of the Pledgor is
located within one of the jurisdictions set forth on the
signature page hereof. Except as noted on Schedule 1, under
the Uniform Commercial Code as in effect in each State in
which any such office is located, no local filing is
required to perfect a security interest in collateral
consisting of general intangibles.
SECTION 3. The Security Interests
In order to secure the full and punctual payment
of the Secured Obligations in accordance with the terms
thereof, and to secure the performance of all the
obligations of the Pledgor hereunder:
(a) The Pledgor hereby assigns and pledges to and
with the Collateral Agent for the equal and ratable benefit
of the Secured Parties and grants to the Collateral Agent
for the equal and ratable benefit of the Secured Parties
security interests in the Pledged Stock, and all of its
rights and privileges with respect to the Pledged Stock, and
all income and profits thereon, and all interest, dividends
and other payments and distributions with respect thereto,
and the Collateral Account (as hereinafter defined) and all
cash deposited therein or other property held therein from
time to time, and all proceeds of the foregoing (the "Colla-
teral"). Contemporaneously with the execution and delivery
hereof, the Pledgor is delivering the certificates represen-
ting the Original Pledged Stock in pledge hereunder.
(b) In the event that any Issuer at any time
issues any additional or substitute shares of capital stock
of any class to the Pledgor, the Pledgor will immediately
pledge and deposit with the Collateral Agent certificates
representing all such shares. All such shares constitute
Pledged Stock and are subject to all provisions of this
Agreement.
(c) The Security Interests are granted as securi-
ty only and shall not subject the Collateral Agent or any
Secured Party to, or transfer or in any way affect or
modify, any obligation or liability of the Pledgor with
respect to any of the Collateral or any transaction in
connection therewith.
SECTION 4. Delivery of Pledged Stock
All Pledged Stock shall be delivered to the Colla-
teral Agent by the Pledgor pursuant hereto indorsed to the
order of the Collateral Agent, and accompanied by any re-
quired transfer tax stamps, all in form and substance satis-
factory to the Collateral Agent. All certificates represen-
ting Pledged Stock delivered to the Collateral Agent by the
Pledgor pursuant hereto shall be in suitable form for trans-
fer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, and accompa-
nied by any required transfer tax stamps, all in form and
substance satisfactory to the Collateral Agent.
SECTION 5. Further Assurances
(a) The Pledgor agrees that it will, at its
expense and in such manner and form as the Collateral Agent
may reasonably require, execute, deliver, file and record
any financing statement, specific assignment or other paper
and take any other action that may be necessary or desira-
ble, or that the Collateral Agent may request, in order to
create, preserve, perfect or validate any Security Interest
or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to any of the Collateral.
To the extent permitted by applicable law, the Pledgor
hereby authorizes the Collateral Agent to execute and file,
in the name of the Pledgor or otherwise, Uniform Commercial
Code financing statements (which may be carbon, photogra-
phic, photostatic or other reproductions of this Agreement
or of a financing statement relating to this Agreement)
which the Collateral Agent in its sole discretion may deem
necessary or appropriate to further perfect the Security
Interests.
(b) The Pledgor agrees that it will not change
(i) its name, identity or corporate structure in any manner
or (ii) the location of its chief executive office unless it
shall have given the Collateral Agent not less than 20 days'
prior notice thereof.
SECTION 6. Record Ownership of Pledged Stock
Upon the occurrence and during the continuance of
an Event of Default, at the request of the Required Banks,
the Collateral Agent may cause any or all of the Pledged
Stock to be transferred of record into the name of the Col-
lateral Agent or its nominee. The Pledgor will promptly
give to the Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Stock
registered in the name of the Pledgor and the Collateral
Agent will promptly give to the Pledgor copies of any
notices and communications received by the Collateral Agent
with respect to Pledged Stock registered in the name of the
Collateral Agent or its nominee.
SECTION 7. Right to Receive Distributions on Collateral
The Collateral Agent shall have the right to
receive and to retain as Collateral hereunder all dividends,
interest and other payments and distributions made upon or
with respect to the Collateral and the Pledgor shall take
all such action as the Collateral Agent may deem necessary
or appropriate to give effect to such right, provided that
unless an Event of Default has occurred and is continuing
and upon the request of the Required Banks, the foregoing
sentence shall not apply to Cash Distributions. All such
dividends, interest and other payments and distributions
which are received by the Pledgor (except Cash Distributions
received when no Event of Default has occurred and is con-
tinuing) shall be received in trust for the benefit of the
Collateral Agent and the Secured Parties and, if the Colla-
teral Agent so directs during the continuance of an Event of
Default, shall be segregated from other funds of the Pledgor
and shall, forthwith upon demand by the Collateral Agent
during the continuance of an Event of Default, be paid over
to the Collateral Agent as Collateral in the same form as
received (with any necessary endorsement). After all Events
of Defaults have been cured or waived, the Collateral
Agent's right to retain Cash Distributions under this Sec-
tion 7 shall cease and the Collateral Agent shall pay over
to the Pledgor any such Cash Distributions retained by it
during the continuance of an Event of Default.
SECTION 8. Right to Vote Pledged Stock
Unless an Event of Default shall have occurred and
be continuing and the Required Banks shall have so reques-
ted, the Pledgor shall have the right, from time to time, to
vote and to give consents, ratifications and waivers with
respect to the Pledged Stock, and the Collateral Agent
shall, upon receiving a written request from the Pledgor
accompanied by a certificate signed by a Responsible Officer
stating that no Event of Default has occurred and is contin-
uing, deliver to the Pledgor or as specified in such request
such proxies, powers of attorney, consents, ratifications
and waivers in respect of any of the Pledged Stock which is
registered in the name of the Collateral Agent or its
nominee as shall be specified in such request and be in form
and substance satisfactory to the Collateral Agent.
If an Event of Default shall have occurred and be
continuing, the Collateral Agent shall have the right to the
extent permitted by law and the Pledgor shall take all such
action as may be necessary or appropriate to give effect to
such right, to vote and to give consents, ratifications and
waivers, and take any other action with respect to any or
all of the Pledged Stock with the same force and effect as
if the Collateral Agent were the absolute and sole owner
thereof.
SECTION 9. General Authority
The Pledgor hereby irrevocably appoints the Colla-
teral Agent its true and lawful attorney, with full power of
substitution, in the name of the Pledgor, the Collateral
Agent, the Secured Parties or otherwise, for the sole use
and benefit of the Collateral Agent and the Secured Parties,
but at the expense of the Pledgor, to the extent permitted
by law to exercise, at any time and from time to time while
an Event of Default has occurred and is continuing and at
the request of the Required Banks, all or any of the follow-
ing powers with respect to all or any of the Collateral:
(i) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due
upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or
defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal
in or with the same or the proceeds or avails thereof,
as fully and effectually as if the Collateral Agent
were the absolute owner thereof, and
(iv) to extend the time of payment of any or all
thereof and to make any allowance and other adjustments
with reference thereto;
provided that the Collateral Agent shall give the Pledgor
not less than ten days' prior written notice of the time and
place of any sale or other intended disposition of any of
the Collateral except any Collateral which threatens to
decline speedily in value or is of a type customarily sold
on a recognized market. The Collateral Agent and the Pled-
gor agree that such notice constitutes "reasonable notifica-
tion" within the meaning of Section 9-504(3) of the Uniform
Commercial Code.
SECTION 10. Remedies upon Event of Default
If any Event of Default shall have occurred and be
continuing, the Collateral Agent, upon being instructed to
do so by the Required Banks, may exercise on behalf of the
Secured Parties all the rights of a secured party under the
Uniform Commercial Code (whether or not in effect in the
jurisdiction where such rights are exercised) and, in
addition, the Collateral Agent may, without being required
to give any notice, except as herein provided or as may be
required by mandatory provisions of law, (i) apply the cash,
if any, then held by it as Collateral as specified in
Section 13 and (ii) if there shall be no such cash or if
such cash shall be insufficient to pay all the Secured
Obligations in full, sell the Collateral or any part thereof
at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future
delivery, and at such price or prices as the Collateral
Agent may deem satisfactory. Any Secured Party may be the
purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily
sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at
any private sale). The Collateral Agent is authorized, in
connection with any such sale, if it deems it advisable so
to do, (i) to restrict the prospective bidders on or purcha-
sers of any of the Pledged Stock to a limited number of
sophisticated investors who will represent and agree that
they are purchasing for their own account for investment and
not with a view to the distribution or sale of any of such
Pledged Stock, (ii) to cause to be placed on certificates
for any or all of the Pledged Stock or on any other securi-
ties pledged hereunder a legend to the effect that such
security has not been registered under the Securities Act of
1933 and may not be disposed of in violation of the provi-
sion of said Act, and (iii) to impose such other limitations
or conditions in connection with any such sale as the Colla-
teral Agent deems necessary or advisable in order to comply
with said Act or any other law. The Pledgor covenants and
agrees that it will execute and deliver such documents and
take such other action as the Collateral Agent deems neces-
sary or advisable in order that any such sale may be made in
compliance with law. Upon any such sale the Collateral
Agent shall have the right to deliver, assign and transfer
to the purchaser thereof the Collateral so sold. Each pur-
chaser at any such sale shall hold the Collateral so sold
absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of the
Pledgor which may be waived, and the Pledgor, to the extent
permitted by law, hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under
any law now existing or hereafter adopted. The notice (if
any) of such sale required by Section 9 shall (1) in case of
a public sale, state the time and place fixed for such sale,
(2) in case of sale at a broker's board or on a securities
exchange, state the board or exchange at which such sale is
to be made and the day on which the Collateral, or the
portion thereof so being sold, will first be offered for
sale at such board or exchange, and (3) in the case of a
private sale, state the day after which such sale may be
consummated. Any such public sale shall be held at such
time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix in the
notice of such sale. At any such sale the Collateral may be
sold in one lot as an entirety or in separate parcels, as
the Collateral Agent may determine. The Collateral Agent
shall not be obligated to make any such sale pursuant to any
such notice. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at
the time and place fixed for the sale, and such sale may be
made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the
selling price is paid by the purchaser thereof, but the
Collateral Agent shall not incur any liability in case of
the failure of such purchaser to take up and pay for the
Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice. The
Collateral Agent, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits at
law or in equity to foreclose the Security Interests and
sell the Collateral, or any portion thereof, under a
judgment or decree of a court or courts of competent
jurisdiction.
SECTION 11. Expenses
The Pledgor agrees that it will forthwith upon
demand pay to the Collateral Agent:
(i) the amount of any taxes which the Collateral
Agent may have been required to pay by reason of the
Security Interests or to free any of the Collateral
from any Lien thereon, and
(ii) the amount of any and all out-of-pocket
expenses, including the reasonable fees and disburse-
ments of counsel and of any other experts, which the
Collateral Agent may incur in connection with (w) the
administration or enforcement of this Agreement, inclu-
ding such expenses as are incurred to preserve the
value of the Collateral and the validity, perfection,
rank and value of any Security Interest, (x) the col-
lection, sale or other disposition of any of the Colla-
teral, (y) the exercise by the Collateral Agent of any
of the rights conferred upon it hereunder or (z) any
Default or Event of Default.
Any such amount not paid on demand shall bear interest at 1%
plus the rate that would be applicable to Tranche A Base
Rate Loans under the Credit Agreement. The Pledgor's
obligations under this Section shall survive the termination
of this Agreement and the discharge of the Pledgor's
obligations under the Operative Agreements.
SECTION 12. Limitation on Duty of Collateral
Agent in Respect of Collateral
Beyond the exercise of reasonable care in the
custody thereof, the Collateral Agent shall have no duty as
to any Collateral in its possession or control or in the
possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. The Colla-
teral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own proper-
ty, and shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in
the value thereof, by reason of the act or omission of any
agent or bailee selected by the Collateral Agent in good
faith.
SECTION 13. Application of Proceeds
(a) Upon the occurrence and during the continu-
ance of an Event of Default, the proceeds of any sale of, or
other realization upon, all or any part of the Collateral
(including any proceeds received and held pursuant to Sec-
tion 16) and any cash held in the Collateral Account shall
be applied by the Collateral Agent, upon being instructed to
do so by the Required Banks, in the following order of
priorities:
First, to the payment of all costs and expenses,
fees, commissions and taxes of such sale, collection or
other realization, including, without limitation, rea-
sonable compensation to the Collateral Agent and its
agents and counsel, and all expenses, liabilities and
advances made or incurred by the Collateral Agent in
connection therewith, together with interest on each
such amount at 1% plus the rate of interest that would
be applicable to Tranche A Base Rate Loans under the
Credit Agreement from and after the date such amount is
due, owing or unpaid until paid in full;
Second, to pay the Secured Obligations ratably (or
provide for the payment thereof pursuant to subsection
(b) of this Section), until payment in full of all
Secured Obligations shall have been made (or so provi-
ded for), provided that before making any payment pur-
suant to this clause Second ratably to the holders of
the Secured Obligations, the Collateral Agent shall
first apply solely to the Non-Bank Secured Obligations
any amount held by it pursuant to subclause (ii)(A) of
Section 16(b) and provided further that in the case of
a Guaranteed Obligation that is in respect of an
Interest Rate Protection Agreement, the principal
amount outstanding to a Bank under such Interest Rate
Protection Agreement at the time any such payments are
to be distributed in accordance with this clause Second
shall be the amount of the Borrower's obligations then
due and payable (including any early termination
payments then due) to such Bank under such Interest
Rate Protection Agreement; and
Third, to the Pledgor, or its successors or
assigns, or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdic-
tion may direct, of any surplus then remaining from
such proceeds.
(b) If at any time any monies collected or
received by the Collateral Agent would, but for the provi-
sions of this subsection (b), be payable pursuant to subsec-
tion (a) of this Section in respect of any Contingent
Secured Obligation, the Collateral Agent shall not apply
such monies to pay such Contingent Secured Obligation but
instead shall hold such monies in the Collateral Account.
The Collateral Agent shall so hold all such monies until
such time as the holder of such Contingent Secured Obliga-
tion advises the Collateral Agent (with at least three
Business Days' prior notice to the Pledgor) that all or a
specified part of such Contingent Secured Obligation has
become a Non-Contingent Secured Obligation, whereupon the
Collateral Agent shall apply the amount so held to pay such
Non-Contingent Secured Obligation; provided that, if the
other Secured Obligations theretofore paid pursuant to
subsection (a) were not paid in full, the Collateral Agent
shall apply the amount so held to pay the same percentage of
such Non-Contingent Secured Obligation as the percentage of
such other Secured Obligations theretofore paid pursuant to
subsection (a). If (i) the holder of such Contingent
Secured Obligation shall advise the Collateral Agent (with
at least three Business Days' prior notice to the Pledgor)
that no portion thereof remains in the category of a Con-
tingent Secured Obligation and (ii) any amount held pursuant
to this subsection (b) in respect of such Contingent Secured
Obligation remains after payment of all ratable amounts
payable pursuant to the preceding sentence with respect to
any portions thereof that became Non-Contingent Secured
Obligations, such remaining amount shall be applied by the
Collateral Agent in the order of priorities set forth in
subsection (a) of this Section.
(c) In making the payments and allocations requi-
red by this Section, the Collateral Agent may, (1) as to any
Guaranteed Obligations arising under an Interest Rate Pro-
tection Agreement or Further Letter of Credit Agreement,
rely upon information from the applicable counterparty
identified by the Pledgor pursuant to the Guarantee Agree-
ment and (2) as to any Existing Indenture obligations, rely
upon information from the Trustee under the applicable Exis-
ting Debt Indenture, and shall have no liability to the
Pledgor or any other Secured Party for actions taken in
reliance on such information except in the case of its gross
negligence or willful misconduct. All distributions made by
the Collateral Agent pursuant to this Section shall be final
(except in the event of manifest error) and the Collateral
Agent shall have no duty to inquire as to the application by
the Secured Parties of any amount distributed to them.
SECTION 14. Concerning the Collateral Agent
(a) The Collateral Agent has been appointed as
Collateral Agent pursuant to the Credit Agreement. The
actions of the Collateral Agent hereunder are subject to the
provisions of the Credit Agreement. The obligations of the
Collateral Agent hereunder are only those expressly set
forth herein. In any case in which the Collateral Agent is
authorized to exercise any power or discretion, the Colla-
teral Agent may refuse to do so unless directed in writing
by the Required Banks to act in the manner specified in such
direction.
(b) The Collateral Agent may resign at any time
by giving written notice thereof to the Secured Parties and
the Pledgor. Upon any resignation of the Collateral Agent,
the Required Banks shall have the right to appoint a succes-
sor Collateral Agent. If no successor Collateral Agent
shall have been so appointed by the Required Banks, and
shall have accepted such appointment, within 30 days after
the retiring Collateral Agent gives notice of resignation,
then the retiring Collateral Agent may, on behalf of the
Secured Parties, appoint a successor Collateral Agent, which
shall be a commercial bank organized or licensed under the
laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of its appointment as
Collateral Agent hereunder by a successor Collateral Agent,
such successor Collateral Agent shall thereupon succeed to
and become vested with all the rights and duties of the
retiring Collateral Agent, and the retiring Collateral Agent
shall be discharged from its duties and obligations here-
under. After any retiring Collateral Agent's resignation
hereunder as Collateral Agent, the provisions of this
Section shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Collateral Agent.
SECTION 15. Appointment of Co-Agents
At any time or times, in order to comply with any
legal requirement in any jurisdiction, the Collateral Agent
may appoint another bank or trust company or one or more
other persons, either to act as co-agent or co-agents,
jointly with the Collateral Agent, or to act as separate
agent or agents on behalf of the Secured Parties with such
power and authority as may be necessary for the effectual
operation of the provisions hereof and may be specified in
the instrument of appointment (which may, in the discretion
of the Collateral Agent, include provisions for the protec-
tion of such co-agent or separate agent similar to the
provisions of Section 14). Notwithstanding any such
appointment but only to the extent not inconsistent with
such legal requirements or, in the reasonable judgment of
the Collateral Agent, not unduly burdensome to it or any
such co-agent, the Pledgor shall, so long as no Event of
Default shall have occurred and be continuing, be entitled
to deal solely and directly with the Collateral Agent rather
than any such co-agent in connection with the Collateral
Agent's rights and obligations under this Agreement.
SECTION 16. Termination of Security Interests;
Release of Collateral
(a) When all the Credit Agreement Secured
Obligations have been paid in full and the Commitments of
the Banks to make any Loan or issue any Letter of Credit
under the Credit Agreement have expired, or if earlier the
occurrence of the Rating Target Date, this Agreement shall
terminate, except as expressly set forth herein, and all
rights to the Collateral shall revert to the Pledgor.
(b)(i) The Pledgor may from time to time prior to
the termination of this Agreement request the Collateral
Agent to release all or any of the Collateral, which request
shall be accompanied by a certificate of a Responsible
Officer stating (A) whether such release is requested in
connection with an Asset Sale, (B) whether a Default has
occurred and is continuing, (C) if such release is requested
in connection with an Asset Sale, identifying the cash,
Temporary Cash Investments and instruments comprising the
Net Proceeds of such Asset Sale that, in the good faith
determination of such Responsible Officer, are allocable to
the Collateral requested to be released (the "Collateral Net
Proceeds") and (D) if such release is requested in
connection with an Asset Sale, the amount, if any, of the
cash and Temporary Cash Investments included in the
Collateral Net Proceeds that is required to be applied by
the Borrower to the prepayment of the principal amount of
the Loans pursuant to Section 2.09(b)(i) of the Credit
Agreement within 14 days after the consummation of such
Asset Sale and the date on which such prepayment is to be
made. If such request is not in connection with an Asset
Sale, the Collateral Agent shall release Collateral pursuant
to such request but only with the consent of the Releasing
Banks and the Non-Bank Secured Parties.
(ii) If such request is in connection with an
Asset Sale and such certificate states that no Default has
occurred and is continuing, the Collateral Agent shall
release Collateral pursuant to such request without the
consent of any Secured Party but only against delivery to
the Collateral Agent of (A) the Non-Bank Percentage of each
element (cash, Temporary Cash Investments and instruments)
of the Collateral Net Proceeds and (B) all other Collateral
Net Proceeds.
(iii) If such request is in connection with an
Asset Sale and such certificate states that a Default has
occurred and is continuing, the Collateral Agent shall
release Collateral pursuant to such request without the
consent of any Secured Party but only against delivery to
the Collateral Agent of all cash and other property
constituting the portion of the Net Proceeds of such Asset
Sale allocable to the Collateral to be released (as set
forth in such certificate).
(iv) All such cash shall be held in the Collateral
Account and any such other property shall be held by the
Collateral Agent as Proceeds, subject to the Lien hereof,
and
(A) in all cases, even if any other subclause
below would otherwise apply, if an Event of Default shall
occur and be continuing, applied pursuant to Section 11
hereof;
(B) in the case of any cash or Temporary Cash
Investments included in Collateral Net Proceeds held
pursuant to subclause (ii)(B), applied for the account of
the Borrower (after reducing any such Temporary Cash
Investments to cash) to make prepayments of the Loans
pursuant to Section 2.09(b)(i) of the Credit Agreement as
set forth in the related certificate of a Responsible
Officer;
(C) in the case of any instrument included in
Collateral Net Proceeds held pursuant to subclause (ii)(B),
all income thereon or other payments in respect thereof
shall be applied for the account of the Borrower to make
prepayments of the Loans pursuant to Section 2.09(b)(i) of
the Credit Agreement as shall be specified from time to time
in a certificate of a Responsible Officer;
(D) in the case of any cash, Temporary Cash
Investments and instruments held pursuant to clause (iii),
(1) an amount equal to the Non-Bank
Percentage of each element of the Collateral Net
Proceeds (determined as of the date the Collateral
Agent received such Proceeds) shall be retained by
the Collateral Agent until the termination of this
Agreement (and then paid to the Pledgor or as it
shall direct), provided that if the Collateral
Agent receives a certificate of a Responsible
Officer stating that the Non-Bank Secured
Obligations have been paid in full, any such cash
and Temporary Cash Investments shall be applied
for the account of the Borrower to make
prepayments of the Loans to the extent required by
Section 2.09(b)(i) of the Credit Agreement and the
balance, if any, paid to the Pledgor or as it
shall direct and any instruments shall be applied
as set forth in the immediately preceeding clause
(C), and
(2) as to the balance, if a Responsible
Officer shall subsequently certify that no Default
has occurred and is continuing, any such cash and
Temporary Cash Investments shall be applied for
the account of the Borrower to make prepayments of
the Loans to the extent required by Section
2.09(b)(i) of the Credit Agreement and the
balance, if any, paid to the Pledgor or as it
shall direct and any instruments shall be applied
as set forth in the immediately preceding clause
(C), and
(E) in the case of any cash or other property
held pursuant to subclause (ii)(A), applied as set forth in
subclause (1) of the immediately preceding clause (D).
(iv) All such cash shall be held in the Collateral
Account and any such other property shall be held by the
Collateral Agent as Proceeds, subject to the Lien hereof,
and (A) if an Event of Default shall occur and be contin-
uing, applied pursuant to Section 13 hereof and (B) if a
Responsible Officer shall subsequently certify that no
Default has occurred and is continuing, paid to the Pledgor
or as it shall direct, except for any cash held pursuant to
subclause (ii), which shall be retained by the Collateral
Agent until the earlier of the termination of this Agreement
and the receipt by the Collateral Agent of a certificate of
a Responsible Officer stating that the Non-Bank Secured
Obligations have been paid in full (and at that time paid to
the Pledgor or as it shall direct).
(c) Upon any such termination of this Agreement or
release of Collateral, the Collateral Agent will, at the
expense of the Pledgor, deliver any certificates evidencing
Pledged Stock and any other Collateral held by it to the
Pledgor, and execute and deliver to the Pledgor such docu-
ments as the Pledgor shall reasonably request to evidence
the termination of this Agreement or the release of such
Collateral, as the case may be.
SECTION 17. Collateral Account
(a) There is hereby established with the Colla-
teral Agent a cash collateral account (the "Collateral
Account") in the name and under the control of the Colla-
teral Agent into which there shall be deposited from time to
time the cash proceeds of the Collateral required to be
delivered to the Collateral Agent pursuant to any provision
of this Agreement. Any income received by the Collateral
Agent with respect to the balance from time to time standing
to the credit of the Collateral Account, including any
interest or capital gains on Liquid Investments, shall
remain, or be deposited, in the Collateral Account. All
right, title and interest in and to the cash amounts on
deposit from time to time in the Collateral Account together
with any Liquid Investments from time to time made pursuant
to subsection (c) of this Section shall vest in the Colla-
teral Agent, shall constitute part of the Collateral here-
under and shall not constitute payment of the Secured
Obligations until applied thereto as hereinafter provided.
(b) Upon the occurrence and during the
continuation of an Event of Default, the Collateral Agent
shall, if so instructed by the Required Banks, apply or
cause to be applied (subject to collection) any or all of
the balance from time to time standing to the credit of the
Collateral Account in the manner specified in Section 13.
Upon the cure of such Event of Default, all Liquid
Investments held by the Collateral Agent in the Collateral
Account shall be reduced to cash and all cash amounts held
in the Collateral Account shall be promptly returned to the
Pledgor, provided that any Liquid Investments or cash held
in the Collateral Account arising out of matters of the
character described in Section 7 or 16 shall be applied as
provided therein.
(c) Amounts on deposit in the Collateral Account
shall be invested and re-invested from time to time in such
Liquid Investments as the Pledgor shall determine, which
Liquid Investments shall be held in the name and be under
the control of the Collateral Agent, provided that, if an
Event of Default has occurred and is continuing, the Colla-
teral Agent shall, if instructed by the Required Banks,
liquidate any such Liquid Securities and apply or cause to
be applied in the proceeds thereof to the payment of the
Secured Obligations in the manner specified in Section 13.
SECTION 18. Notices
All notices, requests and other communications to
any party hereunder shall be in writing (including bank
wire, telex, facsimile transmission or similar writing) and
shall be given to such party at its address or telex or
facsimile number set forth on the signature pages hereof.
Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is trans-
mitted to the telex number specified in this Section and the
appropriate answerback is received, (ii) if given by facsi-
mile transmission, when receipt of such transmission is
confirmed either orally or in writing, by the party recei-
ving such transmission, (iii) if given by mail, 72 hours
after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iv)
if given by any other means, when delivered at the address
specified in this Section; provided that notices to the
Collateral Agent shall not be effective until received.
SECTION 19. Waivers, Non-Exclusive Remedies
No failure on the part of the Collateral Agent to
exercise, and no delay in exercising and no course of deal-
ing with respect to, any right under this Agreement shall
operate as a waiver thereof; nor shall any single or partial
exercise by the Managing Agent of any right under the Credit
Agreement or the Collateral Agent under this Agreement or
any other Operative Agreement preclude the Collateral Agent
from any other or further exercise or the exercise of any
other right. The rights in this Agreement and the Credit
Agreement are cumulative and are not exclusive of any other
remedies provided by law.
SECTION 20. Successors and Assigns
This Agreement is for the benefit of the Colla-
teral Agent and the Secured Parties and their successors and
assigns, and in the event of an assignment of all or any of
the Secured Obligations, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be trans-
ferred with such indebtedness, provided that no counterparty
to an Interest Rate Protection Agreement or a Further Letter
of Credit Agreement shall be entitled to the benefits hereof
unless it is also a Bank. This Agreement shall be binding
on the Pledgor and its successors and assigns.
SECTION 21. Changes in Writing
Other than in respect of any release of Collateral
pursuant to Section 16 hereof, no amendment, modification,
supplement, termination or waiver of or to any provision of
this Agreement, nor consent to any departure by the Pledgor
therefrom, shall be effective unless in writing and signed
by the Collateral Agent and the Pledgor (with the requisite
consent, if any, of the Banks, the Required Banks or the
Releasing Banks required by Section 9.04 of the Credit
Agreement); provided that without the consent of the Banks
to whom a majority of the Interest Rate Obligations are
owed, no such amendment, modification, supplement, termina-
tion or waiver may (i) exclude the Interest Rate Obligations
from the definition of Secured Obligations or (ii) change
the provisions of clause Second of Section 13 hereof;
provided further that without the consent of the Banks to
whom a majority of the obligations under Further Letter of
Credit Agreements are owed, no such amendment, modification,
supplement, termination or waiver may (i) exclude any Fur-
ther Letter of Credit Agreement from the definition of
Secured Obligations or (ii) change the provisions of clause
Second of Section 13 hereof. Any amendment, modification or
supplement of or to any provision of this Agreement, any
waiver of any provision of this Agreement, and any consent
to any departure by the Pledgor from the terms of any provi-
sion of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which
made or given. Except where notice is specifically required
by this Agreement or any other Operative Agreement, no
notice to or demand on the Pledgor in any case shall entitle
the Pledgor to any other or further notice or demand in
similar or other circumstances.
SECTION 22. New York Law
This Agreement shall be construed in accordance
with and governed by the laws of the State of New York,
except as otherwise required by mandatory provisions of law
and except to the extent that remedies provided by the laws
of any jurisdiction other than New York are governed by the
laws of such jurisdiction.
SECTION 23. Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial
THE PLEDGOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY. THE PLEDGOR IRREV-
OCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF
THE PLEDGOR AND THE COLLATERAL AGENT HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 24. Severability
If any provision hereof is invalid or unenforce-
able in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Collateral
Agent and the Secured Parties in order to carry out the
intentions of the parties hereto as nearly as may be
possible; and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
SECTION 25. Counterparts
This Agreement may be signed in any number of
counterparts, each of which shall be an original, and all of
which taken together shall constitute a single instrument,
with the same effect as if the signatures thereto and hereto
were upon the same instrument.
SECTION 26. Obligations Absolute
All obligations of the Pledgor hereunder shall be
absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or
the like of the Pledgor;
(ii) any lack of validity or enforceability of
the Credit Agreement, any Letter of Credit, any Inter-
est Rate Protection Agreement, any Further Letter of
Credit Agreement or any other Operative Agreement, or
any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Secured Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit
Agreement, any Letter of Credit, any Interest Rate
Protection Agreement, any Further Letter of Credit
Agreement or any other Operative Agreement, or any
other agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of
any other collateral, or any release or amendment or
waiver of or consent to any departure from any guaran-
tee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver
of any right, remedy, power or privilege under or in
respect of this Agreement, any Interest Rate Protection
Agreement, any Further Letter of Credit Agreement, or
any other Operative Agreement except as specifically
set forth in a waiver granted pursuant to the provi-
sions of Section 19 hereof; or
(vi) any other circumstances which might other-
wise constitute a defense available to, or a discharge
of, the Pledgor.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective auth-
orized officers as of the day and year first above written.
[SUBSIDIARY], as Pledgor
(a ___________ corporation)
By___________________________
Name: John M. Thompson
Title: Vice President
c/o FLEMING COMPANIES, INC.
P. O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
Attn: Treasurer
Telecopier: (405) 840-7202
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Collateral Agent
By_____________________________
Name: Michael C. Mauer
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telex number: 177615
Telecopier: (212) 648-5336
EXHIBIT H-1
FORM OF
BORROWER SECURITY AGREEMENT
[Intentionally omitted.]
EXHIBIT H-2
FORM OF
SUBSIDIARY SECURITY AGREEMENT
AGREEMENT dated as of July 19, 1994, made by the
corporation identified as the Pledgor on the signature page
hereof, a corporation organized under the laws of the state
indicated on the signature page hereof (with its successors,
the "Pledgor"), in favor of MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent.
R E C I T A L S :
A. Pursuant to the Credit Agreement, dated as of
July 19, 1994 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Fleming Companies, Inc.
(the "Borrower"), the Pledgor, the Banks listed therein, the
Agents listed therein and Morgan Guaranty Trust Company of
New York, as Managing Agent for the Banks, the Banks have
agreed (i) to make loans to the Pledgor up to an aggregate
principal amount of $2,200,000,000 and (ii) to issue certain
letters of credit for the account of the Borrower.
B. It is contemplated that the Borrower may enter
into one or more agreements ("Interest Rate Protection
Agreements") with one or more of the Banks (as hereinafter
defined) regarding the interest rates with respect to loans
under the Credit Agreement (all obligations of the Borrower
now existing or hereafter arising under such Interest Rate
Protection Agreements, collectively, the "Interest Rate
Obligations").
C. It is contemplated that the Borrower may have
or enter into one or more agreements ("Further Letter of
Credit Agreements") with one or more of the Banks to issue
certain letters of credit (in addition to those issuable
pursuant to the Credit Agreement) for the account of the
Borrower in an aggregate face amount of up to $160,000,000.
D. The Credit Agreement provides, among other
things, that one condition to its effectiveness is the
execution and delivery by the Pledgor of a Subsidiary
Guarantee Agreement (the "Guarantee Agreement") dated as of
July 19, 1994, pursuant to which the Pledgor guarantees
certain obligations of the Borrower more specifically set
forth therein (the "Guaranteed Obligations");
E. It is a condition precedent to the obligations
of the Banks to make the loans under the Credit Agreement
and a further condition precedent to any letters of credit
being issued under the Credit Agreement and may be a
condition precedent to any Bank entering into Interest Rate
Protection Agreements or entering into or maintaining
Further Letter of Credit Agreements that the Pledgor execute
and deliver this Agreement.
F. As a consequence of certain negative pledge
clauses in other instruments and agreements by which the
Borrower is bound, the Pledgor must secure certain other
obligations of the Borrower existing on the date hereof
equally and ratably with its obligations under the Guarantee
Agreement.
G. This Agreement is given by the Pledgor in favor
of the Collateral Agent for its benefit and the benefit of
the Secured Parties, to the extent provided for herein, to
secure the payment and performance of all of the Secured
Obligations (as hereinafter defined).
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the Pledgor and the Collateral Agent hereby agree as
follows:
Section 1. Pledge. As collateral security for the
payment and performance when due of all the Secured
Obligations, the Pledgor hereby pledges, assigns, transfers
and grants to the Collateral Agent for the benefit of the
Secured Parties, a continuing first priority security
interest in and to all of the right, title and interest of
the Pledgor in, to and under the following (collectively,
the "Collateral"):
(a) each and every Receivable (as hereinafter
defined) now existing or hereafter arising from time to
time;
(b) all Inventory (as hereinafter defined)
now existing or hereafter acquired from time to time;
(c) the Collateral Account (as hereinafter
defined) and all cash deposited therein or other property
held therein from time to time;
(d) all Documents (as hereinafter defined)
relating to any of the foregoing; and
(e) all Proceeds (as hereinafter defined) of
any and all of the foregoing;
provided that the Collateral shall not include Excepted
Inventory and Excepted Receivables and provided further that
the Non-Bank Secured Parties shall be entitled to the
benefits of only the Security Interests in the Intercompany
Receivables Collateral.
Section 2. Secured Obligations. This Agreement
secures, and the Collateral is collateral security for, the
payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise (including, without
limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition
in bankruptcy or the operation of the automatic stay under
Section 361(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a)), of (i) all obligations of the Pledgor now
existing or hereafter arising under or in respect of the
Guarantee Agreement, and all obligations of the Borrower now
existing or hereafter arising with respect to the principal
of and premium, if any, and interest on the Existing
Indenture Obligations (including, without limitation, the
Pledgor's obligations to pay principal, interest and all
other charges, fees, expenses, commissions, reimbursements,
premiums, indemnities and other payments related to or in
respect of the Guaranteed Obligations and (ii) without
duplication of the amounts described in clause (i), all
obligations of the Pledgor now existing or hereafter arising
under or in respect of this Agreement (the obligations
described in clauses (i) and (ii), collectively, the
"Secured Obligations").
Section 3. No Release. Nothing set forth in this
Agreement shall relieve the Pledgor from the performance of
any term, covenant, condition or agreement on the Pledgor's
part to be performed or observed under or in respect of any
of the Collateral or from any liability to any Person under
or in respect of any of the Collateral or shall impose any
obligation on the Collateral Agent or any Secured Party to
perform or observe any such term, covenant, condition or
agreement on the Pledgor's part to be so performed or
observed or shall impose any liability on the Collateral
Agent or any Secured Party for any act or omission on the
part of the Pledgor relating thereto or for any breach of
any representation or warranty on the part of the Pledgor
contained in this Agreement or any other Operative
Agreement, or under or in respect of the Collateral or made
in connection herewith or therewith. The obligations of the
Pledgor contained in this Section 3 shall survive the
termination of this Agreement and the discharge of the
Pledgor's other obligations under this Agreement and under
the other Operative Agreements.
Section 4. Supplements by the Collateral Agent.
The Pledgor hereby authorizes the Collateral Agent, without
relieving the Pledgor of any obligations hereunder, to file
financing statements, continuation statements and other
documents, relative to all or any part thereof, without the
signature of the Pledgor where permitted by law, and the
Pledgor shall make, execute, endorse, acknowledge, file or
refile or make available (or, upon the occurrence of an
Event of Default, deliver) to the Collateral Agent from time
to time such lists, descriptions and designations of the
Collateral, copies of warehouse receipts, receipts in the
nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory
assignments, supplements, additional security agreements
(but in this instance only where required by law),
conveyances, financing statements, transfer endorsements,
powers of attorney, certificates, reports and other
assurances or instruments and take such further steps
relating to the Collateral and other property or rights
covered by the security interests hereby granted, which the
Collateral Agent reasonably deems appropriate or advisable,
wherever required or permitted by law, in order to perfect
and preserve the rights and interests granted to the
Collateral Agent hereunder or to carry into effect the
purposes of this Agreement or better to assure and confirm
unto the Collateral Agent its respective rights, powers and
remedies hereunder. All of the foregoing shall be at the
sole cost and expense of the Pledgor.
Section 5. Representations, Warranties and
Covenants. The Pledgor represents, warrants and covenants
as follows:
(a) Corporate Existence and Power. The
Pledgor is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by
the Pledgor of this Agreement are within the Pledgor's
corporate powers, 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 and
do not contravene, or constitute a default under, any
provisions of applicable law or regulation or of the
certificate of incorporation or by-laws of the Pledgor or
result in the creation or imposition of any Lien (other than
those contemplated by this Agreement) on any asset of the
Pledgor.
(c) Necessary Filings. Within 3 Business
Days of the date hereof, Pledgor shall cause the filing of
all filings, registrations and recordings necessary,
appropriate or requested by the Collateral Agent to create,
preserve, protect and perfect the security interest granted
by the Pledgor to the Collateral Agent hereby in respect of
the Collateral. Upon the filing of all such filings,
registrations and recordings, the security interest granted
to the Collateral Agent for the benefit of the Secured
Parties pursuant to this Agreement in and to the Collateral
shall constitute and hereafter will constitute a perfected
security interest therein, superior and prior to the rights
of all other Persons therein and subject to no other Liens
other than Permitted Liens.
(d) No Liens. The Pledgor is as of the date
hereof, and, as to Collateral acquired by it from time to
time after the date hereof, the Pledgor will be, the owner
of all Collateral free from any Lien or other right, title
or interest of any Person other than Permitted Liens, and
the Pledgor shall defend the Collateral against all claims
and demands, other than Permitted Liens, of all Persons at
any time claiming any interest therein adverse to the
Collateral Agent or any Secured Party.
(e) Other Financing Statements. There is no
financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) covering or
purporting to cover any interest of any kind in the
Collateral other than financing statements relating to
Permitted Liens, and so long as any of the Secured
Obligations remain unpaid or the Commitments of the Banks to
make any Loan or to issue any Letter of Credit shall not
have expired, the Pledgor shall not execute, authorize or
permit to be filed in any public office any financing
statement (or similar statement or instrument of
registration under the law of any jurisdiction) or
statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering
Permitted Liens.
(f) Chief Executive Office; Records. Other
than at the locations set forth on Schedule A hereto, the
Pledgor does not maintain any executive offices except as
set forth on Schedule 5(f) hereto. The chief executive
office of the Pledgor is located at one of such executive
offices. The Pledgor shall not move any of those executive
offices, except to such new location as the Pledgor may
establish in accordance with the last sentence of this
Section 5(f). All tangible evidence of the Receivables
constituting Collateral of the Pledgor and the only original
books of account and records of the Pledgor relating to the
Collateral are, and will continue to be, kept at one or more
of such executive offices, or at any such new location for
such an executive office as the Pledgor may establish in
accordance with the last sentence of this Section 5(f); any
new location of an executive office so designated shall
constitute an amendment of Schedule 5(f) for all purposes
hereof. All Collateral of the Pledgor is, and will continue
to be, controlled and monitored (including, without
limitation, for general accounting purposes) from one or
more of such executive offices as are set forth on Schedule
5(f), as such Schedule may be amended from time to time.
The Pledgor shall not establish a new location for any of
its executive offices nor shall it change its name until (i)
it shall have given the Collateral Agent not less than 20
days' prior written notice of its intention so to do,
clearly describing such new location or name and providing
such other information in connection therewith as the
Collateral Agent may request, and (ii) with respect to such
new location or name, the Pledgor shall have taken all
action satisfactory to the Collateral Agent or the Required
Banks to maintain the perfection and priority of the
security interest of the Collateral Agent for the benefit of
the Secured Parties in the Collateral intended to be granted
hereby.
(g) Location of Inventory. All Inventory
(other than Inventory constituting Excepted Inventory and
Excepted Receivables) held on the date hereof by the Pledgor
is located at one of the locations shown on Schedule A
hereto, except for Inventory in transit in the ordinary
course of business to or from one or more of such locations.
All Inventory now held or subsequently acquired shall be
kept at one of the locations shown on Schedule A hereto,
except for Inventory in transit in the ordinary course of
business to or from one or more of such locations, or such
new location as the Pledgor may establish if (i) in the case
of any location not within a jurisdiction covered by
financing statements filed pursuant to this Agreement, it
shall have given to the Collateral Agent at least 10 days'
prior written notice of its intention so to do, clearly
describing such new location and providing such other
information in connection therewith as the Collateral Agent
may request and, in the case of any other location, it gives
the Collateral Agent written notice of such location within
10 days after such action, and (ii) with respect to such new
location, the Pledgor shall have taken all action
satisfactory to the Collateral Agent or the Required Banks
to maintain the perfection and priority of the security
interest in the Collateral intended to be granted hereby.
(h) Authorization, Enforceability. The
Pledgor has the requisite corporate power, authority and
legal right to pledge and grant a security interest in all
the Collateral pursuant to this Agreement, and this
Agreement constitutes the legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor
in accordance with its terms.
(i) No Consents, etc. No consent of any
party (including, without limitation, stockholders or
creditors of the Pledgor or any account debtor under a
Receivable) and no consent, authorization, approval, or
other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is
required either (x) for the pledge by the Pledgor of the
Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by the Pledgor, or
(y) for the exercise by the Collateral Agent of the rights
provided for in this Agreement, or (z) for the exercise by
the Collateral Agent of the remedies in respect of the
Collateral pursuant to this Agreement.
(j) Collateral. All information set forth
herein, including the Schedules annexed hereto, and all
information contained in any documents, schedules and lists
heretofore delivered to any Secured Party in connection with
this Agreement, in each case, relating to the Collateral, is
accurate and complete in all respects.
(k) Initial Evidence of Collateral. Other
than in connection with the sale or lease of equipment or
the sale or lease of, or provision of services in connection
with, Computer Equipment, all of the Pledgor's rights to
payment for goods sold or services performed (other than for
services provided in connection with sales or leases of
Computer Equipment) are and will be initially evidenced by
only accounts, provided that in connection with the
refurbishment or expansion of an existing store supplied by
the Pledgor or the initial stocking of a store not
previously supplied by the Pledgor, the Pledgor may sell a
stock of inventory in consideration for a retailer note or
chattel paper.
Section 6. Special Provisions Concerning
Receivables.
(a) Maintenance of Records. The Pledgor
shall keep and maintain at its own cost and expense
satisfactory and complete records of each Receivable, in a
manner consistent with prudent business practices, and the
Pledgor shall make the same available to the Collateral
Agent for inspection, at the Pledgor's sole cost and
expense, during customary business hours upon demand. Upon
the occurrence and during the continuance of an Event of
Default, the Pledgor shall, at the Pledgor's sole cost and
expense, deliver all tangible evidence of Receivables,
including, without limitation, all documents evidencing
Receivables and any books and records relating thereto, to
the Collateral Agent or to its representatives (copies of
which evidence and books and records may be retained by the
Pledgor) at any time upon the demand of the Required Banks.
Upon the cure or waiver of any Event of Default, the
Collateral Agent shall promptly return all evidence and
books and records to the Pledgor. Upon the occurrence and
during the continuance of an Event of Default, the
Collateral Agent, with the consent of the Required Banks,
may transfer a full and complete copy of the Pledgor's
books, records, credit information, reports, memoranda and
all other writings relating to the Receivables to and for
the use by any Person that has acquired or is contemplating
acquisition of an interest in the Receivables or the
Collateral Agent's security interest therein without the
consent of the Pledgor.
(b) Modification of Terms, etc. The Pledgor
shall not rescind or cancel any indebtedness evidenced by
any Receivable constituting part of the Collateral or modify
any term thereof or make any adjustment with respect
thereto, or extend or renew any such indebtedness or
compromise or settle any dispute, claim, suit or legal
proceeding relating thereto other than in the ordinary
course of business consistent with past practice. The
Pledgor shall timely fulfill all obligations on its part to
be fulfilled under or in connection with the Receivables.
(c) Collection. The Pledgor shall take all
actions to cause to be collected from the account debtor of
each of the Receivables constituting part of the Collateral,
as and when due (including, without limitation, Receivables
that are delinquent, such Receivables to be collected in
accordance with generally accepted commercial collection
procedures), any and all amounts owing under or on account
of such Receivable, and apply forthwith upon receipt thereof
all such amounts as are so collected to the outstanding
balance of such Receivable. Subject to the rights of the
Collateral Agent hereunder upon the occurrence of an Event
of Default, the Pledgor may, with respect to a Receivable
constituting part of the Collateral, allow in the ordinary
course of business (i) a refund or credit due as a result of
returned or damaged or defective merchandise and (ii) such
extension of time to pay amounts due in respect of such
Receivables and such other modifications of payment terms or
settlements in respect of such Receivables as shall be
commercially reasonable in the circumstances, all in
accordance with the Pledgor's ordinary course of business
consistent with its collection practices as in effect from
time to time. The costs and expenses (including, without
limitation, attorney's fees) of collection, in any case,
whether incurred by the Pledgor, the Collateral Agent or any
Secured Party, shall be paid by the Pledgor.
(d) Instruments. If the Pledgor receives
from any Person any instrument or chattel paper in exchange
or substitution for or in payment or other satisfaction of
any account constituting part of the Collateral and, after
giving effect thereto the aggregate outstanding face amount
of all such instruments and chattel paper received from such
Person and its Affiliates by the Pledgor exceeds $125,000,
the Pledgor shall deliver to the Collateral Agent, within 10
days after receipt of the instrument or chattel paper in
question by the Pledgor, all such instruments and chattel
paper. Any instrument or chattel paper delivered to the
Collateral Agent pursuant to this Section 6(d) shall be
appropriately endorsed (if applicable) to the order of the
Collateral Agent, as agent for the Secured Parties, and
shall be held by the Collateral Agent as further security
hereunder. If there is a bank or trust company located in
Oklahoma City, satisfactory to the Collateral Agent in its
reasonable discretion, willing and able to serve, on terms
satisfactory to the Collateral Agent in its reasonable
discretion, as a co-agent pursuant to Section 30, the
Collateral Agent shall, if so requested by or on behalf of
the Pledgor, appoint such a bank as co-agent for purposes of
holding such instruments and chattel paper in custody. The
Pledgor may, on at least three Domestic Business Days'
notice to the Collateral Agent or any such co-agent, as the
case may be (or such shorter period as may be agreed to by
the Collateral Agent or any such co-agent from time to time
or in any particular instance), obtain redelivery of any
such instrument or chattel paper to it for purposes of
cancellation or surrender to the maker thereof either in
exchange for a substitute note or against payment thereof.
(e) Upon the occurrence and during the
continuance of an Event of Default, if the Collateral Agent,
at the request of the Required Banks, so directs, the
Pledgor shall cause all payments on account of the
Receivables constituting part of the Collateral to be held
by the Collateral Agent as cash collateral in the Collateral
Account, upon acceleration or otherwise. Without notice to
or assent by the Pledgor, the Collateral Agent may apply any
or all amounts then or thereafter held as cash collateral in
the manner provided in Section 11. The costs and expenses
(including, without limitation, reasonable attorney's fees)
of collection, whether incurred by the Collateral Agent or
any Secured Party, shall be paid by the Pledgor.
Section 7. Provisions Concerning All Collateral.
(a) Protection of the Collateral Agent's
Security. The Pledgor shall not take any action that
impairs the rights of the Collateral Agent or any Secured
Party in the Collateral. The Pledgor shall at all times
keep the Inventory insured at the Pledgor's own expense, to
the Collateral Agent's reasonable satisfaction, against
fire, theft and all other risks to which the Collateral may
be subject, in such amounts and with such deductibles as
would be maintained by operators of businesses similar to
the business of the Pledgor. Within 30 days of the date
hereof, each policy or certificate with respect to such
insurance shall be endorsed to the Collateral Agent's
satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral
Agent as an additional insured and as provided in the next
succeeding sentence) and such policy or certificate shall be
delivered to the Collateral Agent. Each such policy shall
state that (i) it cannot be canceled without 30 days prior
written notice to the Collateral Agent, (ii) no claim in
excess of $25,000,000 shall be settled with the insurance
provider without the prior consent of the Collateral Agent
and (iii) the Collateral Agent shall be a loss payee on any
claim in excess of $25,000,000. At least 10 days prior to
the expiration of any such policy of insurance, the Pledgor
shall deliver to the Collateral Agent either (i) an
extension or renewal policy or an insurance certificate
evidencing renewal or extension of such policy, or (ii)
notice that such policy has not been extended or renewed.
If such policy has not been extended or renewed, the Pledgor
agrees to consult with the Collateral Agent, and to furnish
any information that the Collateral Agent may request, as to
the status of negotiations with such insurance provider. If
the Pledgor shall fail to insure such Collateral in
accordance with prudent industry practices or if the Pledgor
shall fail to so endorse and deposit, or to extend or renew
prior to expiration, all such insurance policies or
certificates with respect thereto, the Collateral Agent
shall have the right (but shall be under no obligation) to
advance funds to procure or renew or extend such insurance
and the Pledgor agrees to reimburse the Collateral Agent for
all costs and expenses thereof, with interest on all such
funds from the date advanced until paid in full at 1% plus
the rate that would be applicable to Tranche A Base Rate
Loans under the Credit Agreement.
(b) Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent, as
directed by the Required Banks, shall have the option to
apply any proceeds of insurance received by it pursuant to
this Agreement toward the payment of the Secured Obligations
in accordance with Section 11 hereof or to continue to hold
such proceeds in the Collateral Account as additional
collateral to secure the performance by the Pledgor of the
Secured Obligations. So long as no Event of Default shall
have occurred and be continuing, the Pledgor shall have the
option (i) to direct the Collateral Agent to apply any
proceeds of insurance received by it toward payment of the
Secured Obligations in accordance with Section 11 hereof or
(ii) to elect, by delivery of written notice to the
Collateral Agent, to apply the proceeds of such insurance to
the repair or replacement of the item or items of Collateral
in respect of which such proceeds were received. In the
event that the Pledgor elects to apply such proceeds to the
repair or replacement of any item of Collateral pursuant to
clause (ii) of the preceding sentence, the Collateral Agent
shall release such proceeds from the Collateral Account as
soon as practicable following its receipt of the Pledgor's
written notice of such election. The Pledgor shall upon its
receipt of such proceeds promptly commence and diligently
continue to perform such repair or promptly effect such
replacement.
(c) Payment of Taxes; Claims. The Pledgor
shall pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and
supplies) against, the Collateral. Notwithstanding the
foregoing, the Pledgor may at its own expense contest the
amount or applicability of any of the obligations described
in the preceding sentence by appropriate legal or
administrative proceedings, prosecution of which operates to
prevent the collection thereof and the sale or forfeiture of
the Collateral or any part thereof to satisfy the same;
provided, however, that in connection with such contest, the
Pledgor shall, at the option and upon the request of the
Collateral Agent (a) have made provision for the payment of
such contested amount on the Pledgor's books if and to the
extent required by generally accepted accounting principles,
and (b) upon the occurrence and continuance of an Event of
Default, have deposited with the Collateral Agent in the
Collateral Account a sum sufficient to pay and discharge
such obligation and the Collateral Agent's estimate of all
interest and penalties related thereto, if requested by the
Required Banks.
(d) Financing Statements. The Pledgor shall
sign and deliver to the Collateral Agent such financing and
continuation statements, in form acceptable to the
Collateral Agent, as may from time to time be required to
continue and maintain a valid, enforceable, first priority
security interest in the Collateral as provided herein and
the other rights, as against third parties (other than
Permitted Liens), provided hereby, all in accordance with
the Uniform Commercial Code as enacted in any and all
relevant jurisdictions or any other relevant law. The
Pledgor shall pay any applicable filing fees and other
expenses related to the filing of such financing and
continuation statements. The Pledgor authorizes the
Collateral Agent to file any such financing or continuation
statements without the signature of the Pledgor where
permitted by law.
(e) Warehouse Receipts Non-Negotiable. If
any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of the
Inventory, the Pledgor shall not permit such warehouse
receipt or receipt in the nature thereof to be negotiable.
Section 8. Transfers and Other Liens. Except in
connection with sales and other dispositions permitted by
the Credit Agreement, the Pledgor shall not (i) sell,
convey, assign or otherwise dispose of, or grant any option
with respect to, any of the Collateral other than sales and
other dispositions of Inventory in the ordinary course of
business or (ii) create or permit to exist any Lien upon or
with respect to any of the Collateral other than Permitted
Liens and the Lien and security interest granted to the
Collateral Agent under this Agreement.
Section 9. Reasonable Care. The Collateral Agent
shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession
if such Collateral is accorded treatment substantially
equivalent to that which the Collateral Agent, in its
individual capacity, accords its own property, it being
understood that the Collateral Agent shall not have
responsibility for taking any necessary steps to preserve
rights against any Person with respect to any Collateral.
Section 10. Remedies Upon Default; Obtaining the
Collateral Upon Event of Default. (a) If an Event of
Default shall have occurred and be continuing, then and in
every such case, the Collateral Agent, upon being instructed
to do so by the Required Banks, may:
(i) Personally, or by agents or attorneys,
immediately take possession of the Collateral, or
any part hereof, from the Pledgor or any other
Person who then has possession of any part thereof
with or without notice or process of law, and for
that purpose enter upon the Pledgor's premises
where any of the Collateral is located and remove
such Collateral and use in connection with such
removal any and all services, supplies, aids and
other facilities of the Pledgor.
(ii) Instruct the obligor or obligors on any
agreement, instrument or other obligation
(including, without limitation, the Receivables)
constituting the Collateral to make any payment
required by the terms of such instrument or
agreement directly to the Collateral Agent;
provided, however, that in the event that any such
payments are made directly to the Pledgor, prior to
receipt by any such obligor of such instruction,
the Pledgor shall segregate all amounts received
pursuant thereto in a separate account and pay the
same promptly to the Collateral Agent.
(iii) Sell, assign or otherwise liquidate, or
direct the Pledgor to sell, assign or otherwise
liquidate, any or all investments made in whole or
in part with the Collateral or any part thereof,
and take possession of the proceeds of any such
sale, assignment or liquidation.
(iv) Take possession of the Collateral or any
part thereof, by directing the Pledgor in writing
to deliver the same to the Collateral Agent at any
place or places designated by the Collateral Agent,
in which event the Pledgor shall at its own
expense: (a) forthwith cause the same to be moved
to the place or places so designated by the
Collateral Agent and there be delivered to the
Collateral Agent; (b) store and keep any Collateral
so delivered to the Collateral Agent at such place
or places pending further action by the Collateral
Agent; and (c) while the Collateral shall be so
stored and kept, provide such security and
maintenance services as shall be necessary to
protect the same and to preserve and maintain them
in good condition. The Pledgor's obligation to
deliver the Collateral is of the essence of this
Agreement. Upon application to a court of equity
having jurisdiction, the Collateral Agent shall be
entitled to a decree requiring specific performance
by the Pledgor of such obligation.
(b) Remedies; Disposition of the Collateral.
(i) Upon the occurrence and continuance
of an Event of Default, the Collateral Agent, upon
being instructed to do so by the Required Banks,
may from time to time exercise in respect of the
Collateral, in addition to other rights and
remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured
party under the Uniform Commercial Code as enacted
in any and all relevant jurisdictions or under any
other relevant law at the time of an event of
default, and the Collateral Agent may also in its
sole discretion, without notice except as specified
below, (i) withdraw all cash in the Collateral
Account and apply such cash and any other cash held
by it as Collateral as specified in Section 11 and
(ii) if there is no such cash, or if such cash is
insufficient to pay all the Secured Obligations,
sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any
exchange, broker's board or at any of the
Collateral Agent's offices or elsewhere, for cash,
on credit or for future delivery, and at such price
or prices and upon such other terms as the
Collateral Agent may deem commercially reasonable.
The Collateral Agent or any other Secured Party or
any of their respective Affiliates may be the
purchaser of any or all of the Collateral at any
such sale and shall be entitled, for the purpose of
bidding and making settlement or payment of the
purchase price for all or any portion of the
Collateral sold at such sale, to use and apply any
of the Secured Obligations owed to such Person as a
credit on account of the purchase price of any
Collateral payable by such Person at such sale.
Each purchaser at any such sale shall acquire the
property sold absolutely free from any claim or
right on the part of the Pledgor, and the Pledgor
hereby waives, to the fullest extent permitted by
law, all rights of redemption, stay or appraisal
hereafter enacted. The Collateral Agent shall not
be obligated to make any sale of Collateral
regardless of notice of sale having been given.
The Collateral Agent may adjourn any public or
private sale from time to time by announcement at
the time and place fixed therefor, and such sale
may, without further notice, be made at the time
and place to which it was so adjourned. The
Pledgor hereby waives, to the fullest extent
permitted by law, any claims against the Collateral
Agent arising by reason of the fact that the price
at which any Collateral may have been sold at such
a private sale was less than the price which might
have been obtained at a public sale, even if the
Collateral Agent accepts the first offer received
and does not offer such Collateral to more than one
offeree.
(ii) The Pledgor agrees that, to the
extent notice of sale shall be required by law, 5
days' notice from the Collateral Agent of the time
and place of any public sale or of the time after
which a private sale or other intended disposition
is to take place shall be commercially reasonable
notification of such matters. No notification need
be given to the Pledgor if it has signed, after the
occurrence of an Event of Default, a statement
renouncing or modifying any right to notification
of sale or other intended disposition.
(c) Waiver of Claims. Except as otherwise
provided herein, the Pledgor hereby waives, to the fullest
extent permitted by applicable law, notice or judicial
hearing in connection with the Collateral Agent's taking
possession of any of the Collateral or of the Collateral
Agent's disposition of any of the Collateral, including,
without limitation, any and all prior notice and hearing for
any prejudgment remedy or remedies and any such right which
the Pledgor would otherwise have under law, and the Pledgor
hereby further waives, to the fullest extent permitted by
applicable law: (i) all damages occasioned by such taking of
possession; (ii) all other requirements as to the time,
place and terms of sale or other requirements with respect
to the enforcement of the Collateral Agent's rights
hereunder; and (iii) all rights of redemption, appraisal,
valuation, stay, extension or moratorium now or hereafter in
force under any applicable law. Any sale of, or the grant
of options to purchase, or any other realization upon, any
Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity, of
the Pledgor therein and thereto, and shall be a perpetual
bar both at law and in equity against the Pledgor and
against any and all Persons claiming or attempting to claim
the Collateral so sold, optioned or realized upon, or any
part thereof, from, through or under the Pledgor.
Section 11. Application of Proceeds. (a) The
proceeds received by the Collateral Agent in respect of any
sale of, collection from or other realization upon all or
any part of the Collateral pursuant to the exercise by the
Collateral Agent of its remedies as a secured creditor as
provided in Section 10 hereof (or held by it pursuant to
Section 18 hereof) and any cash held in the Collateral
Account shall be applied, together with any other sums then
held by the Collateral Agent pursuant to this Agreement,
promptly by the Collateral Agent while an Event of Default
has occurred and is continuing, upon being instructed to do
so by the Required Banks, as follows:
First, to the payment of all costs and
expenses, fees, commissions and taxes of such sale,
collection or other realization, including, without
limitation, reasonable compensation to the
Collateral Agent and its agents and counsel, and
all expenses, liabilities and advances made or
incurred by the Collateral Agent in connection
therewith, together with interest on each such
amount at 1% plus the rate that would be applicable
to Tranche A Base Rate Loans under the Credit
Agreement from and after the date such amount is
due, owing or unpaid until paid in full;
Second,
(a) in the case of any Intercompany
Receivables Collateral, to pay the Secured
Obligations ratably (or provide for the payment
thereof pursuant to subsection (b) of this
Section), until payment in full of all such Secured
Obligations shall have been made (or so provided
for), provided that before making any payment
pursuant to this subclause (a) of clause Second
ratably to the holders of the Secured Obligations,
the Collateral Agent shall first apply solely to
the Non-Bank Secured Obligations any amount held by
it pursuant to subclause (ii)(A) of Section 18(b)
and provided further that in the case of a
Guaranteed Obligation that is in respect of an
Interest Rate Protection Agreement, the principal
amount outstanding to a Bank under such Interest
Rate Protection Agreement at the time any such
payments are to be distributed in accordance with
this subclause (a) of clause Second shall be the
amount of the Borrower's obligations then due and
payable (including any early termination payments
then due) to such Bank under such Interest Rate
Protection Agreement; and
(b) in the case of any Bank Collateral, to pay
the Secured Obligations (other than the Non-Bank
Secured Obligations) ratably (or provide for the
payment thereof pursuant to subsection (b) of this
Section), until payment in full of all such Secured
Obligations shall have been made (or so provided
for); provided that in the case of a Guaranteed
Obligation that is in respect of an Interest Rate
Protection Agreement, the principal amount
outstanding to a Bank under such Interest Rate
Protection Agreement at the time any such payments
are to be distributed in accordance with this
subclause (b) of clause Second shall be the amount
of the Borrower's obligations then due and payable
(including any early termination payments then due)
to such Bank under such Interest Rate Protection
Agreement; and
Third, to the Pledgor, or its successors or
assigns, or to whomsoever may be lawfully entitled
to receive the same or as a court of competent
jurisdiction may direct, of any surplus then
remaining from such proceeds.
(b) If at any time any monies collected or
received by the Collateral Agent would, but for the
provisions of this subsection (b), be payable pursuant to
subsection (a) of this Section in respect of any Contingent
Secured Obligation, the Collateral Agent shall not apply
such monies to pay such Contingent Secured Obligation but
instead shall hold such monies in the Collateral Account.
The Collateral Agent shall so hold all such monies until
such time as the holder of such Contingent Secured
Obligation advises the Collateral Agent (with at least three
Business Days' prior notice to the Pledgor) that all or a
specified part of such Contingent Secured Obligation has
become a Non-Contingent Secured Obligation, whereupon the
Collateral Agent shall apply the amount so held to pay such
Non-Contingent Secured Obligation; provided that, if the
other Secured Obligations theretofore paid pursuant to
subsection (a) were not paid in full, the Collateral Agent
shall apply the amount so held to pay the same percentage of
such Non-Contingent Secured Obligation as the percentage of
such other Secured Obligations theretofore paid pursuant to
subsection (a). If (i) the holder of such Contingent
Secured Obligation shall advise the Collateral Agent (with
at least three Business Days' prior notice to the Pledgor)
that no portion thereof remains in the category of a
Contingent Secured Obligation and (ii) any amount held
pursuant to this subsection (b) in respect of such
Contingent Secured Obligation remains after payment of all
ratable amounts payable pursuant to the preceding sentence
with respect to any portions thereof that became Non-
Contingent Secured Obligations, such remaining amount shall
be applied by the Collateral Agent in the order of
priorities set forth in subsection (a) of this Section.
(c) In making the payments and allocations
required by this Section, the Collateral Agent may, (i) as
to any Guaranteed Obligations arising under an Interest Rate
Protection Agreement or Further Letter of Credit Agreement,
rely upon information from the applicable counterparty
identified by the Pledgor pursuant to the Guarantee
Agreement, and (2) as to any Existing Indenture Obligations,
rely upon information from the Trustee under the applicable
Existing Debt Indenture and shall have no liability to the
Pledgor or any other Secured Party for actions taken in
reliance on such information except in the case of its gross
negligence or willful misconduct. All distributions made by
the Collateral Agent pursuant to this Section shall be final
(except in the event of manifest error) and the Collateral
Agent shall have no duty to inquire as to the application by
the Secured Parties of any amount distributed to them.
Section 12. Expenses. The Pledgor will upon
demand pay to the Collateral Agent the amount of any and all
expenses, including the fees and expenses of its counsel and
the fees and expenses of any experts and agents which the
Collateral Agent may incur in connection with (i) the
collection of the Secured Obligations, (ii) the enforcement
and administration of this Agreement, (iii) the custody or
preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iv) the exercise
or enforcement of any of the rights of the Collateral Agent
or any Secured Party hereunder or (v) the failure by the
Pledgor to perform or observe any of the provisions hereof.
All amounts payable by the Pledgor under this Section 12
shall be due upon demand (and if not timely paid shall bear
interest at 1% plus the rate that would be applicable to
Tranche A Base Rate Loans under the Credit Agreement) and
shall be part of the Secured Obligations. The Pledgor's
obligations under this Section shall survive the termination
of this Agreement and the discharge of the Pledgor's other
obligations hereunder.
Section 13. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Collateral
Agent to exercise, no course of dealing with respect to, and
no delay on the part of the Collateral Agent in exercising,
any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by
law.
(b) In the event the Collateral Agent shall
have instituted any proceeding to enforce any right, power
or remedy under this Agreement by foreclosure, sale, entry
or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been
determined adversely to the Collateral Agent, then and in
every such case, the Pledgor, the Collateral Agent and each
holder of any of the Secured Obligations shall be restored
to their respective former positions and rights hereunder
with respect to the Collateral, and all rights, remedies and
powers of the Collateral Agent and the Secured Parties shall
continue as if no such proceeding had been instituted.
Section 14. The Collateral Agent. The Collateral
Agent has been appointed as collateral agent pursuant to the
Credit Agreement. The actions of the Collateral Agent
hereunder are subject to the provisions of the Credit
Agreement (including in particular Article VII thereof).
The obligations of the Collateral Agent hereunder are only
those expressly set forth herein. In any case in which the
Collateral Agent is authorized to exercise any power or
discretion, the Collateral Agent may refuse from such
exercise unless directed in writing by the Required Banks to
act in the manner specified in such direction. The
Collateral Agent shall have the right hereunder to make
demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking
action (including, without limitation, the release or
substitution of Collateral), in accordance with this
Agreement and the Credit Agreement. The Collateral Agent
may resign and a successor Collateral Agent may be appointed
in the manner provided in the Credit Agreement. Upon the
acceptance of any appointment as Collateral Agent by a
successor Collateral Agent, that successor Collateral Agent
shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Collateral Agent under this Agreement, and the retiring
Collateral Agent shall thereupon be discharged from its
duties and obligations under this Agreement. After any
retiring Collateral Agent's resignation, the provisions of
this Agreement shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement
while it was the Collateral Agent.
Section 15. Collateral Agent May Perform;
Collateral Agent Appointed Attorney-in-Fact. If the Pledgor
shall fail to do any act or thing that it has covenanted to
do hereunder or if any warranty on the part of the Pledgor
contained herein shall be breached, the Collateral Agent if
required by the Required Banks may (but shall not be
obligated to) upon three Business Days notice to the Pledgor
specifying the action to be taken, do the same or cause it
to be done or remedy any such breach, and may expend funds
for such purpose. Any and all amounts so expended by the
Collateral Agent shall be paid by the Pledgor promptly upon
demand therefor, with interest at 1% plus the rate that
would be applicable to Tranche A Base Rate Loans under the
Credit Agreement during the period from and including the
date on which such funds were so expended to the date of
repayment. The Pledgor's obligations under this Section 15
shall survive the termination of this Agreement and the
discharge of the Pledgor's other obligations under this
Agreement or any other Operative Agreement. The Pledgor
hereby appoints the Collateral Agent its attorney-in-fact,
with full authority in the place and stead of the Pledgor
and in the name of the Pledgor, or otherwise, from time to
time in the Collateral Agent's discretion to take any action
and to execute any instrument consistent with the terms of
this Agreement and the other Operative Agreements which the
Collateral Agent may deem necessary or advisable to
accomplish the purposes of this Agreement. The foregoing
grant and such appointment shall be irrevocable for the term
of this Agreement. The Pledgor hereby ratifies all that
such attorney shall lawfully do or cause to be done by
virtue hereof.
Section 16. Indemnity.
(a) Indemnity. The Pledgor agrees to
indemnify, pay and hold harmless the Collateral Agent and
each of the Secured Parties and the officers, directors,
employees, agents and affiliates of the Collateral Agent and
each of the Secured Parties (collectively called the
"Indemnitees") from and against any and all other
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs (including, without
limitation, settlement costs), expenses or disbursements of
any kind or nature whatsoever (including, without
limitation, the fees and disbursements of counsel for such
Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitee shall be
designated a party thereto), which may be imposed on,
incurred by, or asserted against that Indemnitee, in any
manner relating to or arising out of this Agreement or any
other Operative Agreement (including, without limitation,
any misrepresentation by the Pledgor in this Agreement or
any other Operative Agreement) (the "indemnified
liabilities"); provided that the Pledgor shall have no
obligation to an Indemnitee hereunder, with respect to
indemnified liabilities, if such indemnified liability arose
from the gross negligence or willful misconduct of that
Indemnitee. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any
law or public policy, the Pledgor shall contribute the
maximum which it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all
indemnified liabilities incurred by the Indemnitees or any
of them.
(b) Survival. The obligations of the Pledgor
contained in this Section 16 shall survive the termination
of this Agreement and the discharge of the Pledgor's other
obligations under this Agreement and the other Operative
Agreements.
(c) Reimbursement. Any amounts paid by any
Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured
by the Collateral.
Section 17. Modification in Writing. Other than
in respect of any release of Collateral pursuant to Section
18 hereof, no amendment, modification, supplement,
termination or waiver of or to any provision of this
Agreement, nor consent to any departure by the Pledgor
therefrom, shall be effective unless in writing and signed
by the Collateral Agent and the Pledgor (with the requisite
consent, if any, of the Banks, the Required Banks or the
Releasing Banks required by Section 9.04 of the Credit
Agreement); provided that without the consent of the Banks
to whom a majority of the Interest Rate Obligations are
owed, no such amendment, modification, supplement,
termination or waiver may (i) exclude the Interest Rate
Obligations from the definition of Secured Obligations or
(ii) change the provisions of clause Second of Section 11
hereof; provided further that without the consent of the
Banks to whom a majority of the obligations under the
Further Letter of Credit Agreements are owed, no such
amendment, modification, supplement, termination or waiver
may (i) exclude any Further Letter of Credit Agreement from
the definition of Secured Obligations. or (ii) change the
provisions of clause Second of Section 11 hereof. Any
amendment, modification or supplement of or to any provision
of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by the Pledgor
from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is
specifically required by this Agreement or any other
Operative Agreement, no notice to or demand on the Pledgor
in any case shall entitle the Pledgor to any other or
further notice or demand in similar or other circumstances.
Section 18. Termination; Release. (a) When all
the Credit Agreement Secured Obligations have been paid in
full and the Commitments of the Banks to make any Loan or to
issue any Letter of Credit under the Credit Agreement have
expired, or if earlier the occurrence of the Rating Target
Date, this Agreement shall terminate, except as expressly
set forth herein.
(b)(i) The Pledgor may from time to time prior
to the termination of this Agreement request the Collateral
Agent to release all or any of the Collateral, which request
shall be accompanied by a certificate of a Responsible
Officer stating (A) whether such release is requested in
connection with an Asset Sale, (B) whether a Default has
occurred and is continuing, (C) if such release is requested
in connection with an Asset Sale, identifying the cash,
Temporary Cash Investments and instruments comprising the
Net Proceeds of such Asset Sale that, in the good faith
determination of such Responsible Officer, are allocable to
the Collateral requested to be released (the "Collateral Net
Proceeds") and, if any of such Collateral is Intercompany
Receivables Collateral, the portion of the Collateral Net
Proceeds allocable to such Intercompany Receivables
Collateral (the "Intercompany Collateral Net Proceeds") and
(D) if such release is requested in connection with an Asset
Sale, the amount, if any, of the cash and Temporary Cash
Investments included in the Collateral Net Proceeds that is
required to be applied by the Borrower to the prepayment of
the principal amount of the Loans pursuant to Section
2.09(b)(i) of the Credit Agreement within 14 days after the
consummation of such Asset Sale and the date on which such
prepayment is to be made. If such request is not in
connection with an Asset Sale, the Collateral Agent shall
release Collateral pursuant to such request but only with,
if such Collateral does not include any Intercompany
Receivables Collateral, the consent of the Releasing Banks
and, if such Collateral does include any Intercompany
Receivables Collateral, the consent of the Releasing Banks
and the Non-Bank Secured Parties.
(ii) If such request is in connection with an
Asset Sale and such certificate states that no Default has
occurred and is continuing, the Collateral Agent shall
release Collateral pursuant to such request without the
consent of any Secured Party but only against delivery to
the Collateral Agent of (A) the Non-Bank Percentage of each
element (cash, Temporary Cash Investments and instruments)
of the Intercompany Collateral Net Proceeds (as set forth in
such certificate) and (B) all other Collateral Net Proceeds.
(iii) If such request is in connection with an
Asset Sale and such certificate states that a Default has
occurred and is continuing, the Collateral Agent shall
release Collateral pursuant to such request without the
consent of any Secured Party but only against delivery to
the Collateral Agent of all cash and other property
constituting the portion of the Net Proceeds of such Asset
Sale allocable to the Collateral to be released (as set
forth in such certificate).
(iv) All such cash shall be held in the
Collateral Account and any such other property shall be held
by the Collateral Agent as Proceeds, subject to the Lien
hereof, and
(A) in all cases, even if any other subclause
below would otherwise apply, if an Event of Default shall
occur and be continuing, applied pursuant to Section 11
hereof;
(B) in the case of any cash or Temporary Cash
Investments included in Collateral Net Proceeds held
pursuant to subclause (ii)(B), applied for the account of
the Borrower (after reducing any such Temporary Cash
Investments to cash) to make prepayments of the Loans
pursuant to Section 2.09(b)(i) of the Credit Agreement as
set forth in the related certificate of a Responsible
Officer;
(C) in the case of any instrument included in
Collateral Net Proceeds held pursuant to subclause (ii)(B),
all income thereon or other payments in respect thereof
shall be applied for the account of the Borrower to make
prepayments of the Loans pursuant to Section 2.09(b)(i) of
the Credit Agreement as shall be specified from time to time
in a certificate of a Responsible Officer;
(D) in the case of any cash, Temporary Cash
Investments and instruments held pursuant to clause (iii),
(1) an amount equal to the Non-Bank
Percentage of each element of the Intercompany
Collateral Net Proceeds (determined as of the
date the Collateral Agent received such
Proceeds) shall be retained by the Collateral
Agent until the termination of this Agreement
(and then paid to the Pledgor or as it shall
direct), provided that if the Collateral Agent
receives a certificate of a Responsible
Officer stating that the Non-Bank Secured
Obligations have been paid in full, any such
cash and Temporary Cash Investments shall be
applied for the account of the Borrower to
make prepayments of the Loans to the extent
required by Section 2.09(b)(i) of the Credit
Agreement and the balance, if any, paid to the
Pledgor or as it shall direct, and any
instruments shall be applied as set forth in
the immediately preceding clause (C), and
(2) as to the balance, if a Responsible
Officer shall subsequently certify that no
Default has occurred and is continuing, any
such cash and Temporary Cash Investments shall
be applied for the account of the Borrower to
make prepayments of the Loans to the extent
required by Section 2.09(b)(i) of the Credit
Agreement and the balance, if any, paid to the
Pledgor or as it shall direct and any
instruments shall be applied as set forth in
the immediately preceding clause (C), and
(E) in the case of any cash or other property
held pursuant to subclause (ii)(A), applied as set forth in
subclause (1) of the immediately preceding clause (D).
(c) Upon termination of this Agreement or any
release of Collateral in accordance with the provisions
hereof, the Collateral Agent shall, upon the request and at
the sole cost and expense of the Pledgor, forthwith assign,
transfer and deliver to the Pledgor, against receipt and
without recourse to or warranty by the Collateral Agent,
such of the Collateral to be released (in the case of a
release) as may be in possession of the Collateral Agent and
as shall not have been sold or otherwise applied pursuant to
the terms hereof, and, with respect to any other Collateral,
proper instruments (including Uniform Commercial Code
termination statements on Form UCC-3) acknowledging the
termination of this Agreement or the release of such
Collateral, as the case may be.
Section 19. Collateral Account.
(a) There is hereby established with the
Collateral Agent a cash collateral account (the "Collateral
Account") in the name and under the control of the
Collateral Agent into which there shall be deposited from
time to time the cash proceeds of the Collateral required to
be delivered to the Collateral Agent pursuant to any
provision of this Agreement. Any income received by the
Collateral Agent with respect to the balance from time to
time standing to the credit of the Collateral Account,
including any interest or capital gains on Liquid
Investments, shall remain, or be deposited, in the
Collateral Account. All right, title and interest in and to
the cash amounts on deposit from time to time in the
Collateral Account together with any Liquid Investments from
time to time made pursuant to subsection (c) of this Section
shall vest in the Collateral Agent, shall constitute part of
the Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied thereto as hereinafter
provided.
(b) Upon the occurrence and during the
continuation of an Event of Default, the Collateral Agent
shall, if so instructed by the Required Banks, apply or
cause to be applied (subject to collection) any or all of
the balance from time to time standing to the credit of the
Collateral Account in the manner specified in Section 11.
Upon the cure of such Event of Default, all Liquid
Investments held by the Collateral Agent in the Collateral
Account shall be reduced to cash and all cash amounts held
in the Collateral Account shall be promptly returned to the
Pledgor, provided that any Liquid Investments or cash held
in the Collateral Account arising out of matters of the
character described in Section 6(d), 7(b) or 18 shall be
applied as provided therein.
(c) Amounts on deposit in the Collateral
Account shall be invested and re-invested from time to time
in such Liquid Investments as the Pledgor shall determine,
which Liquid Investments shall be held in the name and be
under the control of the Collateral Agent, provided that, if
an Event of Default has occurred and is continuing, the
Collateral Agent shall, if instructed by the Required Banks,
liquidate any such Liquid Securities and apply or cause to
be applied in the proceeds thereof to the payment of the
Secured Obligations in the manner specified in Section 11.
Section 20. Definitions. Capitalized terms used
and not defined herein shall have the meanings assigned to
them in the Credit Agreement. Unless otherwise defined
herein or in the Credit Agreement, or unless the context
otherwise requires, all terms used herein which are defined
in Article 9 of the New York Uniform Commercial Code as in
effect on the date hereof have the meanings stated therein.
The following terms shall have the following meanings.
"Bank Collateral" means all Collateral other
than Intercompany Receivables Collateral.
"Bank Secured Obligations" means the Secured
Obligations other than the Non-Bank Secured Obligations,
provided that at any time of determination no amount of the
Borrower's obligations under any Interest Rate Protection
Agreement shall be included in Bank Secured Obligations that
are Non-Contingent Secured Obligations unless such
obligations are then due and payable.
"Contingent Secured Obligation" means at any
time any Guaranteed Obligation (or portion thereof) that is
at such time:
(i) an obligation to reimburse a Bank for
drawings not yet made under a letter of credit
issued or to be issued by such Bank or
(ii) an obligation to provide collateral to or
for the benefit of a Bank to secure reimbursement
obligations arising from drawings not yet made
under a letter of credit issued or to be issued by
such Bank or to make any other payment to the
Issuing Bank that such Issuing Bank would not be
entitled to retain if no drawings were made under
the relevant letter of credit after the time of
determination.
"Credit Agreement Secured Obligations" means
the Secured Obligations arising under the Credit Agreement.
"Documents" shall mean all documents and all
books, records, ledgers, printouts, computer recording
media, data files, tapes, file materials and other papers
containing information relating to (a) Receivables and any
account debtors, beneficiaries and subcontractors in respect
thereof and (b) all other Collateral.
"Existing Debt Indentures" means (i) the
Indenture dated as of December 1, 1989, as supplemented to
the date hereof, from the Borrower to Morgan Guaranty Trust
Company of New York, as Trustee, and (ii) the Indenture
dated as of March 15, 1986, as supplemented to the date
hereof, from the Borrower to Morgan Guaranty Trust Company
of New York, as Trustee.
"Existing Indenture Obligations" means the
notes and debentures of the Borrower outstanding from time
to time under the Existing Debt Indentures, provided that
the term Existing Indenture Obligations shall not include
any such securities that are not issued and outstanding on
July 19, 1994 unless such securities have been issued in
exchange or substitution (which do not include any
refinancing or refunding) for any securities constituting
Existing Indenture Obligations that were outstanding on July
19, 1994.
"Intercompany Receivable" means any Receivable
the obligor of which is a Domestic Subsidiary (as defined in
the Existing Debt Indentures).
"Intercompany Receivables Collateral" means
the Intercompany Receivables, any instruments, chattel paper
or Document relating to any Intercompany Receivables and any
Proceeds of any thereof.
"Inventory" shall mean all inventory and, in
any event, shall include, without limitation, wherever
located, and whether now existing or hereafter acquired, all
raw materials, work in process, returned goods, finished
goods and consigned goods to the extent of the consignee's
interest therein, materials and supplies of any kind or
nature which are or might be used in connection with the
manufacture, printing, publication, packing, shipping,
advertising, selling or finishing of any such goods, and all
other products, goods, materials and supplies, provided,
however, that personal computers, electronic point-of-sale
equipment and related software and printers ("Computer
Equipment") shall not constitute Inventory.
"Liquid Investment" means (i) direct
obligations of the United States or any agency thereof, or
obligations guaranteed by the United Sates or any agency
thereof, (ii) commercial paper rated in the highest grade by
a nationally recognized credit rating agency or (iii) time
deposits with, including certificates of deposit issued by,
any office located in the United States of any bank or trust
company (including a bank or trust company acting as the
Collateral Agent or a co-agent hereunder) which is organized
under the laws of the United States or any state thereof and
has capital, surplus and undivided profits aggregating at
least $1,000,000,000; provided in each case that (x) such
Liquid Investment matures within 90 days from the date of
acquisition thereof and (y) in order to provide the
Collateral Agent, for the benefit of the Secured Parties,
with a perfected security interest therein, such Liquid
Investment is:
(1) evidenced by a certificate or instrument
which is negotiable, or if non-negotiable is issued
in the name of the Collateral Agent or its nominee,
and which (together with any appropriate
instruments of transfer) is delivered to, and held
by, the Collateral Agent or an agent thereof (which
shall not be the Pledgor or any of its Affiliates)
in the State of New York;
(2) issued by the U.S. Treasury in book-entry
form and subject to pledge under then-applicable
state law and Treasury regulations and held by the
Collateral Agent at a Federal Reserve Bank;
provided that the books of the Collateral Agent
reflect that such Treasury securities are held as
Collateral under this Agreement in compliance with
then applicable Treasury regulations regarding the
perfection of security interests in Treasury
securities; or
(3) otherwise issued, evidenced, registered
or recorded in such manner as will provide the
Collateral Agent, for the benefit of the Secured
Parties, with a perfected security interest
therein.
"Non-Bank Percentage" means, as of any time of
determination, the percentage obtained by dividing the
then-outstanding principal amount of the Non-Bank Secured
Obligations by the sum of the then-outstanding principal
amount of (a) the Non-Bank Secured Obligations and (b) any
Bank Secured Obligations that are Non-Contingent Secured
Obligations.
"Non-Bank Secured Obligations" means the
Secured Obligations held by the Non-Bank Secured Parties.
"Non-Bank Secured Parties" means the holders
from time to time of the Existing Indenture Obligations.
"Non-Contingent Secured Obligation" means at
any time any Secured Obligation (or portion thereof) that is
not a Contingent Secured Obligation at such time.
"Permitted Liens" means any Lien permitted by
clauses (a), (b), (c), (d), (e), (f), (g) and (o) of Section
5.10 of the Credit Agreement.
"Proceeds" shall mean all proceeds and, in any
event, shall include, without limitation, any and all (i)
proceeds of any insurance (except payments made to a Person
which is not a party to this Agreement), indemnity, warranty
or guaranty payable to the Collateral Agent or to the
Pledgor from time to time with respect to any of the
Collateral, (ii) payments (in any form whatsoever) made or
due and payable to the Pledgor from time to time in
connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral
by any governmental authority (or any person acting on
behalf of a governmental authority), (iii) instruments
representing obligations to pay amounts in respect of
Inventory or Receivables, (iv) products of the Collateral
and (v) other amounts from time to time paid or payable
under or in connection with any of the Collateral.
"Receivables" shall mean:
(a) all of the Pledgor's rights to payment for
goods sold or services performed by the Pledgor or any other
party, whether now in existence or arising from time to time
hereafter, evidenced by or consisting of accounts, together
with (i) all instruments or chattel paper received in
exchange or substitution for, or in payment or other
satisfaction of, any such account (but not including any
instrument or chattel paper arising out of a transaction of
the character described in the proviso to Section 5(k)), and
(ii) all of the Pledgor's rights under any guarantees,
indemnities, letters of credit or other collateral securing
the payment of any such account, provided that receivables
related to services provided in connection with the lease of
Computer Equipment shall not constitute Receivables
hereunder; and
(b) any chattel paper or instrument or any
right to receive a payment of money which constitutes an
account, contract right or general intangible, but only in
such instances where the obligor is the Borrower or a
Subsidiary, and all of the Pledgor's rights under any
guarantees, indemnities, letters of credit or other
collateral securing the payment of any thereof.
"Responsible Officer" means the Chairman of
the Board, the Vice Chairman of the Board, the Chief
Executive Officer, the Chief Financial Officer, the Chief
Operating Officer, the President or the Treasurer of the
Borrower.
"Secured Parties" means (i) the holders from
time to time of the Secured Obligations and (ii) the
Collateral Agent, provided that for purposes of any notice
to or consent required from the Non-Bank Secured Parties,
the Trustee under each Existing Debt Indenture at the time
in question shall be treated as the Non-Bank Secured Party
with respect to the Existing Indenture Obligations
thereunder and all payments to be made to or for the benefit
of any holder of an Existing Indenture Obligation shall be
made to the Trustee in question and the Collateral Agent
shall have no further responsibilities or liability with
respect thereto.
"Security Interests" means the security
interests in the Collateral granted hereunder securing the
Secured Obligations.
Section 21. Notices. Unless otherwise
provided herein or in the Credit Agreement, any notice or
other communication herein required or permitted to be given
shall be given in the manner set forth in the Credit
Agreement, if to the Pledgor, addressed to it at the address
set forth on the signature page of this Agreement, if to the
Collateral Agent, addressed to it at the address set forth
on the signature page of this Agreement or as to any party
at such other address as shall be designated by such party
in a written notice to the other party complying as to
delivery with the terms of this Section 21; provided that
notices to the Collateral Agent shall not be effective until
received by the Collateral Agent.
Section 22. Continuing Security Interest;
Assignment. This Agreement shall create a continuing
security interest in the Collateral and shall (i) be binding
upon the Pledgor, its successors and assigns, and (ii)
inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral
Agent and the other Secured Parties and each of their
respective successors, transferees and assigns; no other
Persons (including, without limitation, any other creditor
of the Pledgor) shall have any interest herein or any right
or benefit with respect hereto. Without limiting the
generality of the foregoing clause (ii), any Bank may assign
or otherwise transfer any indebtedness held by it secured by
this Agreement to any other Person, and such other Person
shall thereupon become vested with all the benefits in
respect thereof granted to such Bank, herein or otherwise,
subject however, with respect to any Bank, to the provisions
of the Credit Agreement and provided further that no
counterparty to an Interest Rate Protection Agreement or a
Further Letter of Credit Agreement shall be entitled to the
benefits hereof unless it is also a Bank.
Section 23. GOVERNING LAW; TERMS. THIS
AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR PROPERTY ARE GOVERNED BY THE LAWS
OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 24. CONSENT TO JURISDICTION AND
SERVICE OF PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST THE PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT THE PLEDGOR ACCEPTS FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE COLLATERAL
AGENT TO BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE COURTS
OF ANY OTHER JURISDICTION.
Section 25. Severability of Provisions. Any
provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 26. Execution in Counterparts. This
Agreement and any amendments, waivers, consents or
supplements hereto may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered
shall be deemed to be an original, but all such counterparts
together shall constitute one and the same agreement.
Section 27. Headings. The Section headings
used in this Agreement are for convenience of reference only
and shall not affect the construction of this Agreement.
Section 28. Obligations Absolute. All
obligations of the Pledgor hereunder shall be absolute and
unconditional irrespective of:
(i) any bankruptcy, insolvency,
reorganization, arrangement, readjustment,
composition, liquidation or the like of the
Pledgor;
(ii) any lack of validity or enforceability
of the Credit Agreement, any Letter of Credit, any
Interest Rate Protection Agreement, any Further
Letter of Credit Agreement or any other Operative
Agreement, or any other agreement or instrument
relating thereto;
(iii) any change in the time, manner or place
of payment of, or in any other term of, all or any
of the Secured Obligations, or any other amendment
or waiver of or any consent to any departure from
the Credit Agreement, any Letter of Credit, any
Interest Rate Protection Agreement, any Further
Letter of Credit Agreement or any other Operative
Agreement, or any other agreement or instrument
relating thereto;
(iv) any exchange, release or non-perfection
of any other collateral, or any release or
amendment or waiver of or consent to any departure
from any guarantee, for all or any of the Secured
Obligations;
(v) any exercise or non-exercise, or any
waiver of any right, remedy, power or privilege
under or in respect of this Agreement, any Interest
Rate Protection Agreement, any Further Letter of
Credit Agreement, or any other Operative Agreement
except as specifically set forth in a waiver
granted pursuant to the provisions of Section 17
hereof; or
(vi) any other circumstances which might
otherwise constitute a defense available to, or a
discharge of, the Pledgor.
Section 29. Future Advances. This Agreement
shall secure the payment of any amounts advanced from time
to time pursuant to the Credit Agreement or any Further
Letter of Credit Agreement.
Section 30. Appointment of Co-Agents. At any
time or times, in order to comply with any legal requirement
in any jurisdiction or in connection with Section 6(d), the
Collateral Agent may appoint another bank or trust company
or one or more other persons, either to act as co-agent or
co-agents, jointly with the Collateral Agent, or to act as
separate agent or agents on behalf of the Secured Parties
with such power and authority as may be necessary for the
effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in
the discretion of the Collateral Agent, include provisions
for the protection of such co-agent or separate agent
similar to the provisions of or incorporated by reference in
Section 14). Notwithstanding any such appointment but only
to the extent not inconsistent with such legal requirements
or, in the reasonable judgment of the Collateral Agent, not
unduly burdensome to it or any such co-agent, the Pledgor
shall, so long as no Event of Default shall have occurred
and be continuing, be entitled to deal solely and directly
with the Collateral Agent rather than any such co-agent in
connection with the Collateral Agent's rights and
obligations under this Agreement.
Section 31. The other provisions of this
Agreement to the contrary notwithstanding, the obligation of
the Pledgor to file financing statements in the State of
Tennessee with respect to Collateral shall be subject to the
following. Financing statements need be filed in the State
of Tennessee by the Pledgor and all other parties to a
Security Document (collectively, the "Pledgors") only with
respect to Collateral having an aggregate value equal to
$108.25 million, to be allocated among all Pledgors on the
basis of the estimated value of Inventory located in
Tennessee owned by each of them as of a date reasonably
proximate to the date hereof, provided that this sentence
shall not affect the determination at any time of whether
the Collateral Requirement has been met. In connection with
the foregoing, the Pledgor represents and warrants to the
Collateral Agent, for the benefit of the Banks, that the
aggregate value as of a date reasonably proximate to the
date hereof of all Inventory owned by the Pledgors located
in the State of Tennessee is approximately $90.2 million.
IN WITNESS WHEREOF, the Pledgor has caused
this Agreement to be executed and delivered by its duly
authorized officer as of the date first above written.
[SUBSIDIARY], as Pledgor
(a ______________ corporation)
By______________________________
Name: John M. Thompson
Title: Vice President
FLEMING COMPANIES, INC.
c/o P. O. Box 26647
6301 Waterford Boulevard
Oklahoma City, Oklahoma 73126
Attn: Treasurer
Telecopier: (405) 840-7202
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Collateral
Agent
By ______________________________
Name: Michael C. Mauer
Title: Vice President
Notice Address:
60 Wall Street
New York, New York 10260
Attention: Loan Department
Telecopier: (212) 648-5016
Telex: 177615