CREDIT AGREEMENT
Dated as of March 29, 2001
by and among
THE HAIN CELESTIAL GROUP, INC.
and
FLEET NATIONAL BANK
as Administrative Agent,
SUNTRUST BANK
as Syndication Agent,
HSBC BANK USA
as Documentation Agent
and
THE LENDERS PARTY HERETO
FLEET SECURITIES, INC.,
LEAD ARRANGER
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS.....................................1
SECTION 1.01. Definitions............................................1
SECTION 1.02. Terms Generally.......................................21
ARTICLE II
LOANS...............................................................22
SECTION 2.01. Revolving Credit Facility A Loans - 4 Year Facility...22
SECTION 2.02. Revolving Credit Facility A Note......................23
SECTION 2.03. Letters of Credit. ...................................23
SECTION 2.04. Swingline Loans.......................................27
SECTION 2.05. Revolving Credit Facility B Loans - 364 Day Facility..29
SECTION 2.06. Revolving Credit Facility B Note......................30
ARTICLE III
PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;
FEES AND PAYMENTS....................................................31
SECTION 3.01. Interest Rate; Continuation and Conversion of Loans...31
SECTION 3.02. Use of Proceeds.......................................33
SECTION 3.03. Prepayments...........................................33
SECTION 3.04. Fees..................................................34
SECTION 3.05. Inability to Determine Interest Rate .................35
SECTION 3.06. Illegality ...........................................35
SECTION 3.07. Increased Costs.......................................35
SECTION 3.08. Indemnity.............................................37
SECTION 3.09. Mitigation, Obligations; Replacement of Lenders.......37
SECTION 3.10. Taxes.................................................38
SECTION 3.11. Pro Rata Treatment and Payments.......................40
SECTION 3.12. Funding and Disbursement of Loans.....................41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES......................................41
SECTION 4.01. Organization, Powers. ...............................43
SECTION 4.02. Authorization of Borrowing, Enforceable Obligations...43
SECTION 4.03. Financial Condition...................................44
SECTION 4.04. Taxes.................................................44
SECTION 4.05. Title to Properties...................................44
SECTION 4.06. Litigation............................................45
SECTION 4.07. Agreements............................................45
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SECTION 4.08. Compliance with ERISA..........................45
SECTION 4.09. Federal Reserve Regulations; Use of Proceeds...45
SECTION 4.10. Approval.......................................46
SECTION 4.11. Subsidiaries and Affiliates....................46
SECTION 4.12. Hazardous Materials............................46
SECTION 4.13. Investment Company Act.........................46
SECTION 4.14. No Default.....................................46
SECTION 4.15. Credit Arrangements............................46
SECTION 4.16. Permits and Licenses...........................47
SECTION 4.17. Compliance with Law............................47
SECTION 4.18. Disclosure.....................................47
SECTION 4.19. Labor Disputes and Acts of God.................47
SECTION 4.20. Pledge Agreements..............................47
ARTICLE V
CONDITIONS OF LENDING.....................................47
SECTION 5.01. Conditions to Initial Extension of Credit...48
SECTION 5.02. Conditions to Extensions of Credit..........50
ARTICLE VI
AFFIRMATIVE COVENANTS..........................................50
SECTION 6.01. Existence, Properties, Insurance.................50
SECTION 6.02. Payment of Indebtedness and Taxes................51
SECTION 6.03. Financial Statements, Reports, etc...............51
SECTION 6.04. Books and Records; Access to Premises............52
SECTION 6.05. Notice of Adverse Change.........................53
SECTION 6.06. Notice of Default................................53
SECTION 6.07. Notice of Litigation.............................53
SECTION 6.08. Notice of Default in Other Agreements............53
SECTION 6.09. Notice of ERISA Event............................54
SECTION 6.10. Notice of Environmental Law Violations...........54
SECTION 6.11. Compliance with Applicable Laws..................54
SECTION 6.12. Additional Subsidiaries..........................54
SECTION 6.13. Environmental Laws...............................55
SECTION 6.14. Management Letters...............................55
ARTICLE VII
NEGATIVE COVENANTS..........................................55
SECTION 7.01. Indebtedness..................................56
SECTION 7.02. Liens.........................................57
SECTION 7.03. Guaranties....................................58
SECTION 7.04. Sale of Assets................................58
SECTION 7.05. Sales of Receivables..........................59
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SECTION 7.06. Loans and Investments.........................59
SECTION 7.07. Nature of Business............................60
SECTION 7.08. Transfer of Equity in Hain Europe.............60
SECTION 7.09. Federal Reserve Regulations...................61
SECTION 7.10. Accounting Policies and Procedures............61
SECTION 7.11. Hazardous Materials...........................61
SECTION 7.12. Limitations on Fundamental Changes............61
SECTION 7.13. Financial Condition Covenants.................62
SECTION 7.14. Subordinated Debt.............................62
SECTION 7.15. Dividends.....................................62
SECTION 7.16. Transactions with Affiliates..................63
SECTION 7.17. Negative Pledge...............................63
ARTICLE VIII
EVENTS OF DEFAULT.............................................63
SECTION 8.01. Events of Default..................63
ARTICLE IX
THE ADMINISTRATIVE AGENT.............................................66
SECTION 9.01. Appointment, Powers and Immunities.....................66
SECTION 9.02. Reliance by Administrative Agent.......................66
SECTION 9.03. Events of Default......................................66
SECTION 9.04. Rights as a Lender.....................................67
SECTION 9.05. Indemnification........................................67
SECTION 9.06. Non-Reliance on Administrative Agent and Other Lenders.67
SECTION 9.07. Failure to Act.........................................68
SECTION 9.08. Resignation of an Agent................................68
SECTION 9.09. Sharing of Collateral and Payments.....................68
ARTICLE X
MISCELLANEOUS........................................................69
SECTION 10.01. Notices...............................................69
SECTION 10.02. Effectiveness; Survival...............................70
SECTION 10.03. Expenses..............................................70
SECTION 10.04. Amendments and Waivers................................71
SECTION 10.05. Successors and Assigns; Participations................72
SECTION 10.06. No Waiver; Cumulative Remedies........................74
SECTION 10.07. APPLICABLE LAW........................................75
SECTION 10.08. SUBMISSION TO JURISDICTION............................75
SECTION 10.09. Severability..........................................76
SECTION 10.10. Right of Setoff.......................................76
SECTION 10.11. Confidentiality.......................................76
SECTION 10.12. Provisions Regarding Syndication Agent and
iv
Documentation Agent....................77
SECTION 10.13. Headings.................................................77
SECTION 10.14. Construction.............................................77
SECTION 10.15. Counterparts.............................................77
SECTION 10.16. Special Provision with Respect to Dutch Pledge Agreement.77
SCHEDULES
Schedule I - Subsidiaries and Affiliates
Schedule II - Existing Liens
Schedule III - Existing Indebtedness
Schedule IV - Existing Guarantees
Schedule V - Credit Arrangements
Schedule VI - Existing Letters of Credit
Schedule 4.06(a) - Litigation
Schedule 4.08 - ERISA Violations
Schedule 7.16 - Written Arrangements with Affiliates
EXHIBITS
Exhibit A - Form of Revolving Credit Facility A Note
Exhibit B - Form of Revolving Credit Facility B Note
Exhibit C - Form of Swingline Note
Exhibit D - [RESERVED]
Exhibit E - Form of Guaranty
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Counsel (Cahill Gordon & Reindel)
Exhibit G-2 - Form of Opinion of Dutch Counsel (Nauta Dutilh)
Exhibit H - Form of U.S. Tax Compliance Certificate
Exhibit I-1 - Form of Company Pledge Agreement
Exhibit I-2 - Form of Guarantor Pledge Agreement
Exhibit I-3 - Form of Dutch Pledge Agreement for Hain Europe
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CREDIT AGREEMENT dated as of March 29, 2001, by and among THE HAIN
CELESTIAL GROUP, INC., a Delaware corporation (the "Company"), the LENDERS which
from time to time are parties to this Agreement (individually, a "Lender" and,
collectively, the "Lenders"), FLEET NATIONAL BANK, a national banking
association organized under the laws of the United States of America, as
Administrative Agent (the "Administrative Agent), SUNTRUST BANK, a Georgia
banking corporation, as Syndication Agent (the "Syndication Agent"), and HSBC
BANK USA, a New York banking corporation, as Documentation Agent (the
"Documentation Agent").
RECITALS
The Company has requested the Lenders to extend credit from time to
time and the Lenders are willing to extend such credit to the Company, subject
to the terms and conditions hereinafter set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions. As used herein, the following terms shall have the
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following meanings:
"Acceptable Acquisition" shall mean any acquisition (whether by merger
or otherwise) by the Company or any Subsidiary of the Company of more than 50%
of the outstanding capital stock, membership interests, partnership interests or
other similar ownership interests of a Person which is engaged in a line of
business similar to the business of the Company or such Subsidiary (or
reasonable extensions thereof) or the purchase of all or substantially all of
the assets owned by such Person; provided that (a) with respect to such Person
which is the subject of an acquisition, such acquisition has been (i) approved
by the board of directors or other appropriate governing body of such Person or
(ii) recommended for approval by such board of directors or governing body to
the shareholders, members, partners, or other owners of such Person, as required
under applicable law or by the certificate of incorporation and by-laws or other
organizational documents of such Person and subsequently approved by the
shareholders, members, partners, or other owners of such Person if such approval
is required under applicable law or by the certificate of incorporation and
by-laws or other organizational documents of such Person or (iii) otherwise
agreed by all shareholders, members, partners or other owners of such Person;
(b) no acquisition shall be an Acceptable Acquisition if a Default or Event of
Default shall have occurred and be continuing or would result after giving
effect to such acquisition; (c) any acquisition that would result in the Company
having a ratio of Consolidated Total Funded Debt to Consolidated EBITDA,
determined on a pro forma basis with respect to the most recently concluded four
fiscal quarters, of greater than 2.00:1.00, shall require the prior approval of
the Lenders; (d) no acquisition shall be an Acceptable Acquisition if the
business which is the subject of such acquisition has a negative EBITDA (on an
adjusted basis) for the most recently concluded four quarters, and (e) in the
case of a Non-Domestic Acquisition,
1
the business to be acquired shall be acquired by (i) the Company or a Domestic
Subsidiary, (ii) a First-Tier Subsidiary of the Company or a Domestic
Subsidiary, or (iii) a direct or indirect wholly- owned Subsidiary of a
First-Tier Subsidiary of a Domestic Subsidiary, provided that if such First-
Tier Subsidiary is a Non-Domestic Subsidiary, then 65% of the capital stock of
such First-Tier Subsidiary shall have been pledged to the Administrative Agent
for the benefit of the Lenders. For purposes of clause (d) hereof, EBITDA of any
subject of an acquisition may be adjusted only to reflect the pro forma impact
of the proposed acquisition and the elimination of prior non-recurring or
unusual items.
"Adjusted Libor Loans" shall mean Loans at such time as they are made
and/or being maintained at a rate of interest based upon Reserve Adjusted Libor.
"Administrative Agent" shall mean Fleet National Bank in its capacity
as Administrative Agent for the Lenders under this Agreement or its successor
Administrative Agent permitted pursuant to Section 9.08 hereof.
"Affiliate" shall mean, with respect to a specified Person, another
Person which, directly or indirectly, controls or is controlled by or is under
common control with such specified Person. For the purpose of this definition,
"control" of a Person shall mean the power, direct or indirect, to direct or
cause the direction of the management or policies of such Person whether through
the ownership of voting securities, by contract or otherwise; provided that, in
any event, any Person who owns directly or indirectly 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of the partnership or other
ownership interests of any Person (other than as a limited partner of such other
Person) will be deemed to control such corporation or other Person.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent, and each is individually an
"Agent."
"Aggregate Letters of Credit Outstandings" shall mean, on the date of
determination, the sum of (a) the aggregate maximum stated amount at such time
which is available or available in the future to be drawn under all outstanding
Letters of Credit and (b) the aggregate amount of all payments on account of
drawings under Letters of Credit made by the Issuing Lender on behalf of the
Lenders under any Letter of Credit that has not been reimbursed by the Company.
"Aggregate Outstandings" shall mean, on the date of determination, the
sum of (a) the Aggregate Revolving Credit Facility A Outstandings and (b) the
Aggregate Revolving Credit Facility B Outstandings.
"Aggregate Revolving Credit Facility A Outstandings" shall mean, on the
date of determination, the sum of (a) the Aggregate Letters of Credit
Outstandings at such time, (b) the aggregate outstanding principal amount of all
Revolving Credit Facility A Loans at such time and (c) the aggregate outstanding
principal amount of all Swingline Loans at such time.
2
"Aggregate Revolving Credit Facility B Outstandings" shall mean on the
date of determination, the aggregate outstanding principal amount of all
Revolving Credit Facility B Loans at such time.
"Agreement" shall mean this Credit Agreement dated as of March 29,
2001, as it may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
"Annual SEC Report" means each Annual Report on Form 10-K filed by the
Company with the SEC.
"Assignment and Acceptance Agreement" shall mean an Assignment and
Acceptance Agreement entered into by a Lender and an assignee and accepted by
the Administrative Agent and, so long as no Event of Default shall have occurred
and be continuing, the Company (such acceptance by the Company not to be
unreasonably withheld or delayed), in the form attached hereto as Exhibit F or
any other form approved by the Administrative Agent.
"Auditors" shall have the meaning set forth in Section 6.03(a) hereof.
"Available Revolving Credit Commitment" shall mean, on the date of
determination, the Total Revolving Credit Commitment, reduced by the then
Aggregate Outstandings.
"Base Rate" shall mean, for any day, the higher of: (a) 0.50% per annum
above the Federal Funds Rate and (b) the Prime Rate, in each case as then in
effect.
"Base Rate Loans" shall mean Loans at such time as they are being made
and/or maintained at a rate of interest based upon the Base Rate.
"Borrowing Date" shall mean, with respect to any Loan, the date
specified in any notice given pursuant to Section 2.01 on which such Loan is
requested by the Company.
"Business Day" shall mean (a) any day not a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close, and (b) as it relates to any payment, determination, funding or
notice to be made or given in connection with any Adjusted Libor Loan, any day
specified in clause (a) on which trading is carried on by and between banks in
Dollar deposits in the London interbank eurodollar market.
"Capital Lease" shall mean, with respect to any Person, as of the date
of determination any lease the obligations of which are required to be
capitalized on the balance sheet of such Person in accordance with Generally
Accepted Accounting Principles applied on a consistent basis.
"Cash Collateral" shall mean a deposit by the Company made in
immediately available funds to a cash collateral account at the Administrative
Agent and the taking of all action required to
3
provide the Administrative Agent, for the ratable benefit of the Lenders, a
first priority perfected security interest in such deposit.
"Celestial" shall mean Celestial Seasonings, Inc., a Delaware corporation.
"Celestial EDRB" means the Colorado Housing and Finance Authority Variable
Rate Demand/Fixed Rate Economic Development Revenue Bonds (Celestial Seasonings,
Inc. Project) Series 1989.
"Change of Control" shall mean any event which results in (i) any
Person, or two or more Persons acting in concert, acquiring beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of securities of the Company (or other securities convertible into such
securities) representing 50% or more of the combined voting power of all
securities of the Company entitled to vote in the election of directors; or (ii)
the individuals who, as of the date hereof, constitute the Board of Directors of
the Company, together with those who first become directors subsequent to such
date, provided the recommendation, election or nomination for election to the
Board of Directors of such subsequent directors was approved by a vote of at
least a majority of the directors then still in office who were either directors
as of the date hereof or whose recommendation, election or nomination for
election was previously so approved, ceasing for any reason to constitute a
majority of the members of the Board of Directors of the Company.
"Chief Financial Officer" shall mean the Chief Financial Officer of the
Company or, in the event no such officership exists, the Vice President of
Finance of the Company.
"Closing Date" shall mean March 29, 2001.
"Code" shall mean the Internal Revenue Code of 1986, and the
regulations promulgated thereunder, each as amended from time to time.
"Commercial Letter of Credit" shall mean any Sight Letter of Credit
issued for the account of a Person.
"Commitment Proportion" shall mean, with respect to each Lender at the
time of determination, the ratio, expressed as a percentage, (a) which such
Lender's Revolving Credit Commitments bear to the Total Commitment or (b) if the
Revolving Credit Commitments have expired or have been terminated, which such
Lender's Loans bear to the principal balance of the Loans then outstanding, at
such time.
"Commitments" shall mean, collectively, the Revolving Credit
Commitments and the Swingline Commitments.
"Company" shall have the meaning set forth in the preamble hereto.
4
"Consolidated EBITDA" shall mean, for the Company and its Subsidiaries
for any period, the Consolidated Net Income (Net Loss) of the Company and its
Subsidiaries for such period, plus the sum, without duplication, of (a)
Consolidated Interest Expense, (b) depreciation and amortization expenses or
charges, (c) all income taxes to any government or governmental instrumentality
expensed on the Company's or its Subsidiaries' books (whether paid or accrued),
(d) reasonable and customary acquisition or merger charges, non-cash and
non-recurring restructuring charges and non- cash and non-recurring impairment
of assets write-offs (provided that the portion of the sum of the items referred
to in this clause (d) that exceeds 25% of Consolidated EBITDA shall not be
included for purposes of this definition), and (e) cumulative non-cash change in
accounting effects or non- cash extraordinary items as determined in accordance
with Generally Accepted Accounting Principles minus the sum of (a) all
extraordinary or unusual gains, and (b) all interest income, determined on a
consolidated basis for the Company and its Subsidiaries in accordance with
Generally Accepted Accounting Principles applied on a consistent basis. All of
the foregoing categories shall be calculated with respect to the Company and its
Subsidiaries on a consolidated basis and shall be calculated (without
duplication) over the four fiscal quarters immediately preceding the date of
calculation thereof.
"Consolidated Interest Expense" shall mean, on the date of
determination, the sum of all interest expense on Indebtedness of the Company
and its Subsidiaries on a consolidated basis, determined in accordance with
Generally Accepted Accounting Principles applied on a consistent basis.
Consolidated Interest Expense shall be calculated with respect to the Company
and its Subsidiaries on a consolidated basis and shall be calculated (without
duplication) over the four fiscal quarters immediately preceding the date of
calculation thereof.
"Consolidated Maintenance Capital Expenditures" shall mean, on the date
of determination, the sum of expenditures by the Company and its Subsidiaries,
on a consolidated basis, by the expenditure of cash or the incurrence of
Indebtedness, with respect to the replacement, repair, maintenance and upkeep of
any fixed or capital assets (to the extent capitalized on the financial
statements of the Company), in accordance with Generally Accepted Accounting
Principles applied on a consistent basis. Consolidated Maintenance Capital
Expenditures shall be calculated (without duplication) over the four fiscal
quarters immediately preceding the date of calculation thereof.
"Consolidated Net Income (Net Loss)" shall mean, for any period, the
net income (or net loss) of the Company and its Subsidiaries on a consolidated
basis for such period determined in accordance with Generally Accepted
Accounting Principles applied on a consistent basis; provided that there shall
be excluded therefrom the income (or deficit) of any Person (other than a
Subsidiary that would be included in the consolidated financial statements of
the Company and its Subsidiaries in accordance with Generally Accepted
Accounting Principles) in which the Company or any of its Subsidiaries has an
ownership interest (e.g. a joint venture), except to the extent that any such
income has been actually received by the Company or any of its Subsidiaries in
the form of dividends or similar distributions.
5
"Consolidated Tangible Assets" shall mean, on the date of
determination, total assets less goodwill and other intangible assets as
determined in accordance with Generally Accepted Accounting Principles applied
on a consistent basis.
"Consolidated Tangible Net Worth" shall mean, on the date of
determination (a) the total Consolidated Tangible Assets of the Company and its
Subsidiaries less (b) the total consolidated liabilities of the Company and its
Subsidiaries. For purposes of calculating compliance with the covenant set forth
in Section 7.13(c) hereof only, goodwill and other intangible assets associated
with an Acceptable Acquisition shall be treated as a tangible asset following
the closing of such Acceptable Acquisition.
"Consolidated Total Funded Debt" shall mean, on the date of
determination, the sum of all Indebtedness of the Company and its Subsidiaries,
on a consolidated basis, for borrowed money including the current portion
thereof and including obligations with respect to Capital Leases, determined in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis.
"Current SEC Report" means the most recently filed Annual SEC Report or
Quarterly SEC Report.
"Default" shall mean any condition or event which upon notice, lapse of
time or both would constitute an Event of Default.
"Dividends" shall mean, for any period, the sum of all dividends and
distributions made by the Company determined in accordance with Generally
Accepted Accounting Principles applied on a consistent basis.
"Dollar" and the symbol "$" shall mean lawful currency of the United
States of America.
"Documentation Agent" shall mean HSBC Bank USA in its capacity as
Documentation Agent for the Lenders under this Agreement or its successor
Documentation Agent permitted pursuant to Section 9.08 hereof.
"Domestic Subsidiary" shall mean any Subsidiary of the Company
organized under the laws of any state of the United States of America.
"Dutch Pledge Agreement" means that certain Deed of Pledge governed
under the laws of the Netherlands, establishing a first priority right of pledge
by the Company of 65% of the capital stock or other equity interests of Hain
Europe or any Deed of Pledge executed following the date of this Agreement in
accordance with the provisions of Section 7.08 hereof with respect to 65% of the
capital stock or other equity interests in any future Non-Domestic First-Tier
Subsidiary of either the Company or a Domestic Subsidiary which becomes the
parent of Hain Europe, in each case,
6
substantially in the form of Exhibit I-3 hereto to be executed by the Company,
or a Domestic Subsidiary, as applicable, in favor of the Administrative Agent as
agent for the Lenders.
"EBITDA" shall mean, for any Person for any period, Net Income (Net
Loss) of such Person for such period, plus the sum, without duplication, of (a)
Interest Expense, (b) depreciation and amortization expenses or charges, and (c)
all income taxes to any government or governmental instrumentality expensed on
such Person's books (whether paid or accrued) minus the sum of (a) all
extraordinary or unusual gains, and (b) all interest income, determined in
accordance with Generally Accepted Accounting Principles applied on a consistent
basis; provided that, if such Person has Subsidiaries, all of the foregoing
categories shall be determined for such Person and its Subsidiaries on a
consolidated basis in accordance with Generally Accepted Accounting Principles,
applied on a consistent basis. All of the foregoing categories shall be
calculated with respect to such Person and shall be calculated (without
duplication) over the four fiscal quarters immediately preceding the date of
calculation thereof.
"Eligible Investments" shall mean (a) direct obligations of the United
States of America or any governmental agency thereof which are fully guaranteed
by the United States of America, provided that such obligations mature within
one year from the date of acquisition thereof; or (b) Dollar denominated
certificates of time deposit maturing within one year issued by any bank
organized and existing under the laws of the United States or any state thereof
and having aggregate capital and surplus in excess of $1,000,000,000; or (c)
money market mutual funds having assets in excess of $2,500,000,000; or (d)
commercial paper rated not less than P-1 or A-1 or their equivalent by Moody's
Investors Service, Inc. or Standard & Poor's Ratings Group, respectively; or (e)
tax exempt securities of a U.S. issuer rated A or better by Standard and Poor's
Ratings Group or rated A-2 or better by Moody's Investors Service, Inc.; or (f)
common stock issued by any corporation under the federal laws of the United
States of America or any state thereof which stock is traded on any U.S.
national securities exchange or quoted on NASDAQ, provided that, (i) at the time
of purchase such common stock has a minimum share price of at least $5.00 per
share, (ii) if any Loans are outstanding at the time of purchase, such
corporation is engaged in a similar line of business as the Company and its
Subsidiaries, and (iii) the aggregate of all such purchases, determined in each
instance at the time of purchase, of the common stock held by the Company and
its Subsidiaries shall not exceed $20,000,000.
"Environmental Law" shall mean any applicable law, ordinance, rule,
regulation, or policy having the force of law of any Governmental Authority
relating to pollution or protection of the environment or to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901, et seq.) and the rules and regulations
promulgated pursuant thereto.
7
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Company or any Affiliate of the Company would be
deemed to be a member of the same "controlled group" within the meaning of
Section 414(b), (c), (m) or (o) of the Code.
"Eurocurrency Reserve Requirement" shall mean a fraction (expressed as
a decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and emergency
reserves, under any regulations of the Board of Governors of the Federal Reserve
System or any other governmental authority having jurisdiction with respect
thereto) as from time to time in effect, dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "eurocurrency
liabilities" in Regulation D) maintained by any Lender.
"Event of Default" shall have the meaning set forth in Article VIII.
"Excluded Subsidiary" shall mean any Subsidiary of the Company which as
of the last day of the then most recent fiscal quarter ended has total assets of
less than $10,000 and total revenues for the then immediately preceding four
fiscal quarters of less than $10,000.
"Existing Indebtedness" shall mean the Indebtedness of the Company on
the Closing Date arising pursuant to (i) that certain credit agreement by and
between the Company and Fleet National Bank, dated as of July 20, 2000, (ii)
that certain credit agreement dated November 2, 1998, as amended, among the
Company, Celestial and KeyBank relating to the Celestial EDRB and (iii) the IBJ
Standby Letter of Credit.
"Existing Letters of Credit" shall mean, collectively, the letters of
credit issued by Fleet National Bank for the account of the Company or any
Guarantor prior to the date hereof as set forth on Schedule VI and the KeyBank
Letter of Credit.
"Federal Funds Rate" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal fund brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal fund brokers of recognized standing selected by the
Administrative Agent.
"First-Tier Subsidiary" shall mean any Subsidiary of any Person which
Subsidiary is directly owned by such Person .
"Fruit Chips" means Fruit Chips B.V., a corporation organized under the
laws of The Netherlands.
8
"Fruit Chips Spanish Joint Venture" means that certain preliminary
joint venture agreement dated November 16, 2000 between Galletas Siro, S.A.
("Galletas") and Fruit Chips relating to the manufacturing and marketing of
vacuum-fried potatoes and vegetables in Europe whereby Galletas and Fruit Chips
shall each make a 50% investment in a company to be formed by Fruit Chips or a
wholly-owned Subsidiary of Fruit Chips and Galletas in accordance with the terms
of such joint venture agreement.
"Generally Accepted Accounting Principles" shall mean those generally
accepted accounting principles in the United States of America, as in effect
from time to time.
"Governmental Authority" shall mean any nation or government, any
state, province, city or municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial, administrative
or regulatory agency, department, authority, instrumentality, commission, board
or similar body, whether federal, state, provincial, territorial, local or
foreign.
"Guarantors" shall mean, collectively, Celestial, Arrowhead Mills, Inc., a
Delaware corporation, Kineret Foods Corporation, a New York corporation,
Westbrae Natural, Inc., a Delaware corporation, Hain Pure Food Co., Inc., a
California corporation, Natural Nutrition Group, Inc., a Delaware corporation,
Little Bear Organic Foods, Inc., a California corporation, Westbrae Natural
Foods, Inc., a California corporation, Health Valley Company, a Delaware
corporation, AMI Operating, Inc., a Texas corporation, DeBoles Nutritional
Foods, Inc., a New York corporation, Dana Alexander, Inc., a New York
corporation, Mountain Chai Company, a Colorado corporation, and each other
Domestic Subsidiary of the Company who, from time to time hereafter, is required
to execute a Guaranty in accordance with Section 6.12 hereof; provided that such
Domestic Subsidiary's status as a Guarantor shall be effective as of the date of
such execution.
"Guaranty" shall mean the Guaranty in the form attached hereto as
Exhibit E to be executed and delivered by each Guarantor on the Closing Date and
thereafter by any Domestic Subsidiaries of the Company required to deliver a
Guaranty pursuant to Section 6.12 hereof, as the same may hereafter be amended,
restated, supplemented or otherwise modified from time to time.
"Hain Europe" means Hain Celestial Europe B.V., a corporation
incorporated under the laws of The Netherlands, with its registered office at
Amsterdam, The Netherlands, and a wholly-owned Non-Domestic Subsidiary of the
Company.
"Hazardous Materials" shall mean any explosives, radioactive materials,
or other materials, wastes, substances, or chemicals regulated as toxic or
hazardous or as a pollutant, contaminant or waste under any applicable
Environmental Law.
"Hedging Agreement" shall mean any interest rate swap, collar, cap,
floor or forward rate agreement or other agreement between the Company and the
Administrative Agent regarding the hedging of interest rate risk exposure
executed in connection with hedging the interest rate exposure of the Company
and any confirming letter executed pursuant to such agreement, all as amended,
supplemented, restated or otherwise modified from time to time.
9
"IBJ Standby Letter of Credit" means that certain standby letter of
credit issued by IBJ Whitehall Bank & Trust ("IBJW") under a credit agreement
dated May 18, 1999, as amended, among the Company, IBJW and the other parties
thereto relating to the Celestial EDRB.
"Indebtedness" shall mean, without duplication, as to any Person or
Persons, (a) indebtedness for borrowed money; (b) indebtedness for the deferred
purchase price of property or services; (c) indebtedness evidenced by bonds,
debentures, notes or other similar instruments; (d) obligations and liabilities
secured by a Lien upon property owned by such Person, whether or not owing by
such Person and even though such Person has not assumed or become liable for the
payment thereof; (e) obligations or liabilities created or arising under any
conditional sales contract or other title retention agreement with respect to
property used and/or acquired by such Person; (f) the capitalized portion of
obligations of such Person as lessee under Capital Leases; (g) net liabilities
of such Person under Hedging Agreements and foreign currency exchange
agreements, as calculated in accordance with accepted practice; (h) all
obligations, contingent or otherwise, of such Person as an account party or
applicant in respect of letters of credit created for the account or upon the
application of such Person; (i) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any equity
interest in any Person; (j) obligations and liabilities of the types described
in clause (a) through (i) above, directly or indirectly, guaranteed by such
Person; and (k) all liabilities which would be reflected on a balance sheet of
such Person, prepared in accordance with Generally Accepted Accounting
Principles.
"Intellectual Property" shall mean all of the trademarks (whether or
not registered) and trademark registrations and applications, patent and patent
applications, copyrights and copyright applications, service marks, service mark
registrations and applications, trade dress, and trade and product names owned
or licensed by the Company and its Subsidiaries.
"Interest Expense" shall mean, on the date of determination, the sum of
all interest expense on Indebtedness of any Person, determined in accordance
with Generally Accepted Accounting Principles applied on a consistent basis.
Interest Expense shall be calculated with respect to such Person (without
duplication) over the four fiscal quarters immediately preceding the date of
calculation thereof.
"Interest Payment Date" shall mean (a) as to any Base Rate Loan, the
last day of each calendar month during the term hereof; (b) as to any Adjusted
Libor Loan, the last day of the Interest Period applicable thereto; and (c) as
to any Loan, on the date such Loan is paid in full or in part; provided,
however, that if any Interest Period for an Adjusted Libor Loan exceeds three
months, the date that falls three months after the beginning of such Interest
Period shall also be an Interest Payment Date.
10
"Interest Period" shall mean with respect to any Adjusted Libor Loan:
(a) initially, the period commencing on the date such Adjusted Libor
Loan is made and ending one, two, three or six months thereafter, as selected by
the Company in its notice of borrowing or in its notice of conversion from a
Base Rate Loan, in each case, in accordance with the terms of Articles II and
III hereof; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Adjusted Libor Loan and ending one,
two, three or six months thereafter, as selected by the Company by irrevocable
written notice to the Administrative Agent not later than 11:00 a.m. New York,
New York time three Business Days prior to the last day of the then current
Interest Period with respect to such Adjusted Libor Loan and the Administrative
Agent shall promptly notify each of the Lenders of such notice; provided,
however, that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) if the Company shall fail to give notice as
provided in clause (b) above, the Company shall be deemed to
have requested conversion of the affected Adjusted Libor Loan
to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no more than six (6) Interest Periods may exist at any one time; and
(v) the Company shall select Interest Periods so as
not to require a payment or prepayment of any Adjusted Libor
Loan during an Interest Period for such Adjusted Libor Loan.
11
"Interest Rate Margin" shall mean (a) with respect to each Adjusted
Libor Loan, the percentage set forth below under the heading "LIBOR Margin"
opposite the applicable ratio and (b) with respect to each Base Rate Loan, the
percentage set forth below under the heading "Base Rate Margin" opposite the
applicable ratio.
Consolidated Total Funded Debt LIBOR Margin Base Rate Margin
to Consolidated EBITDA (360 Day Basis) (360 Day Basis)
----------------------------------- --------------- ----------------
Greater than or equal to 2.50:1.00 1.875% .875%
Greater than or equal to 2.00:1.00
and less than 2.50:1.00 1.625% .625%
Greater than or equal to 1.50:1.00
and less than 2.00:1.00 1.375% .375%
Greater than or equal to 1.00:1.00
and less than 1.50:1.00 1.125% .125%
Less than 1.00:1.00 1.00% -0-%
If the Aggregate Outstandings hereunder exceed thirty-three percent (33%) of the
Total Commitments hereunder at any time, then for so long as the Aggregate
Outstandings exceed such amount the Interest Rate Margins set forth above shall
be increased by 12.5 basis points.
Notwithstanding the foregoing, during the period commencing on the Closing Date
and ending on the tenth Business Day following the date of delivery of the
financial statements to the Administrative Agent for the fiscal quarter ended
March 31, 2001 (a) the Interest Rate Margin with respect to each Adjusted Libor
Loan shall be 1.00% per annum, and (b) the Interest Rate Margin with respect to
each Base Rate Loan shall be 0.00% per annum. The Interest Rate Margin will be
set or reset quarterly with respect to each Loan on the date which is ten
Business Days following the date of receipt by the Administrative Agent of the
financial statements referred to in Section 6.03(a) or Section 6.03(b) hereof,
as applicable, together with a certificate of the Chief Financial Officer of the
Company certifying the ratio of Consolidated Total Funded Debt to Consolidated
EBITDA and setting forth the calculation thereof in detail; provided, however,
if any such financial statement and certificate are not received by the
Administrative Agent within the time period required pursuant to Section 6.03(a)
or Section 6.03(b) hereof, as the case may be, the Interest Rate Margin will be
set or reset, unless the rate of interest specified in Section 3.01(c) hereof is
in effect solely due to the failure of the Company to comply with Section
6.03(a) or 6.03(b) hereof, to a rate determined based on a ratio of Consolidated
Total Funded Debt to Consolidated EBITDA of greater than or equal to 2.50:1.00
from the date such financial statement and certificate were due until the date
which is ten Business Days following the receipt by the Administrative Agent of
such financial statement and certificate, and provided, further, that the
Lenders shall not in any way be deemed to have waived any Default or Event of
Default, including, without limitation, an Event of Default resulting from
12
the failure of the Company to comply with Section 7.13 of this Agreement, or any
rights or remedies hereunder or under any other Loan Document in connection with
the foregoing proviso. During the occurrence and continuance of an Event of
Default, no downward adjustment, and only upward adjustments, shall be made to
the Interest Rate Margin.
"IP Subsidiary" means any direct or indirect wholly-owned Non-Domestic
Subsidiary formed in accordance with Section 6.12 hereof for the purpose of
owning certain Intellectual Property.
"Issuing Lender" shall mean the Administrative Agent, in its capacity
as the issuer of Letters of Credit hereunder or its successor Issuing Lender
permitted pursuant to Section 2.03(e) hereof, except that, with respect to the
KeyBank Letter of Credit, the Issuing Lender shall mean KeyBank, in its capacity
as the issuer of the KeyBank Letter of Credit.
"KeyBank" shall mean KeyBank National Association, a national banking
association.
"KeyBank Letter of Credit" shall mean that certain letter of credit
issued by KeyBank under a credit agreement dated November 2, 1998, as amended,
among the Company, Celestial and KeyBank relating to the Celestial EDRB which,
as of December 31, 2000, had an outstanding balance of $5,817,124.24, together
with any replacement Letter of Credit issued by KeyBank for the KeyBank Letter
of Credit.
"KeyBank Payment Office" shall mean KeyBank's office located at
International Division, 700 Fifth Avenue, mailcode WA-31-10-5360, 53rd Floor,
Seattle, Washington 98104 or such other office as KeyBank may designate from
time to time in writing.
"Lead Arranger" shall mean Fleet Securities, Inc.
"Lenders" shall have the meaning set forth in the preamble hereto and
shall include the Swingline Lender and the Issuing Lender.
"Lending Office" shall mean, for each Lender, the office specified
under such Lender's name on the signature pages hereof with respect to each Type
of Loan, or such other office as such Lender may designate in writing from time
to time to the Company and the Administrative Agent with respect to such Type of
Loan.
"Letter of Credit" shall mean any letter of credit issued by the
Issuing Lender for the account of the Company pursuant to the terms of this
Agreement.
"Lien" shall mean any mortgage, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any Capital Lease and any financing lease having
substantially the same economic effect as any of the foregoing).
13
"Loans" shall mean, collectively, the Revolving Credit Loans and the
Swingline Loans.
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
the Guaranties, the Pledge Agreements, any Hedging Agreement (but only to the
extent that such Hedging Agreements relate to the Company's hedging of interest
rate exposure under this Agreement) and each other agreement executed in
connection with the transactions contemplated hereby or thereby, as each of the
same may hereafter be amended, restated, supplemented or otherwise modified from
time to time.
"Material Adverse Effect" shall mean a material adverse effect upon (a)
the business, operations, property or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, or (b) the ability of the Company
or any Guarantor to perform any of its obligations under any Loan Document to
which it is a party.
"Net Direct Contributions" shall mean, with respect to each brand,
gross revenues less direct cost of sales and direct advertising and promotional
costs.
"Net Income (Net Loss)" shall mean, for any period, the net income (or
net loss) of any Person for such period determined in accordance with Generally
Accepted Accounting Principles applied on a consistent basis; provided that
there shall be excluded therefrom the income (or deficit) of any other Person
(other than a Subsidiary) in which such Person or any Subsidiary of such Person
has an ownership interest, except to the extent that any such income has been
actually received by such Person or such Subsidiary in the form of dividends or
similar distributions
"Non-Domestic Acquisition" shall mean the acquisition by the Company
or any Subsidiary of the Company of more than 50% of the capital stock,
membership interests, partnership interests or other similar ownership interests
of a Person not organized under the laws of the United States or any state
thereof or the purchase of all or substantially all of the assets owned by such
Person.
"Non-Domestic Subsidiary" shall mean any Subsidiary of the Company not
organized under the laws of any state of the United States of America.
"Non-Excluded Taxes" shall have the meaning set forth in Section 3.10
hereof.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Obligations" shall mean all obligations, liabilities and indebtedness
of the Company and any of its Subsidiaries to the Lenders, the Issuing Lender
and the Administrative Agent, whether now existing or hereafter created,
absolute or contingent, direct or indirect, due or not, whether created directly
or acquired by assignment or otherwise, arising under this Agreement, the Notes
or any other Loan Document including, without limitation, all obligations,
liabilities and indebtedness of the Company with respect to the principal of and
interest on the Loans (including any interest that accrues after the filing of
any petition in bankruptcy or the commencement of any insolvency, reorganization
or like proceeding relating to the Company, whether or not a claim for
post-filing or
14
post-petition interest is allowed in such proceeding), reimbursement of Letters
of Credit, obligations under any Hedging Agreement, and all fees, costs,
expenses and indemnity obligations of the Company and any of its Subsidiaries
hereunder or under any other Loan Document (including all fees and expenses of
the Administrative Agent and any Lender incurred pursuant to this Agreement or
any other Loan Document).
"Participant" shall have the meaning set forth in Section 10.05 hereof.
"Payment Office" shall mean the Administrative Agent's office located
at 300 Broad Hollow Road, Melville, New York 11747 or such other office as the
Administrative Agent may designate from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Liens" shall mean the Liens specified in clauses (a) through
(j) of Section 7.02 hereof.
"Person" shall mean any natural person, corporation, limited liability
company, limited liability partnership, business trust, joint venture,
association, company, partnership, unincorporated trade or business enterprise
or Governmental Authority.
"Plan" shall mean any multi-employer or single-employer plan defined in
Section 4001 of ERISA, which covers, or at any time during the five calendar
years preceding the date of this Agreement covered, employees of the Company,
any Guarantor or an ERISA Affiliate on account of such employees' employment by
the Company, any Guarantor or an ERISA Affiliate.
"Pledge Agreement" shall mean (a) with respect to the Company, any
Pledge Agreement entered into in accordance with Section 6.12 hereof relating to
the capital stock or other equity interests of a Non-Domestic Subsidiary which
is a First-Tier Subsidiary of the Company substantially in the form attached
hereto as Exhibit I-1, (b) with respect to each Domestic Subsidiary, as
applicable, any Pledge Agreement entered into in accordance with Section 6.12
hereof relating to the capital stock or other equity interests of a Non-Domestic
Subsidiary which is a First-Tier Subsidiary of a Domestic Subsidiary of the
Company substantially in the form attached hereto as Exhibit I-2, and (c) with
respect to Hain Europe, the Dutch Pledge Agreement substantially in the form
attached hereto as Exhibit I-3, and (with respect to subclause (c) only) to be
executed and delivered on the Closing Date pursuant to Section 5.01 hereof, as
each of the same may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
"Prime Rate" shall mean the variable per annum rate of interest
announced by the Person which is the Administrative Agent from time to time as
its prime rate. Each change in the Prime Rate shall be effective on the date
such change is announced to become effective without notice or demand of any
kind. The Prime Rate is a reference rate and does not necessarily represent the
lowest
15
or best rate of interest being charged by the Person which is the Administrative
Agent to any customer.
"Purchasing Lender" shall have the meaning set forth in Section
10.05(c) hereof.
"Quarterly SEC Report" means each quarterly report on Form 10-Q filed
by the Company with the SEC.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30 day notice requirement has not
been waived by the PBGC.
"Required Lenders" shall mean Lenders owed at least fifty-one percent
(51%) of the sum of the aggregate unpaid principal amount of the Revolving
Credit Loans or, if no Revolving Credit Loans are outstanding, Lenders having at
least fifty-one percent (51%) of the Total Commitments.
"Reserve Adjusted Libor" shall mean, with respect to the Interest
Period pertaining to an Adjusted Libor Loan, a rate per annum equal to the
product (rounded upwards to the next higher 1/16 of one percent) of (a) the
annual rate of interest at which Dollar deposits of an amount equal to the
amount of the portion of the Adjusted Libor Loan allocable to the entity which
is the Administrative Agent and for a period of time equal to the Interest
Period applicable thereto which appears on the Telerate Page 3750 as of 11:00
a.m. (London time) on the day that is two Business Days prior to the
commencement of such Interest Period, multiplied by (b) the Eurocurrency Reserve
Requirement.
If the rate described in clause (a) above does not appear on the
Telerate System on any applicable interest determination date, then the rate
described in clause (a) shall be the rate (rounded upward, if necessary, to the
nearest one hundred-thousandth of a percentage point) determined on the basis of
the offered rates for deposits in Dollars for a period of time comparable to
such applicable Interest Period which are offered by four major banks selected
by the Administrative Agent in the London interbank market at approximately
11:00 a.m. (London time) on the day that is two Business Days prior to the
commencement of such Interest Period. The principal London office of each of the
four major London banks will be requested to provide a quotation of its Dollar
deposit offered rate. If at least two such quotations are provided, the rate
described in clause (a) for that date will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate
described in clause (a) for that date will be determined on the basis of the
rates quoted for loans in U.S. dollars to leading European banks for a period of
time comparable to such Interest Period offered by major banks in New York City
at approximately 11:00 a.m. New York City time, on the day that is two Business
Days prior to the commencement of such Interest Period. In the event that the
Administrative Agent is unable to obtain any such quotation as provided above,
it will be deemed that Reserve Adjusted Libor for an Adjusted Libor Loan cannot
be determined.
16
"Revolving Credit Commitments" shall mean, collectively, the Revolving
Credit Facility A Commitments and the Revolving Credit Facility B Commitments.
"Revolving Credit Facility A" shall mean the Revolving Credit Facility
to be made available to the Company pursuant to Section 2.01 hereof.
"Revolving Credit Facility A Commitment" shall mean, with respect to
each Lender, the obligation of such Lender to make Revolving Credit Facility A
Loans to the Company and to acquire participations in Letters of Credit in an
aggregate amount not to exceed the amount set forth opposite such Lender's name
on the signature pages hereof under the caption Revolving Credit Facility A
Commitment, as such amounts may be adjusted in accordance with the terms of this
Agreement.
"Revolving Credit Facility A Commitment Period" shall mean the period
from and including the Closing Date to, but not including, the Revolving Credit
Facility A Commitment Termination Date or such earlier date as the Revolving
Credit Facility A Commitments shall terminate as provided herein.
"Revolving Credit Facility A Commitment Termination Date" shall mean
March 29, 2005.
"Revolving Credit Facility A Loans" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Facility A Notes" shall have the meaning set forth in
Section 2.02 hereof.
"Revolving Credit Facility B" shall mean the Revolving Credit Facility
to be made available to the Company pursuant to Section 2.05 hereof.
"Revolving Credit Facility B Commitment" shall mean, with respect to
each Lender, the obligation of such Lender to make Revolving Credit Facility B
Loans to the Company in an aggregate amount not to exceed the amount set forth
opposite such Lender's name on the signature pages hereof under the caption
Revolving Credit Facility B Commitment, as such amounts may be adjusted in
accordance with the terms of this Agreement.
"Revolving Credit Facility B Commitment Period" shall mean the period
from and including the Closing Date to, but not including, the Revolving Credit
Facility B Commitment Termination Date or such earlier date as the Revolving
Credit Facility B Commitments shall terminate as provided herein.
"Revolving Credit Facility B Commitment Termination Date" shall mean
March 28, 2002.
"Revolving Credit Facility B Loans" shall have the meaning set forth in
Section 2.05(a) hereof.
"Revolving Credit Facility B Notes" shall have the meaning set forth in
Section 2.06 hereof.
17
"Revolving Credit Loans" shall mean, collectively, the Revolving Credit
Facility A Loans and the Revolving Credit Facility B Loans.
"Revolving Credit Notes" shall mean, collectively, the Revolving Credit
Facility A Notes and the Revolving Credit Facility B Notes.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SEC Reports" shall mean the most recent Annual SEC Report filed by the
Company with the SEC and each Quarterly SEC Report filed by the Company with the
SEC thereafter.
"Second-Tier Subsidiary" shall mean any Subsidiary of any Person which
Subsidiary is directly owned by a First-Tier Subsidiary of such Person.
"Sight Letter of Credit" shall mean a Letter of Credit wherein a draft
is drawn at sight (i.e. drawn payable upon presentment).
"Solvent" shall mean with respect to any Person as of the date of
determination thereof that (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise," as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required on its debts as such debts become absolute
and matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature in each case after giving effect to
any right of indemnification and contribution of such Person from or to any
Affiliate.
"Standby LC Disbursement" shall mean a payment made by the Issuing
Lender pursuant to a Standby Letter of Credit.
"Standby LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Standby Letters of Credit at such
time, plus (b) the aggregate amount of all Standby LC Disbursements that have
not yet been reimbursed by or on behalf of the Company at such time.
"Standby LC Margin" shall mean the percentage set forth below opposite
the applicable ratio:
Consolidated Total Funded Standby LC Margin
Debt to Consolidated EBITDA (360 Day Basis)
---------------------------- ----------------
Greater than or equal to 2.50:1.00 1.875%
18
Greater than or equal to 2.00:1.00 and less
than 2.50:1.00 1.625%
Greater than or equal to 1.50:1.00 and less
than 2.00:1.00 1.375%
Greater than or equal to 1.00:1.00 and less
than 1.50:1.00 1.125%
Less than 1.00:1.00 1.00%
Notwithstanding the foregoing, during the period commencing on the Closing Date
and ending on the tenth Business Day following the date of delivery of the
financial statements to the Administrative Agent for the fiscal year ended March
31, 2001, the Standby LC Margin shall be 1.00% per annum. The Standby LC Margin
will be set or reset quarterly on the date which is ten Business Days following
the date of receipt by the Administrative Agent of the financial statements
referred to in Section 6.03(a) or Section 6.03(b) hereof, as applicable,
together with a certificate of the Chief Financial Officer of the Company
certifying the ratio of Consolidated Total Funded Debt to Consolidated EBITDA
and setting forth the calculation thereof in detail; provided, however, if any
such financial statement and certificate are not received by the Administrative
Agent within the time period required pursuant to Section 6.03(a) or Section
6.03(b) hereof, as the case may be, the Standby LC Margin will be set or reset,
unless the rate of interest specified in Section 3.01(c) hereof is in effect
solely due to the failure of the Company to comply with Section 6.03(a) or
6.03(b) hereof, based on a ratio of Consolidated Total Funded Debt to
Consolidated EBITDA of greater than or equal to 2.50:1.00 from the date such
financial statement and certificate were due until the date which is ten
Business Days following the receipt by the Administrative Agent of such
financial statement and certificate, and provided, further, that the Lenders
shall not in any way be deemed to have waived any Default or Event of Default,
including, without limitation, an Event of Default resulting from the failure of
the Company to comply with Section 7.13 of this Agreement, or any rights or
remedies hereunder or under any other Loan Document in connection with the
foregoing proviso. During the occurrence and continuance of an Event of Default,
no downward adjustment, and only upward adjustments, shall be made to the
Standby LC Margin.
"Standby Letter of Credit" shall mean any letter of credit issued to
support an obligation of a Person and which may be drawn on only upon the
failure of such Person to perform such obligation or other contingency.
"Subordinated Debt" or "Subordinated Indebtedness" shall mean all debt
which is subordinated in right of payment to the prior final payment in full of
the obligations of the Company and/or of its Subsidiaries to the Lenders
hereunder and under any other Loan Document, provided that the terms of such
subordination are satisfactory to and approved in writing by the Required
Lenders.
"Subsidiaries" shall mean with respect to any Person, any corporation,
association or other business entity more than 50% of the voting stock or other
ownership interests (including, without
19
limitation, membership interests in a limited liability company) of which is, at
the time, owned or controlled, directly or indirectly, by such Person or one or
more of its Subsidiaries or a combination thereof.
"Swingline Commitment" shall mean the obligation of the Swingline
Lender to make Swingline Loans to the Company in an amount not to exceed
$5,000,000 at any time outstanding.
"Swingline Lender" shall mean the Administrative Agent, in its capacity
as lender of Swingline Loans.
"Swingline Loan" shall have the meaning set forth in Section 2.04
hereof.
"Swingline Note" shall have the meaning set forth in Section 2.04(e)
hereof.
"Syndication Agent" shall mean SunTrust Bank in its capacity as
Syndication Agent under this Agreement or its successor Syndication Agent
permitted pursuant to Section 9.08 hereof.
"Telerate Page 3750" shall mean the display designated as "Page 3750"
on the Associated Press-Dow Jones Telerate Service (or such other page as may
replace Page 3750 on the Associated Press-Dow Jones Telerate Service or such
other service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for Dollar deposits). Each Reserve Adjusted Libor rate
based on the rate displayed on Telerate Page 3750 shall be subject to
corrections, if any, made in such rate and displayed by the Associated Press-Dow
Jones Telerate Service within one hour of the time when such rate is first
displayed by such service.
"Total Commitment" shall mean, at any time, the aggregate of the
Revolving Credit Commitments in effect at such time which, initially, shall be
$240,000,000.
"Total Revolving Credit Facility A Commitment" shall mean, at any time,
the aggregate of the Revolving Credit Facility A Commitments in effect at such
time, which, initially shall be $145,000,000.
"Total Revolving Credit Facility B Commitment" shall mean, at any time,
the aggregate of the Revolving Credit Facility B Commitments in effect at such
time, which, initially shall be $95,000,000.
"Type" shall mean as to any Loan its status as a Base Rate Loan or an
Adjusted Libor Loan.
"UCP" shall mean the International Chamber of Commerce Uniform Customs
and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500 or
any successor publication thereof.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the present
20
value of the accrued benefits under such Plan as of the close of its most recent
plan year exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"Unused Fee Rate" shall mean the percentage set forth below opposite
the applicable ratio:
Revolving Credit Revolving Credit
Facility A Facility B
Consolidated Total Funded Debt Unused Fee Rate Unused Fee Rate
to Consolidated EBITDA (360 Day Basis) (360 Day Basis)
---------------------------------- ----------------- ----------------
Greater than or equal to 2.50:1.00 .375% .325%
Greater than or equal to 2.00:1.00
and less than 2.50:100 .35% .30%
Greater than or equal to 1.50:1.00
and less than 2.00:1.00 .30% .25%
Greater than or equal to 1.00:1.00
and less than 1.50:1.00 .25% .20%
Less than 1.00:1.00 .20% .175%
Notwithstanding the foregoing, during the period commencing on the Closing Date
and ending on the tenth Business Day following the date of delivery of the
financial statements to the Administrative Agent for the nine month period ended
March 31, 2001, the Unused Fee Rate shall be .20% per annum with respect to
Revolving Credit Facility A and .175% per annum with respect to Revolving Credit
Facility B. The Unused Fee Rate will be set or reset quarterly on the date which
is ten Business Days following the date of receipt by the Administrative Agent
of the financial statements referred to in Section 6.03(a) or Section 6.03(b)
hereof, as applicable, together with a certificate of the Chief Financial
Officer of the Company certifying the ratio of Consolidated Total Funded Debt to
Consolidated EBITDA and setting forth the calculation thereof in detail;
provided, however, if any such financial statement and certificate are not
received by the Administrative Agent within the time period required pursuant to
Section 6.03(a) or Section 6.03(b) hereof, as the case may be, the Unused Fee
Rate will be set or reset to a rate, unless the rate of interest specified in
Section 3.01(c) hereof is in effect solely due to the failure of the Company to
comply with Section 6.03(a) or 6.03(b) hereof, determined based on a ratio of
Consolidated Total Funded Debt to Consolidated EBITDA of greater than or equal
to 2.50:1.00 from the date such financial statement and certificate were due
until the date which is ten Business Days following the receipt by the
Administrative Agent of such financial statement and certificate, and provided,
further, that the Lenders shall not in any way be deemed to have waived any
Default or Event of Default, including, without limitation, an Event of Default
resulting from the failure of the Company to comply with Section 7.13 of this
Agreement, or any rights or remedies hereunder or under any other Loan Document
in connection with the foregoing proviso. During the occurrence and continuance
of an Event of Default, no downward adjustment, and only upward adjustments,
shall be made to the Unused Fee Rate.
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SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, feminine and the neuter. Except as otherwise
herein specifically provided, each accounting term used herein shall have the
meaning given to it under Generally Accepted Accounting Principles. The term
"including" shall not be limited or exclusive, unless specifically indicated to
the contrary. The word "will" shall be construed to have the same meaning in
effect as the word "shall". The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole, including the
exhibits and schedules hereto and any amendments thereof, all of which are by
this reference incorporated into this Agreement.
ARTICLE II
LOANS
SECTION 2.01. Revolving Credit Facility A Loans - 4 Year Facility. (a)
Subject to the terms and conditions, and relying upon the representations and
warranties, set forth herein, each Lender severally agrees to make loans
(individually a "Revolving Credit Facility A Loan" and, collectively, the
"Revolving Credit Facility A Loans") to the Company from time to time during the
Revolving Credit Facility A Commitment Period up to, but not exceeding, at any
one time outstanding the amount of its Revolving Credit Facility A Commitment;
provided, however, that no Revolving Credit Facility A Loan shall be made if,
after giving effect to such Revolving Credit Facility A Loan, the Aggregate
Revolving Credit Facility A Outstandings would exceed the Total Revolving Credit
Facility A Commitment in effect at such time or if the Aggregate Outstandings
would exceed the Total Commitment. During the Revolving Credit Facility A
Commitment Period, the Company may from time to time borrow, repay and reborrow
Revolving Credit Facility A Loans on or after the date hereof and prior to the
Revolving Credit Facility A Commitment Termination Date, subject to the terms,
provisions and limitations set forth herein. The Revolving Credit Facility A
Loans may be (i) Adjusted Libor Loans, (ii) Base Rate Loans or (iii) a
combination thereof.
(b) The Company shall give the Administrative Agent irrevocable written
notice (or telephonic notice promptly confirmed in writing) not later than 11:00
a.m. New York, New York time, three Business Days prior to the date of each
proposed Adjusted Libor Loan under this Section 2.01 or prior to 11:00 a.m. New
York, New York time on the date of each proposed Base Rate Loan under this
Section 2.01. Such notice shall be irrevocable and shall specify (i) the amount
and Type of the proposed borrowing, (ii) the initial Interest Period if an
Adjusted Libor Loan, and (iii) the proposed Borrowing Date. Upon receipt of such
notice from the Company, the Administrative Agent shall promptly notify each
Lender thereof. Except for borrowings which utilize the full remaining amount of
the Total Revolving Credit Facility A Commitment, each borrowing of a Base Rate
Loan (other than a Swingline Loan) shall be in an amount not less than
$1,000,000 or, if greater, whole multiples of $100,000 in excess thereof. Each
borrowing of an Adjusted Libor Loan shall be in an amount not less than
$1,000,000 or whole multiples of $500,000 in excess thereof. Funding of all
Revolving Credit Facility A Loans shall be made in accordance with Section 3.12
of this Agreement.
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(c) The Company shall have the right, upon not less than five (5)
Business Days' prior written notice to the Administrative Agent, to terminate
the Total Revolving Credit Facility A Commitment or from time to time to
permanently reduce the amount of the Total Revolving Credit Facility A
Commitment; provided, however, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any payments of the Revolving
Credit Facility A Loans and the Swingline Loans made on the effective date
thereof, the Aggregate Revolving Credit Facility A Outstandings would exceed the
Total Revolving Credit Facility A Commitment as then reduced; provided, further,
that any such termination or reduction requiring prepayment of any Adjusted
Libor Loan shall be made only on the last day of the Interest Period with
respect thereto or on the date of payment in full of all amounts owing pursuant
to Section 3.08 hereof as a result of such termination or reduction. The
Administrative Agent shall promptly notify each Lender of each notice from the
Company to terminate or permanently reduce the amount of the Total Revolving
Credit Facility A Commitment pursuant to this Section 2.01(c). Any such
reduction shall be in the amount of at least $5,000,000 or whole multiples of
$1,000,000 in excess thereof, and shall reduce permanently the amount of the
Total Revolving Credit Facility A Commitment then in effect.
(d) The several agreements of the Lenders to make Revolving Credit
Facility A Loans pursuant to this Section 2.01 shall automatically terminate on
the Revolving Credit Facility A Commitment Termination Date. Upon such
termination, the Company shall immediately repay in full the principal amount of
the Revolving Credit Facility A Loans then outstanding, together with all
accrued interest thereon and all other amounts due and payable hereunder.
SECTION 2.02. Revolving Credit Facility A Note. The Revolving Credit
Facility A Loans made by each Lender shall be evidenced by a promissory note of
the Company (individually, a "Revolving Credit Facility A Note" and,
collectively, the "Revolving Credit Facility A Notes"), substantially in the
form attached hereto as Exhibit A, each appropriately completed, duly executed
and delivered on behalf of the Company and payable to the order of such Lender
in a principal amount equal to the Revolving Credit Facility A Commitment of
such Lender. Each Revolving Credit Facility A Note shall (a) be dated the
Closing Date, (b) be stated to mature on the Revolving Credit Facility A
Commitment Termination Date, and (c) bear interest from the date of the first
Revolving Credit Facility A Loan until paid in full on the unpaid principal
amount thereof from time to time outstanding as provided in Section 3.01 hereof.
Each Lender is authorized to record the date, Type and amount of each Revolving
Credit Facility A Loan and the date and amount of each payment or prepayment of
principal of each Revolving Credit Facility A Loan in such Lender's records or
on the grid schedule annexed to such Lender's Revolving Credit Facility A Note;
provided, however, that the failure of a Lender to set forth each such Revolving
Credit Facility A Loan, payment and other information shall not in any manner
affect the obligation of the Company to repay each Revolving Credit Facility A
Loan made by such Lender in accordance with the terms of its Revolving Credit
Facility A Note and this Agreement. The Revolving Credit Facility A Note, the
grid schedule and the books and records of each Lender shall constitute
presumptive evidence of the information so recorded absent demonstrable error.
23
SECTION 2.03. Letters of Credit. (a) Generally. Subject to the terms
and conditions set forth in this Agreement, upon the written request of the
Company in accordance herewith, the Issuing Lender shall issue Letters of Credit
at any time during the Revolving Credit Facility A Commitment Period with pro
rata participation by all of the Lenders in accordance with their respective
Commitment Proportions. Notwithstanding the foregoing, at no time shall the
Aggregate Letters of Credit Outstandings exceed $25,000,000, and no Letter of
Credit shall be issued if, after giving effect to the same, the Aggregate
Revolving Credit Facility A Outstandings would exceed the Total Revolving Credit
Facility A Commitment in effect at such time or if the Aggregate Outstandings
would exceed the Total Commitment. Each request for issuance of a Letter of
Credit shall be in writing and shall be received by the Issuing Lender by no
later than 12:00 noon, New York, New York time, on the day which is at least two
Business Days prior to the proposed date of issuance or creation. Such issuance
or creation shall occur by no later than 5:00 p.m. on the proposed date of
issuance (assuming proper prior notice as aforesaid). Subject to the terms and
conditions contained herein, the expiry date, and the amount and beneficiary of
the Letters of Credit will be as designated by the Company. The Issuing Lender
shall promptly notify the Administrative Agent and the Lenders of the creation
of any Letter of Credit and of the amounts of all Letters of Credit issued
hereunder and of any extension, reduction, termination or amendment of any
Letter of Credit. Each Letter of Credit issued by the Issuing Lender hereunder
shall identify: (i) the dates of issuance and expiry of such Letter of Credit,
(ii) the amount of such Letter of Credit (which shall be a sum certain), (iii)
the beneficiary of such Letter of Credit, and (iv) the drafts and other
documents necessary to be presented to the Issuing Lender upon drawing
thereunder. In no event shall any Letter of Credit expire (or by its terms be
required to be renewed to a date) after the Revolving Credit Facility A
Commitment Termination Date. The Company agrees to execute and deliver to the
Issuing Lender such further documents and instruments in connection with any
Letter of Credit issued hereunder (including, without limitation, applications
therefor) as the Issuing Lender in accordance with its customary practices may
reasonably request. The Issuing Lender will not be required to issue a Letter of
Credit hereunder with an expiration date (1) more than three hundred sixty (360)
days from the date of issuance of such Letter of Credit, or (2) on or after the
Revolving Credit Facility A Commitment Termination Date. Notwithstanding the
foregoing, Letters of Credit issued hereunder may include automatic extensions
provided that the extensions shall be for periods not to exceed three hundred
sixty (360) days and provided further that the expiration date of any such
Letter of Credit shall not occur on or after the Revolving Credit Facility A
Commitment Termination Date.
(b) Drawings Under Letters of Credit. The Company hereby absolutely and
unconditionally promises to pay the Issuing Lender not later than 12:00 noon
(New York, New York time) the amount of each drawing under a Letter of Credit if
the Company receives notice of such drawing prior to 10:00 a.m., New York, New
York time, on the date of such drawing, or if such notice has not been received
by the Company prior to such time on such date, then not later than 12:00 noon,
New York, New York time, on the Business Day immediately following the day that
the Company receives such notice; provided, however, (i) if any drawing was in
an amount not less than $1,000,000, the Company may, subject to the conditions
to borrowing set forth herein, request in accordance with Section 2.01 hereof
that such payment be financed with a Revolving Credit Facility A Loan which is a
Base Rate Loan in an equivalent amount, and, to the extent so financed,
24
the Company's obligation to make such payment shall be discharged and replaced
by such a Base Rate Loan and (ii) if such drawing or payment was in an amount
less than $1,000,000, the Company may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.04 hereof that such
payment be financed with a Swingline Loan in an equivalent amount and, to the
extent so financed, the Company's obligation to make such payment shall be
discharged and replaced by such Swingline Loan. Such request shall be made by
the Company on the date of receipt of notice from the Issuing Lender of a
drawing under a Letter of Credit as applicable. The Issuing Lender shall notify
the Administrative Agent and each Lender of such request in accordance with
Section 2.01 hereof. If the Company fails to make such payment when due, the
Issuing Lender shall notify each Lender of the amount of the drawing under the
applicable Letter of Credit. Each Lender agrees that on the first Business Day
after receipt of such notice, it will immediately make available by no later
than 12:00 noon, New York, New York time, to the Issuing Lender at its office
located at the Payment Office, or, with respect to the KeyBank Letter of Credit,
at the KeyBank Payment Office, in immediately available funds, its Commitment
Proportion of such drawing, provided (i) each Lender's obligation shall be
reduced by its Commitment Proportion of any reimbursement by the Company in
respect of any such drawing pursuant to this Section 2.03 and (ii) no Lender
shall be required to make payments to the Issuing Lender with respect to a
drawing or payment which the Company reimbursed with the proceeds of a Revolving
Credit Facility A Loan, as contemplated above, if such Lender fully funded its
Commitment Proportion of such Revolving Credit Facility A Loan in accordance
with Section 3.12 hereof. Any payment made by a Lender pursuant to this Section
2.03(b) to reimburse the Issuing Lender for any drawing under a Letter of Credit
(other than a Base Rate Loan or a Swingline Loan as contemplated above) shall
not constitute a Revolving Credit Facility A Loan or a Swingline Loan and shall
not relieve the Company of its obligation to reimburse the Issuing Lender for
such drawing or payment. Each drawing under a Letter of Credit which is not paid
on the date such drawing is made shall accrue interest, for each day from and
including the date of such drawing to but excluding the date that the Company
reimburses the Issuing Lender in full for such drawing at the rate per annum
then applicable to Revolving Credit Facility A Loans which are Base Rate Loans;
provided, however, that if the Company fails to reimburse such drawing when due
pursuant to this paragraph (b), then the Company shall pay to the Issuing Lender
interest on the amount of such drawing at the rate per annum set forth in
Section 3.01(c) hereof. Interest accruing pursuant to the preceding sentence
shall be for the account of the Issuing Lender, except that interest accrued on
and after the date of payment by any Lender pursuant to this Section 2.03(b) to
reimburse the Issuing Lender shall be for the account of such Lender to the
extent of such payment. The Issuing Lender shall promptly notify the
Administrative Agent (which shall notify each Lender) of each drawing under a
Letter of Credit.
(c) Letter of Credit Obligations Absolute.
(i) The obligation of the Company to reimburse the
Issuing Lender as provided hereunder in respect of drawings
under Letters of Credit shall rank pari passu with the
obligation of the Company to repay the Revolving Credit Loans
hereunder, and shall be absolute and unconditional under any
and all circumstances subject to subsection (ii) below.
Without limiting the generality of the foregoing, the
obligation of the Company to reimburse the Issuing Lender in
respect of drawings
25
under Letters of Credit shall not be subject to any defense
based on the non- application or misapplication by the
beneficiary of the proceeds of any such drawing or the
legality, validity, regularity or enforceability of the
Letters of Credit or any related document, even though such
document shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Company, the
beneficiary of any Letter of Credit, or any financial
institution or other party to which any Letter of Credit may
be transferred. The Issuing Lender may accept or pay any draft
presented to it under any Letter of Credit regardless of when
drawn or made and whether or not negotiated, if such draft,
accompanying certificate or documents and any transmittal
advice are presented or negotiated on or before the expiry
date of such Letter of Credit or any renewal or extension
thereof then in effect, and is in substantial compliance with
the terms and conditions of such Letter of Credit.
Furthermore, neither the Issuing Lender nor any of its
correspondents nor any Lender shall be responsible, as to any
document presented under a Letter of Credit which appears to
be regular on its face, and appears on its face to be in
substantial compliance with the terms of such Letter of
Credit, for the validity or sufficiency of any signature or
endorsement, for delay in giving any notice or failure of any
instrument to bear adequate reference to any Letter of Credit,
or for failure of any Person to note the amount of any draft
on the reverse of any Letter of Credit. The Issuing Lender
shall have the right, in its sole discretion, to decline to
accept any documents and to decline to making payment under
any Letter of Credit if the documents presented are not in
strict compliance with the terms of such Letter of Credit.
(ii) Any action, inaction or omission on the part of
the Issuing Lender or any of its correspondents under or in
connection with any Letter of Credit or the related
instruments, documents or property, if in good faith and in
conformity with such laws, regulations or customs as are
applicable, shall be binding upon the Company and shall not
place the Issuing Lender or any of its correspondents or any
Lender under any liability to the Company in the absence of
(x) gross negligence or willful misconduct by the Issuing
Lender or its correspondents or (y) the failure by the Issuing
Lender to pay under a Letter of Credit after presentation of a
draft and documents strictly complying with such Letter of
Credit unless the Issuing Lender is prohibited from making
such payment pursuant to a court order. The Issuing Lender's
rights, powers, privileges and immunities specified in or
arising under this Agreement are in addition to any heretofore
or at any time hereafter otherwise created or arising, whether
by statute or rule of law or contract. All Letters of Credit
issued hereunder will, except to the extent otherwise
expressly provided hereunder, be governed by the UCP to the
extent applicable and not inconsistent with the laws of the
State of New York.
(d) Obligations of Lenders in Respect of Letters of Credit. Each Lender
acknowledges that each Letter of Credit issued by the Issuing Lender pursuant to
this Agreement is issued on behalf of and with the ratable participation of all
of the Lenders (i.e., in accordance with their respective
26
Commitment Proportions), and each Lender agrees to make the payments required by
subsection (b) above and agrees to be responsible for its pro rata share of all
liabilities incurred by the Issuing Lender with respect to each Letter of Credit
issued, established, opened or extended by the Issuing Lender pursuant to this
Agreement for the account of the Company hereunder. Each Lender agrees with the
Issuing Lender and the other Lenders that its obligation to make the payments
required by subsection (b) above shall not be affected in any way by any
circumstances (other than the gross negligence or willful misconduct of the
Issuing Lender) occurring before or after the making of any payment by the
Issuing Lender pursuant to any Letter of Credit, including, without limitation:
(i) any modification or amendment of, or any consent, waiver, release or
forbearance with respect to, any of the terms of this Agreement or any other
instrument or document referred to herein; (ii) the existence of any Default or
Event of Default; or (iii) any change of any kind whatsoever in the financial
position or credit worthiness of the Company.
(e) Replacement of the Issuing Lender. The Issuing Lender may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the replaced Issuing Lender and the successor Issuing Lender. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Lender. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced
Issuing Lender pursuant to Section 3.04 hereof. From and after the effective
date of any such replacement, (i) the successor Issuing Lender shall have all
the rights and obligations of the Issuing Lender under this Agreement with
respect to Letters of Credit to be issued thereafter, and (ii) references herein
to the term "Issuing Lender" shall be deemed to refer to such successor or to
any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the replacement of an Issuing
Lender hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender under
this Agreement with respect to Letters of Credit issued prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(f) Existing Letters of Credit. The Company and the Lenders agree that,
from and after the Closing Date, subject to the satisfaction of the conditions
precedent to the initial Loans hereunder as set forth in Article V, the Existing
Letters of Credit shall be Letters of Credit for all purposes of this Agreement,
including, without limitation, for purposes of Section 3.04(b) hereof.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions,
and relying upon the representations and warranties, set forth herein, the
Swingline Lender agrees to make loans (individually a "Swingline Loan" and,
collectively, the "Swingline Loans") to the Company from time to time during the
Revolving Credit Facility A Commitment Period up to, but not exceeding, at any
one time outstanding the Swingline Commitment; provided, however, that no
Swingline Loan shall be made if, after giving effect to such Swingline Loan, the
Aggregate Revolving Credit Facility A Outstandings would exceed the Total
Revolving Credit Facility A Commitment in effect at such time or if the
Aggregate Outstandings would exceed the Total Commitment; and provided further
that the proceeds from Swingline Loans shall not be used to repay outstanding
Revolving Credit Loans. During the Revolving Credit Facility A Commitment
Period, the Company may from time to time borrow, repay and reborrow Swingline
Loans on or after the date hereof and prior to the
27
Revolving Credit Facility A Commitment Termination Date, subject to the terms,
provisions and limitations set forth herein. The Swingline Loans shall be Base
Rate Loans.
(b) The Company shall give the Administrative Agent irrevocable written
notice (or telephonic notice promptly confirmed in writing) not later than 2:00
p.m. New York, New York time on the date of each proposed Swingline Loan under
this Section 2.04. Such notice shall be irrevocable and shall specify (i) the
amount of the proposed borrowing, and (ii) the proposed Borrowing Date. Upon
receipt of such notice from the Company, the Administrative Agent shall promptly
notify the Swingline Lender and each Lender thereof. Each borrowing of a
Swingline Loan shall be in an amount not less than $100,000 or, if greater,
whole multiples of $100,000 in excess thereof. The Swingline Lender shall make
each Swingline Loan available to the Company by means of a credit to the
operating account of the Company with the Swingline Lender (or, in the case of a
Swingline Loan made to finance or reimburse a Letter of Credit drawing in
accordance with Section 2.03(b) hereof, by remittance to the Issuing Bank) by
4:00 p.m. New York, New York time, on the requested date of such Swingline Loan.
(c) So long as no Default or Event of Default has occurred and is
continuing, the Company may repay Swingline Loans with the proceeds of a
Revolving Credit Facility A Loan. The Swingline Lender may, at any time, require
the Lenders to acquire participations (in the form of Revolving Credit Facility
A Loans, which shall initially be Base Rate Loans) with respect to all or a
portion of the Swingline Loans outstanding. If (i) the Company desires to repay
such Swingline Loan with the proceeds of a Revolving Credit Facility A Loan or
(ii) the Swingline Lender desires to have the Lenders acquire participations (in
the form of Revolving Credit Facility A Loans, which shall initially be Base
Rate Loans), the Swingline Lender shall, by written notice given to the
Administrative Agent not later than 10:00 a.m. New York, New York time on any
Business Day, require the Lenders to acquire participations (in the form of
Revolving Credit Facility A Loans, which shall initially be Base Rate Loans) on
such Business Day with respect to all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
which will become such Revolving Credit Facility A Loans. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Commitment Proportion of such
Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Commitment
Proportion of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire a participation in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or Event of Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 3.12 with respect to Loans made by such Lender, and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Company of any participation in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline
28
Lender. Any amounts received by the Swingline Lender from the Company (or other
party on behalf of the Company) in respect of a Swingline Loan after receipt by
the Swingline Lender of the proceeds of a sale of a participation therein shall
be promptly remitted to the Administrative Agent; any such amounts received by
the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear. The purchase of a
participation in a Swingline Loan pursuant to this paragraph (c) shall not
relieve the Company of any default in the payment thereof.
(d) The agreement of the Swingline Lender to make Swingline Loans
pursuant to this Section 2.04 shall automatically terminate on the Revolving
Credit Facility A Commitment Termination Date. Upon such termination, the
Company shall immediately repay the Swingline Lender or the Administrative
Agent, as applicable, in full the principal amount of the Swingline Loans then
outstanding, together with all accrued interest thereon and all other amounts
due and payable hereunder.
(e) The Swingline Loans made by the Swingline Lender shall be evidenced
by a promissory note of the Company (the "Swingline Note"), substantially in the
form attached hereto as Exhibit C, appropriately completed, duly executed and
delivered on behalf of the Company and payable to the order of the Swingline
Lender in a principal amount equal to the Swingline Commitment. The Swingline
Note shall (a) be dated the Closing Date, (b) be stated to mature on the
Revolving Credit Facility A Commitment Termination Date, and (c) bear interest
from the date thereof until paid in full on the unpaid principal amount thereof
from time to time outstanding as provided in Section 3.01 hereof. The Swingline
Lender is authorized to record the date and amount of each Swingline Loan and
the date and amount of each payment or prepayment of principal of each Swingline
Loan in the Swingline Lender's records or on the grid schedule annexed to the
Swingline Note; provided, however, that the failure of the Swingline Lender to
set forth each such Swingline Loan, payment and other information shall not in
any manner affect the obligation of the Company to repay each Swingline Loan
made by the Swingline Lender in accordance with the terms of the Swingline Note
and this Agreement. The Swingline Note, the grid schedule and the books and
records of the Swingline Lender shall constitute presumptive evidence of the
information so recorded absent demonstrable error.
SECTION 2.05. Revolving Credit Facility B Loans - 364 Day Facility. (a)
Subject to the terms and conditions, and relying upon the representations and
warranties, set forth herein, each Lender severally agrees to make loans
(individually a "Revolving Credit Facility B Loan" and, collectively, the
"Revolving Credit Facility B Loans") to the Company from time to time during the
Revolving Credit Facility B Commitment Period up to, but not exceeding, at any
one time outstanding the amount of its Revolving Credit Facility B Commitment;
provided, however, that no Revolving Credit Facility B Loan shall be made if,
after giving effect to such Revolving Credit Facility B Loan, the Aggregate
Revolving Credit Facility B Outstandings would exceed the Total Revolving Credit
Facility B Commitment in effect at such time or if the Aggregate Outstandings
would exceed the Total Commitment. During the Revolving Credit Facility B
Commitment Period, the Company may from time to time borrow, repay and reborrow
Revolving Credit Facility B Loans
29
on or after the date hereof and prior to the Revolving Credit Facility B
Commitment Termination Date, subject to the terms, provisions and limitations
set forth herein. The Revolving Credit Facility B Loans may be (i) Adjusted
Libor Loans, (ii) Base Rate Loans or (iii) a combination thereof.
(b) The Company shall give the Administrative Agent irrevocable written
notice (or telephonic notice promptly confirmed in writing) not later than 11:00
a.m. New York, New York time, three Business Days prior to the date of each
proposed Adjusted Libor Loan under this Section 2.05 or prior to 11:00 a.m. New
York, New York time on the date of each proposed Base Rate Loan under this
Section 2.05. Such notice shall be irrevocable and shall specify (i) the amount
and Type of the proposed borrowing, (ii) the initial Interest Period if an
Adjusted Libor Loan, and (iii) the proposed Borrowing Date. Upon receipt of such
notice from the Company, the Administrative Agent shall promptly notify each
Lender thereof. Except for borrowings which utilize the full remaining amount of
the Total Revolving Credit Facility B Commitment, each borrowing of a Base Rate
Loan (other than a Swingline Loan) shall be in an amount not less than
$1,000,000 or, if greater, whole multiples of $1,000,000 in excess thereof. Each
borrowing of an Adjusted Libor Loan shall be in an amount not less than
$2,000,000 or whole multiples of $1,000,000 in excess thereof. Funding of all
Revolving Credit Facility B Loans shall be made in accordance with Section 3.12
of this Agreement.
(c) The Company shall have the right, upon not less than five (5)
Business Days' prior written notice to the Administrative Agent, to terminate
the Total Revolving Credit Facility B Commitment or from time to time to
permanently reduce the amount of the Total Revolving Credit Facility B
Commitment; provided, however, that no such termination or reduction shall be
permitted if, after giving effect thereto and to any payments of the Revolving
Credit Facility B Loans made on the effective date thereof, the Aggregate
Revolving Credit Facility B Outstandings would exceed the Total Revolving Credit
Facility B Commitment as then reduced; provided, further, that any such
termination or reduction requiring prepayment of any Adjusted Libor Loan shall
be made only on the last day of the Interest Period with respect thereto or on
the date of payment in full of all amounts owing pursuant to Section 3.08 hereof
as a result of such termination or reduction. The Administrative Agent shall
promptly notify each Lender of each notice from the Company to terminate or
permanently reduce the amount of the Total Revolving Credit Facility B
Commitment pursuant to this Section 2.05(c). Any such reduction shall be in the
amount of at least $5,000,000 or whole multiples of $1,000,000 in excess
thereof, and shall reduce permanently the amount of the Total Revolving Credit
Facility B Commitment then in effect.
(d) The several agreement of the Lenders to make Revolving Credit
Facility B Loans pursuant to this Section 2.05 shall automatically terminate on
the Revolving Credit Facility B Commitment Termination Date. Upon such
termination, the Company shall immediately repay in full the principal amount of
the Revolving Credit Facility B Loans then outstanding, together with all
accrued interest thereon and all other amounts due and payable hereunder.
SECTION 2.06. Revolving Credit Facility B Note. The Revolving Credit
Facility B Loans made by each Lender shall be evidenced by a promissory note of
the Company (individually, a "Revolving Credit Facility B Note" and,
collectively, the "Revolving Credit Facility B Notes"), substantially in the
form attached hereto as Exhibit B, each appropriately completed, duly
30
executed and delivered on behalf of the Company and payable to the order of such
Lender in a principal amount equal to the Revolving Credit Facility B Commitment
of such Lender. Each Revolving Credit Facility B Note shall (a) be dated the
Closing Date, (b) be stated to mature on the Revolving Credit Facility B
Commitment Termination Date, and (c) bear interest from the date of the first
Revolving Credit Facility B Loan until paid in full on the unpaid principal
amount thereof from time to time outstanding as provided in Section 3.01 hereof.
Each Lender is authorized to record the date, Type and amount of each Revolving
Credit Facility B Loan and the date and amount of each payment or prepayment of
principal of each Revolving Credit Facility B Loan in such Lender's records or
on the grid schedule annexed to such Lender's Revolving Credit Facility B Note;
provided, however, that the failure of a Lender to set forth each such Revolving
Credit Facility B Loan, payment and other information shall not in any manner
affect the obligation of the Company to repay each Revolving Credit Facility B
Loan made by such Lender in accordance with the terms of its Revolving Credit
Facility B Note and this Agreement. The Revolving Credit Facility B Note, the
grid schedule and the books and records of each Lender shall constitute
presumptive evidence of the information so recorded absent demonstrable error.
ARTICLE III
PROVISIONS RELATING TO ALL EXTENSIONS OF CREDIT;
FEES AND PAYMENTS
SECTION 3.01. Interest Rate; Continuation and Conversion of Loans.
(a) Each Base Rate Loan shall bear interest for the period
from the date thereof on the unpaid principal amount thereof at a fluctuating
rate per annum equal to the Base Rate plus the applicable Interest Rate Margin.
(b) Each Adjusted Libor Loan shall bear interest for the
Interest Period applicable thereto on the unpaid principal amount thereof at a
rate per annum equal to the Reserve Adjusted Libor determined for each Interest
Period thereof in accordance with the terms hereof plus the applicable Interest
Rate Margin.
(c) Upon the occurrence and during the continuance of a
Default or an Event of Default, at the option of the Required Lenders, the rate
of interest on all Loans and any other amounts payable under the Loan Documents
will be increased to a rate equal to (i) 2% per annum above the rate of interest
otherwise applicable to such Loan, in the case of payments of principal, and
(ii) 2% per annum above the rate that would be applicable to Base Rate Loans
from time to time, in the case of payments of any other amount.
(d) The Company may elect from time to time to convert
outstanding Revolving Credit Loans from Adjusted Libor Loans to Base Rate Loans
by giving the Administrative Agent at least three (3) Business Days prior
irrevocable written notice of such election, provided that any such conversion
of Adjusted Libor Loans shall only be made on the last day of an Interest Period
with respect thereto or upon the date of payment in full of any amounts owing
pursuant to Section 3.08
31
hereof as a result of such conversion. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender thereof. The Company may
elect from time to time to convert outstanding Revolving Credit Loans from Base
Rate Loans to Adjusted Libor Loans by giving the Administrative Agent
irrevocable written notice of such election not later than 11:00 a.m. New York,
New York time three (3) Business Days prior to the date of the proposed
conversion. Upon receipt of such notice the Administrative Agent shall promptly
notify each Lender thereof. All or any part of outstanding Base Rate Loans
(other than Swingline Loans) may be converted as provided herein, provided that
each conversion shall be in the principal amount of $2,000,000 or whole
multiples of $1,000,000 in excess thereof, and further provided that no Default
or Event of Default shall have occurred and be continuing. Any conversion to or
from Adjusted Libor Loans hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of all Adjusted Libor Loans having the same Interest Period
shall not be less than $2,000,000.
(e) Any Adjusted Libor Loan in a minimum principal amount of
$2,000,000 may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Company with the notice provisions
contained in the definition of Interest Period; provided, that no Adjusted Libor
Loan may be continued as such when any Default or Event of Default has occurred
and is continuing, but shall be automatically converted to a Base Rate Loan on
the last day of the Interest Period in effect when the Administrative Agent is
notified, or otherwise has actual knowledge, of such Default or Event of
Default.
(f) If the Company shall fail to select the duration of any
Interest Period for any Adjusted Libor Loan in accordance with the definition of
"Interest Period" set forth in Section 1.01 hereof, the Company shall be deemed
to have selected an Interest Period of one month.
(g) No Revolving Credit Loan may be converted to or continued
as an Adjusted Libor Loan with an Interest Period that extends beyond (i) the
Revolving Credit Facility A Commitment Termination Date, with respect to
Revolving Credit Facility A Loans, or (ii) the Revolving Credit Facility B
Commitment Termination Date, with respect to Revolving Credit Facility B Loans.
(h) Anything in this Agreement or in any Note to the contrary
notwithstanding, the obligation of the Company to make payments of interest
shall be subject to the limitation that payments of interest shall not be
required to be paid to a Lender to the extent that the charging or receipt
thereof would not be permissible under the law or laws applicable to such Lender
limiting the rates of interest that may be charged or collected by such Lender.
In each such event payments of interest required to be paid to such Lender shall
be calculated at the highest rate permitted by applicable law until such time as
the rates of interest required hereunder may lawfully be charged and collected
by such Lender. If the provisions of this Agreement or any Note would at any
time otherwise require payment by the Company to any Lender of any amount of
interest in excess of the maximum amount then permitted by applicable law, the
interest payments to such Lender shall be reduced to the extent necessary so
that such Lender shall not receive interest in excess of such maximum amount.
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(i) Interest on each Loan shall be payable in arrears on each
Interest Payment Date and shall be calculated on the basis of a year of 360 days
and shall be payable for the actual days elapsed. Any rate of interest on the
Loans or other Obligations which is computed on the basis of the Base Rate shall
change when and as the Base Rate changes in accordance with the definition
thereof. Each determination by the Administrative Agent of an interest rate or
fee hereunder shall, absent demonstrable error, be conclusive and binding for
all purposes.
SECTION 3.02. Use of Proceeds. The proceeds of the Revolving Credit
Loans shall be used (a) to pay the Existing Indebtedness, (b) to finance
Acceptable Acquisitions and (c) for general working capital and other corporate
purposes. The Swingline Loans shall be used by the Company for general working
capital and other corporate purposes. Commercial Letters of Credit shall be
issued by the Issuing Lender hereunder for the account of the Company and shall
be issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by the Company
or any Guarantors in the ordinary course of their respective businesses. Standby
Letters of Credit shall be issued by the Issuing Lender for the account of the
Company and shall be issued for purposes in connection with, and in the ordinary
course of, the business of the Company or the Guarantors consistent with
historical purposes of standby letters of credit issued for the account of the
Company prior to the date hereof.
SECTION 3.03. Prepayments. (a) Voluntary. The Company may, at any time
and from time to time, prepay the then outstanding Loans, in whole or in part,
without premium or penalty, except as provided in Section 3.08 hereof, upon
written notice to the Administrative Agent (or telephonic notice promptly
confirmed in writing) not later than 11:00 a.m. New York, New York time, three
(3) Business Days before the date of prepayment with respect to prepayments of
Adjusted Libor Loans, or 11:00 a.m. New York, New York time on the date of
prepayment with respect to Base Rate Loans. Each notice shall be irrevocable and
shall specify the date and amount of prepayment and whether such prepayment is
of Adjusted Libor Loans or Base Rate Loans or a combination thereof, and if a
combination thereof, the amount of prepayment allocable to each. Upon receipt of
such notice, the Administrative Agent shall promptly notify each Lender thereof.
If such notice is given, the Company shall make such prepayment, and the amount
specified in such notice shall be due and payable, on the date specified
therein. Each partial prepayment pursuant to this Section 3.03 hereof shall be
in a principal amount of (i) $1,000,000 or whole multiples of $1,000,000 in
excess thereof with respect to Adjusted Libor Loans and (ii) $1,000,000 or whole
multiples of $1,000,000 in excess thereof with respect to Base Rate Loans.
(b) Mandatory. (i) To the extent that (i) the Aggregate
Revolving Credit Facility A Outstandings exceed the Total Revolving Credit
Facility A Commitment or (ii) the Aggregate Revolving Credit B Outstandings
exceed the Total Revolving Credit Facility B Commitment or (iii) the Aggregate
Outstandings exceed the Total Commitment, then the Company shall immediately
prepay the Revolving Credit Loans to the extent necessary to cause compliance
with each of the foregoing. To the extent that such prepayments are insufficient
to cause such compliance, the Company shall pledge to the Administrative Agent,
for the ratable benefit of the Lenders, Cash Collateral in an amount equal to
the amount of such short-fall, which Cash Collateral shall secure
33
the reimbursement obligations of the Company to the Issuing Lender with
respect to Letters of Credit.
(ii) The Company shall apply fifty percent (50%) of the net
cash proceeds (after costs and expenses) realized by the Company upon any
issuance or sale of equity interests in the Company to prepay outstanding Loans
hereunder, provided, that such mandatory prepayment shall only be required if
the aggregate amount of such net cash proceeds realized in connection with any
one transaction or series of related transactions equals or exceeds $5,000,000.
Such net proceeds shall be applied promptly upon the closing of any such
issuance or sale of equity interests.
All prepayments shall be applied, first, to Base Rate Loans
outstanding and second, to Adjusted Libor Loans outstanding, in such order as
the Administrative Agent shall determine in its sole and absolute discretion.
All prepayments shall be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment.
SECTION 3.04. Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of, and pro rata distribution to, each Lender a commitment
fee equal to the sum of (i) the average daily unused portion of the Total
Revolving Credit Facility A Commitment (after giving effect to any Swingline
Loans then outstanding) from the date of this Agreement until the Revolving
Credit Facility A Commitment Termination Date multiplied by the rate set forth
under the heading Revolving Credit Facility A Unused Fee Rate set forth in the
definition of the term "Unused Fee Rate," plus (ii) the average daily unused
portion of the Total Revolving Credit Facility B Commitment from the date of
this Agreement until the Revolving Credit Facility B Commitment Termination Date
multiplied by the rate set forth under the heading Revolving Credit Facility B
Unused Fee Rate set forth in the definition of the term "Unused Fee Rate," as in
effect on the date of calculation, in each case, based on a year of 360 days.
Such fees shall be payable in arrears (i) on the last day of March, June,
September, and December of each year commencing June 30, 2001, (ii) on the
Revolving Credit Facility A Commitment Termination Date, in the case of
Revolving Credit Facility A, and on the Revolving Credit Facility B Commitment
Termination Date, in the case of Revolving Credit Facility B, and (iii) on each
date either Revolving Credit Commitment is permanently reduced in whole or in
part.
(b) The Company shall pay to the Administrative Agent for the
account of, and pro rata distribution to, the Lenders a commission with respect
to the Lenders' participation in Standby Letters of Credit equal to the Standby
LC Margin multiplied by the average daily amount of the Standby LC Exposure
during the period from and including the Closing Date to but excluding the later
of (a) the Revolving Credit Facility A Commitment Termination Date and (b) the
date on which such Lender ceases to have any Standby LC Exposure. Such
commissions with respect to Standby Letters of Credit shall be payable in
arrears on the last Business Day of March, June, September and December of each
year, commencing June 30, 2001; provided that all such fees shall be payable on
the date on which the Total Commitment terminates and any such fees accruing
after the date on which the Total Commitment terminates shall be payable on
demand. All commissions with respect to Standby Letters of Credit shall be
computed on the basis of a year of three hundred sixty (360) days and shall be
payable for the actual number of days elapsed.
34
(c) The Company shall pay to the Administrative Agent for the
account of, and pro rata distribution to each Lender, a payment fee equal to
0.25% of the amount paid on each Commercial Letter of Credit upon payment of
such amount by the Issuing Lender of such Commercial Letter of Credit.
(d) In addition, the Company shall pay to the Issuing Lender
for its own account, upon issuance of any Letter of Credit hereunder, including
without limitation the KeyBank Letter of Credit, a letter of credit fronting fee
equal to the greater of (i) 1/8 of 1% of the face amount of each Letter of
Credit issued hereunder, or (ii) $250, together with the customary fees charged
by the Issuing Lender in its sole discretion with respect to the issuance,
payment, acceptance, processing and administration of Letters of Credit
(including, without limitation, amendments to Letters of Credit).
SECTION 3.05. Inability to Determine Interest Rate. In the event that
the Administrative Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the Company, absent
demonstrable error) that, by reason of circumstances affecting the London
interbank market, adequate and reasonable means do not exist for ascertaining
the Reserve Adjusted Libor applicable pursuant to Section 3.01(b) hereof for any
requested Interest Period with respect to (a) the making of an Adjusted Libor
Loan, (b) an Adjusted Libor Loan that will result from the requested conversion
of a Base Rate Loan into an Adjusted Libor Loan, or (c) the continuation of an
Adjusted Libor Loan beyond the expiration of the then current Interest Period
with respect thereto, the Administrative Agent shall forthwith give notice by
telephone of such determination, promptly confirmed in writing, to the Company
and each Lender of such determination. Until the Administrative Agent notifies
the Company that the circumstances giving rise to the suspension described
herein no longer exist, the Company shall not have the right to request or
continue an Adjusted Libor Loan or to convert a Base Rate Loan to an Adjusted
Libor Loan.
SECTION 3.06. Illegality. Notwithstanding any other provisions herein,
if any introduction of or change in any law, regulation, treaty or directive or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Adjusted Libor Loans as contemplated by this
Agreement, such Lender shall forthwith give notice by telephone of such
circumstances, promptly confirmed in writing, to the Administrative Agent, which
notice the Administrative Agent shall promptly transmit to the Company and the
other Lenders and (a) the commitment of such Lender to make and to allow
conversion to or continuations of Adjusted Libor Loans shall forthwith be
cancelled for the duration of such illegality and (b) the Revolving Credit Loans
then outstanding as Adjusted Libor Loans, if any, shall be converted
automatically to Base Rate Loans on the next succeeding last day of each
Interest Period applicable to such Adjusted Libor Loans or within such earlier
period as may be required by law. The Company shall pay to such Lender, upon
demand, any additional amounts required to be paid pursuant to Section 3.08
hereof.
SECTION 3.07. Increased Costs. (a) In the event that any introduction of or
change in, after the date hereof, any applicable law, regulation, treaty, order
or directive or in the interpretation or application thereof (including, without
limitation, any request, guideline or policy,
35
whether or not having the force of law, of or from any central bank or other
governmental authority, agency or instrumentality and including, without
limitation, Regulation D), by any authority charged with the administration or
interpretation thereof shall occur, which:
(i) shall subject any Lender or the Issuing Lender to
any tax of any kind whatsoever with respect to this Agreement,
any Note, any Loan or any Letter of Credit (or participations
therein) or change the basis of taxation of payments to such
Lender or the Issuing Lender of principal, interest, fees or
any other amount payable hereunder (other than any tax that is
measured with respect to the overall net income of such Lender
or the Issuing Lender or Lending Office of such Lender or the
Issuing Lender and that is imposed by the United States of
America, or any political subdivision or taxing authority
thereof or therein, or by any jurisdiction in which such
Lender's Lending Office or the Issuing Lender's lending office
is located, or by any jurisdiction in which such Lender is
organized, has its principal office or is managed and
controlled); or
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement (whether or not having the force of law) against
assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of any Lender
or the Issuing Lender; or
(iii) shall impose on any Lender or the Issuing Lender any other condition,
or change therein;
and the result of any of the foregoing is to increase the cost to such Lender or
the Issuing Lender of making, renewing or maintaining or participating in
advances or extensions of credit hereunder or to reduce any amount receivable
hereunder, in each case by an amount which such Lender or the Issuing Lender
deems reasonably material, then, in any such case, subject to the provisions of
Section 3.09 hereof, the Company shall pay such Lender or the Issuing Lender,
upon written demand, such additional amount or amounts as such Lender or the
Issuing Lender shall have determined in good faith will compensate such Lender
for such increased costs or reduction.
(b) If any Lender or the Issuing Lender shall have determined
that the adoption of, or any change in, any applicable law, rule or regulation
regarding capital adequacy, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or the Issuing Lender (or any lending office of any Lender or the
Issuing Lender which funds Loans hereunder) or any Lender's or the Issuing
Lender's holding company, with any request or directive regarding capital
adequacy (whether or not having the force of the law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Lender's capital or on the
capital of such Lender's or the Issuing Lender's holding company as a
consequence of its obligations hereunder to a level below that which such Lender
or the Issuing Lender (or such holding company) could have achieved but for
36
such adoption, change or compliance (taking into consideration such Lender's or
the Issuing Lender's policies and the policies of such Lender's or the Issuing
Lender's holding company with respect to capital adequacy) by an amount deemed
by such Lender or the Issuing Lender to be material, then from time to time, the
Company shall pay to such Lender or the Issuing Lender the additional amount or
amounts as such Lender or the Issuing Lender shall have determined will
compensate such Lender or the Issuing Lender or such Lender's or the Issuing
Lender's holding company for such reduction. Such Lender's or the Issuing
Lender's determination of such amounts shall be conclusive and binding on the
Company absent demonstrable error.
(c) A certificate of a Lender setting forth the amount or
amounts payable pursuant to Sections 3.07(a) and 3.07(b) hereof shall be
conclusive absent demonstrable error. The Company shall pay such Lender or the
Issuing Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) In the event any Lender or the Issuing Lender shall be
entitled to compensation pursuant to Section 3.07(a) or Section 3.07(b) hereof,
it shall promptly notify the Administrative Agent and the Company of the event
by reason of which it has become so entitled; provided, however, no failure on
the part of any Lender or the Issuing Lender to demand compensation under clause
(a) or clause (b) above on one occasion shall constitute a waiver of its right
to demand compensation on any other occasion.
SECTION 3.08. Indemnity. The Company agrees to indemnify each Lender
and to hold each Lender harmless from any loss, cost or expense which such
Lender may sustain or incur, including, without limitation, interest or fees
payable by such Lender to lenders of funds obtained by it in order to maintain
Adjusted Libor Loans hereunder, as a consequence of (a) default by the Company
in payment of the principal amount of or interest on any Adjusted Libor Loan,
(b) default by the Company to accept or make a borrowing of an Adjusted Libor
Loan or a conversion into or continuation of an Adjusted Libor Loan after the
Company has requested such borrowing, conversion or continuation, (c) default by
the Company in making any prepayment of any Adjusted Libor Loan after the
Company gives a notice in accordance with Section 3.03 hereof and/or (d) the
making of any payment or prepayment (whether mandatory or optional) of an
Adjusted Libor Loan or the making of any conversion of an Adjusted Libor Loan to
a Base Rate Loan on a day which is not the last day of the applicable Interest
Period with respect thereto. A certificate of a Lender setting forth such
amounts shall be conclusive absent demonstrable error. The Company shall pay
such Lender the amount shown as due on any certificate within ten (10) days
after receipt thereof.
SECTION 3.09. Mitigation, Obligations; Replacement of Lenders. (a) Each
Lender agrees to use reasonable efforts to designate an alternate Lending Office
with respect to any Type of Loan affected by the events or circumstances
described in Section 3.05, Section 3.06, Section 3.07 or Section 3.10 hereof to
avoid or minimize the Company's liability thereunder; provided, however, that
such efforts shall not cause the imposition on such Lender of any additional
cost or legal, regulatory or administrative burdens deemed by such Lender, in
its sole discretion, to be material.
(b) If any Lender is affected by the events or circumstances described in
Sections
37
3.05, 3.06, 3.07 or 3.10 and requests additional compensation pursuant to the
terms of this Agreement, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (and in accordance with the restrictions
set forth in Section 10.05 hereof), all its interests, rights, and obligations
under this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if such Lender accepts such assignment);
provided, that (i) the Company shall have received the prior written consent of
the Administrative Agent (and if a Commitment is being assigned, the Issuing
Bank and the Swingline Lender), which consent shall not be unreasonably withheld
or delayed, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal amount of its Loans and participation in Swingline
Loans, accrued interest thereon, accrued fees and other amounts payable to it
hereunder from the assignee (to the extent of the outstanding principal and
accrued interest and fees) or the Company (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation
pursuant to Sections 3.05, 3.06 or 3.07 hereof or payments required to be made
pursuant to Section 3.10, such assignment will result in a reduction of such
compensation or payments. A Lender shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegations cease to apply.
SECTION 3.10. Taxes. (a) Except as set forth in clause (d) below or as
required by law, all payments made by the Company under this Agreement shall be
made free and clear of, and without reduction for or on account of, any present
or future taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding (i) income and franchise taxes (imposed
in lieu of income taxes) imposed on the Administrative Agent, the Issuing Lender
or a Lender as a result of a present, former or future connection between the
jurisdiction of the government or the taxing authority imposing such tax and the
Administrative Agent, Issuing Lender or Lender or the lending office of the
Administrative Agent, Issuing Lender or a Lender (excluding a connection arising
solely from the Administrative Agent, Issuing Lender or a Lender having executed
this Agreement, the Notes or the other Loan Documents) or any political
subdivision or taxing authority thereof or therein, and (ii) taxes (including
withholding taxes) imposed by reason of the failure of the Administrative Agent,
Issuing Lender or a Lender, if organized outside of the United States, to comply
with Section 3.10(c) hereof (or the inaccuracy at any time of the certificates,
documents or other evidence delivered thereunder) (such non-excluded taxes being
called "Non-Excluded Taxes"). If any Non-Excluded Taxes are required to be
withheld from any amounts payable to the Administrative Agent, the Issuing
Lender or any Lender hereunder, or under the Notes, the amount so payable to the
Administrative Agent, the Issuing Lender or such Lender shall be increased to
the extent necessary to yield to the Administrative Agent, the Issuing Lender or
such Lender (after payment of all Non-Excluded Taxes and free and clear of all
liability in respect of such Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes provided, however, that the Company shall not be
required to increase any such amounts payable to any Lender with respect to any
Non-Excluded Taxes (i) that are attributable to such Lender's failure to comply
with the requirements of Section 3.09, (ii) that are United States withholding
taxes imposed (or branch profits taxes imposed in lieu thereof) on amounts
payable to such Lender at the
38
time such Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Company with respect to such Non-Excluded
Taxes pursuant to this Section 3.10(a), or (iii) that are imposed as a result of
any event occurring after such Lender becomes a Lender other than a change in
law or regulation or the introduction of any law or regulation or a change in
interpretation or administration of any law. Whenever any Non-Excluded Taxes are
payable by the Company, as promptly as possible thereafter, the Company shall
send to the Administrative Agent for its own account or for the account of the
Issuing Lender or such Lender, as the case may be, a certified copy of an
original official receipt showing payment thereof. If the Company fails to pay
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Administrative Agent, the
Issuing Lender and the Lenders for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent, the Issuing Lender or such
Lender as a result of any such failure together with any expenses payable by the
Administrative Agent, the Issuing Lender or such Lender in connection therewith;
provided that the Administrative Agent, Issuing Lender or such Lender has
provided the Company with notice thereof as required by Section 10.01,
accompanied by a demand for payment.
(b) If a Lender or the Administrative Agent becomes aware that
it is entitled to claim a refund from a governmental authority in respect of any
Non-Excluded Taxes as to which it has been indemnified by the Company or with
respect to which the Company has paid additional amounts pursuant to this
Section 3.10, it promptly shall notify the Company in writing of the
availability of such refund claim and shall make a timely claim to such taxation
authority for such refund at the Company's expense. If a Lender or the
Administrative Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) or a permanent net tax benefit in
respect of any Non-Excluded Taxes as to which it has been indemnified by the
Company or with respect to which the Company has paid additional amounts
pursuant to this Section 3.10, it shall within 30 days from the date of such
receipt pay over the amount of such refund or permanent net tax benefit to the
Company, net of all reasonable out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than interest paid by the
relevant taxation authority with respect to such refund); provided that the
Company, upon the request of such Lender or the Administrative Agent, agrees to
repay the amount paid over to the Company (plus penalties, interest or other
reasonable charges) to such Lender or the Administrative Agent in the event such
Lender or the Administrative Agent is required to repay such refund to such
taxation authority or loses such net tax benefit.
(c) On or before the date on which it becomes a party to this Agreement,
each Lender that is not organized under the laws of the United States or a state
thereof agrees that it will deliver to the Company and the Administrative Agent
(i) two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI or successor applicable form, as the case may be, certifying in
each case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(ii) if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, an Internal Revenue Service Form W-8BEN or successor applicable
form, and a statement in the form of Exhibit H hereto. Each
39
Lender which delivers to the Company and the Administrative Agent a Form W-8BEN
or W-8ECI pursuant to the preceding sentence further undertakes to deliver to
the Administrative Agent two further copies of the said statement and Form
W-8BEN or W-8ECI, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such statement
or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent statement or form previously delivered by
it to the Administrative Agent, and such extensions or renewals thereof as may
be requested by the Administrative Agent, certifying in the case of a Form
W-8BEN or W-8ECI that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes. Each Lender shall promptly notify the Company and the Administrative
Agent at any time it determines that it is no longer in a position to provide
any previously delivered above-mentioned form or statement (or successor
thereto) to the Company and the Administrative Agent.
(d) For any period with respect to which a Lender required to
do so has failed to provide the Company with the appropriate form described in
Section 3.10(c) above (other than if such failure is due to a change in law
occurring subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under Section 3.10(c)
above), such Lender shall not be entitled to indemnification under this Section
3.10 with respect to Non- Excluded Taxes imposed by reason of such failure;
provided, however, that should a Lender become subject to Non-Excluded Taxes
because of its failure to deliver a form required hereunder, the Company shall
take such steps as such Lender reasonably shall request to assist such Lender in
recovering such Non-Excluded Taxes.
SECTION 3.11. Pro Rata Treatment and Payments. (a) Each borrowing by
the Company from the Lenders, each conversion of a Revolving Credit Loan
pursuant to Section 3.01(d) hereof or continuation of a Revolving Credit Loan
pursuant to Section 3.01(e) hereof, each payment by the Company on account of
any fee (other than with respect to fees which are expressly payable to the
Administrative Agent or the Issuing Lender for its own account), reimbursements
by the Company to the Issuing Lender with respect to drawings under Letters of
Credit pursuant to Section 2.03 hereof, and any reduction of the Commitments of
the Lenders hereunder shall be made pro rata according to the respective
relevant Commitment Proportions of the Lenders. Each payment (including each
prepayment) by the Company on account of principal of and interest on each Loan
shall be made pro rata according to the respective outstanding principal amounts
of such Loans held by each Lender. Except as otherwise provided in Section 2.04,
all payments by the Company on account of principal of and interest on any
Swingline Loan shall be made to the Swingline Lender at its office specified on
its signature page hereof in Dollars in immediately available funds. All
payments (including prepayments) to be made by the Company on account of
principal, interest, fees and reimbursement obligations shall be made without
set-off or counterclaim and, with respect to payments of the Loans shall be made
to the Administrative Agent, for the account of the Lenders (except as specified
above), at the Payment Office of the Administrative Agent in Dollars in
immediately available funds. The Administrative Agent shall distribute such
payments with respect to Loans to the Lenders promptly upon receipt in like
funds by wire transfer of each Lender's portion of such payment to such Lender
for the account of its Lending Office. The Administrative Agent may, in its sole
discretion, directly charge principal and interest payments due in respect of
the Loans
40
to the Company's accounts at the Payment Office or other office of the
Administrative Agent. The Issuing Lender may, in its sole discretion, directly
charge reimbursement obligations with respect to Letters of Credit to the
Company's accounts at any office of the Issuing Lender. Except as otherwise
provided in the definition of "Interest Period", if any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
SECTION 3.12. Funding and Disbursement of Loans. (a) Each Lender shall
make each Revolving Credit Loan to be made by it hereunder available to the
Administrative Agent at the Payment Office for the account of such office and
the Administrative Agent by 1:00 p.m. New York, New York time on the Borrowing
Date in Dollars in immediately available funds. Unless any applicable condition
specified in Article V has not been satisfied, the amount so received by the
Administrative Agent will be made available to the Company at the Payment Office
by crediting the account of the Company with such amount and in like funds as
received by the Administrative Agent; provided, however, that if the proceeds of
any Revolving Credit Loan or Swingline Loan or any portion thereof are to be
used to prepay outstanding Revolving Credit Loans, Swingline Loans or Letter of
Credit obligations, then the Administrative Agent shall apply such proceeds for
such purpose to the extent necessary and credit the balance, if any, to the
Company's account.
(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a proposed Borrowing Date that such Lender is affected by
the events or circumstances described in Sections 3.05, 3.06, 3.07 or 3.10 and
that such Lender will not make the amount which would constitute its Commitment
Proportion of the borrowing on such Borrowing Date available to the
Administrative Agent, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such Borrowing Date,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is not made
available to the Administrative Agent until a date after such Borrowing Date,
such Lender shall pay to the Administrative Agent on demand interest on such
Lender's Commitment Proportion of such borrowing at a rate equal to the greater
of (i) the daily average Federal Funds Rate and (ii) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation during such period, from and including such Borrowing Date to the
date on which such Lender's Commitment Proportion of such borrowing shall have
become immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts due
pursuant to this Section 3.12(b) shall be conclusive absent demonstrable error.
Nothing herein shall be deemed to relieve any Lender from its obligations to
fulfill its commitment hereunder or to prejudice any right which the Company may
have against any Lender as a result of any default by such Lender hereunder.
41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make
the Loans herein provided for, the Company represents and warrants to the
Administrative Agent and each Lender that:
SECTION 4.01. Organization, Powers. The Company and each Guarantor (a)
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation, (b) has the corporate power and
authority to own its properties and to carry on its business as being conducted,
(c) is duly qualified to do business in every jurisdiction wherein the conduct
of its business or the ownership of its properties are such as to require such
qualification except those jurisdictions in which the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect, and (d) has
the corporate power to execute, deliver and perform each of the Loan Documents
to which it is a party, including, without limitation, the power to obtain
extensions of credit hereunder and to execute and deliver the Notes. Each
Subsidiary of the Company which is not a Guarantor, other than Excluded
Subsidiaries, (a) is a corporation, limited liability company, partnership or
other legal entity (as indicated on Schedule I hereto) duly organized or formed,
as applicable, validly existing and in good standing under the laws of the
jurisdiction of its formation, (b) has the corporate, limited partnership,
limited liability company or other legal power and authority to own or lease its
properties and to carry on its business as being conducted on the Closing Date
and, (c) is duly qualified to do business in every jurisdiction wherein the
conduct of its business or the ownership of its properties are such as to
require such qualification except in those jurisdictions where the failure to be
so qualified could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.02. Authorization of Borrowing, Enforceable Obligations. The
---------------------------------------------------- execution, delivery and
performance by the Company of this Agreement, and the other Loan Documents to
which it is a party, the borrowings and the other extensions of credit to the
Company hereunder, and the execution, delivery and performance by each Guarantor
of the Loan Documents to which such Guarantor is a party, (a) have been duly
authorized by all requisite corporate, limited partnership or limited liability
company action, (b) will not violate or require any consent (other than consents
as have been made or obtained and which are in full force and effect) under (i)
any provision of law applicable to the Company or any Guarantor, any applicable
rule or regulation of any Governmental Authority, or the Certificate of
Incorporation or By-laws of the Company or the Certificate of Incorporation,
By-Laws, or other organizational documents, as applicable, of any Guarantor or
(ii) any order of any court or other Governmental Authority binding on the
Company or any Guarantor or any indenture, agreement or other instrument to
which the Company or any Guarantor is a party, or by which the Company or any
Guarantor or any of its property is bound and (c) will not be in conflict with,
result in a breach of or constitute (with due notice and/or lapse of time) a
default under any such indenture, agreement or other instrument, which conflict,
breach or default could reasonably be expected to have a Material Adverse
Effect, or result in the creation or imposition of any Lien of any nature
whatsoever upon any of the property or assets of the Company or any Guarantor
other than as contemplated by this Agreement or the other Loan Documents. This
42
Agreement and each other Loan Document to which the Company or any Guarantor is
a party constitutes a legal, valid and binding obligation of the Company and
each such Guarantor, as the case may be, enforceable against the Company and
each such Guarantor, as the case may be, in accordance with its terms except to
the extent that enforcement may be limited by applicable bankruptcy,
reorganization, moratorium, insolvency and similar laws affecting creditors'
rights generally or by equitable principles of general application, regardless
of whether considered in a proceeding in equity or at law.
SECTION 4.03. Financial Condition. (a) The Company has heretofore
furnished to each Lender (i) the audited consolidated balance sheet of the
Company and its Subsidiaries and the related consolidated statements of income,
retained earnings and cash flow of the Company and its Subsidiaries, audited by
Ernst & Young LLP, independent auditors, for the fiscal year ended June 30, 2000
and (ii) the unaudited consolidated balance sheet of the Company and its
Subsidiaries and the related consolidated statements of income, retained
earnings and cash flow of the Company and its Subsidiaries for the six month
period ended December 31, 2000. The financial statements for the year ended June
30, 2000, referred to in clause (i) above, were prepared in conformity with
Generally Accepted Accounting Principles, applied on a consistent basis, and the
financial statements for the fiscal quarter and six month period ended December
31, 2000, referred to in clause (ii) above, were prepared in conformity with
Generally Accepted Accounting Principles, applied on a consistent basis (subject
to year-end adjustments and except for the absence of notes thereto), and, in
each case, such financial statements fairly present the consolidated financial
condition and consolidated results of operations of the Company and its
Subsidiaries as of the date of such financial statements and for the periods to
which they relate and since December 31, 2000 no Material Adverse Effect has
occurred. The Company shall deliver to the Administrative Agent, a certificate
of the Chief Financial Officer of the Company to that effect on the Closing
Date. Other than obligations and liabilities arising in the ordinary course of
business since the date of the Current SEC Report and the acquisition of Fruit
Chips, there are no obligations or liabilities contingent or otherwise, of the
Company or any of its Subsidiaries which are not reflected or disclosed on such
audited statements other than obligations of the Company and its Subsidiaries
incurred in the ordinary course of business.
(b) The Company and each of the Guarantors is Solvent.
SECTION 4.04. Taxes. The Company and each Subsidiary of the Company has
filed or has caused to be filed all tax returns (foreign, federal, state and
local) required to be filed (including, without limitation, with respect to
payroll and sales taxes) and the Company and each Subsidiary of the Company has
paid all taxes (including, without limitation, all payroll and sales taxes),
assessments and governmental charges and levies shown thereon to be due,
including interest and penalties except (a) where the failure to file such tax
returns or pay such taxes, charges or levies could not reasonably be expected to
have a Material Adverse Effect and (b) taxes, assessments and governmental
charges and levies being contested in good faith by appropriate proceedings and
with respect to which adequate reserves in conformity with Generally Accepted
Accounting Principles consistently applied shall have been provided on the books
of the Company and its Subsidiaries.
43
SECTION 4.05. Title to Properties. The Company and each Subsidiary of
the Company has good title to its respective properties and assets reflected on
the financial statements referred to in Section 4.03 hereof, except for such
properties and assets as have been disposed of since the date of such financial
statements as no longer used or useful in the conduct of their respective
businesses or as have been disposed of in the ordinary course of business, and
all such properties and assets are free and clear of all Liens other than
Permitted Liens.
SECTION 4.06. Litigation. (a) Except as set forth on Schedule 4.06(a),
there are no actions, suits or proceedings (whether or not purportedly on behalf
of the Company or any Subsidiary of the Company) pending or, to the knowledge of
the Company, threatened against or affecting the Company or any such Subsidiary
at law or in equity or before or by any Governmental Authority, which involve
any of the transactions contemplated herein or which could reasonably be
expected to result in a Material Adverse Effect; and (b) neither the Company nor
any Subsidiary of the Company is in default with respect to any judgment, writ,
injunction, decree, rule or regulation of any Governmental Authority which could
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.07. Agreements. Neither the Company nor any Subsidiary of the
Company is in violation of or restricted by its charter or bylaws or in breach
or violation of any judgment, order, writ, injunction, decree or regulation
which could reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary of the Company is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement, indenture, loan or credit agreement or any lease or
other agreement or instrument to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.08. Compliance with ERISA. Except as set forth on Schedule
4.08, each Plan is in compliance in all material respects with ERISA; no Plan is
insolvent or in reorganization (as defined in Section 4241 of ERISA), no Plan
has an Unfunded Current Liability, and no Plan has an accumulated or waived
funding deficiency within the meaning of Section 412 of the Code; neither the
Company, any Subsidiary of the Company nor any ERISA Affiliate has incurred any
material liability to or on account of a Plan pursuant to Section 515, 4062,
4063, 4064, 4201 or 4204 of ERISA or reasonably expects to incur any liability
under any of the foregoing Sections on account of the prior termination of
participation in or contributions to any such Plan; no proceedings have been
instituted to terminate any Plan; no condition exists which could reasonably be
expected to present a risk to the Company, any Subsidiary of the Company or any
ERISA Affiliate of incurring a liability to or on account of a Plan pursuant to
the foregoing provisions of ERISA and the Code; and no lien imposed under the
Code or ERISA on the assets of the Company, any Subsidiary of the Company or any
of its ERISA Affiliates exists or to the knowledge of the Company is likely to
arise on account of any Plan. The aggregate potential tax liabilities, fines and
penalties related to the items included on Schedule 4.08 would not have a
Material Adverse Effect.
SECTION 4.09. Federal Reserve Regulations; Use of Proceeds. (a) Neither the
Company nor any Subsidiary of the Company is engaged principally in, nor has as
one of its
44
important activities, the business of extending credit for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States, as
amended from time to time).
(b) No part of the proceeds of any Loan and no other extension of
credit hereunder will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, (i) to purchase or to carry margin
stock or to extend credit to others for the purpose of purchasing or carrying
margin stock, or to refund indebtedness originally incurred for such purposes,
or (ii) for any purpose which violates or is inconsistent with the provisions of
Regulation T, U, or X of the Board of Governors of the Federal Reserve System.
(c) The proceeds of each Loan, and each other extension of credit
hereunder, shall be used solely for the purposes permitted under Section 3.02
hereof.
SECTION 4.10. Approvals. No registration with or consent or approval
of, or other action by, any Governmental Authority or any other Person is
required in connection with the execution, delivery and performance of this
Agreement by the Company or any Guarantor, or with the execution, delivery and
performance of any other Loan Documents to which it is a party or, with respect
to the Company, the borrowings and each other extension of credit hereunder
other than registrations, consents and approvals received prior to the date
hereof and disclosed to the Lenders and which are in full force and effect or
such registrations, consents and approvals required pursuant to Section 5.01
hereof.
SECTION 4.11. Subsidiaries and Affiliates. Attached hereto as Schedule
I is a correct and complete list of each of the Company's Subsidiaries and
Affiliates (other than individuals) as of the Closing Date showing as to each
Subsidiary and Affiliate (other than individuals), its name, the jurisdiction of
its incorporation or formation, its shareholders or other owners of an interest
in each Subsidiary and Affiliate (other than individuals) and the number of
outstanding shares or other ownership interests owned by each shareholder or
other owner of an interest.
SECTION 4.12. Hazardous Materials. The Company and each Subsidiary are
in compliance in all material respects with all applicable Environmental Laws
and neither the Company nor any Subsidiary has used Hazardous Materials on,
from, or affecting any property now owned or occupied or hereafter owned or
occupied by the Company or any such Subsidiary in any manner which violates any
applicable Environmental Law. No prior owner of any such property or any tenant,
subtenant, prior tenant or prior subtenant have used Hazardous Materials on,
from, or affecting such property in any manner which violates any applicable
Environmental Law.
SECTION 4.13. Investment Company Act. Neither the Company nor any
Subsidiary of the Company is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
SECTION 4.14. No Default. No Default or Event of Default has occurred and
is continuing.
45
SECTION 4.15. Credit Arrangements. Schedule V is a complete and correct
list of all material credit agreements, indentures, guaranties, Capital Leases
and other investments, agreements and arrangements relating to borrowed money in
effect on the Closing Date providing for or relating to extensions of credit to
the Company or any Subsidiaries of the Company, or any of them (including
agreements and arrangements for the issuance of letters of credit or for
acceptance financing) in respect of which the Company or any Subsidiaries of the
Company, or any of them, are in any manner directly or contingently obligated;
and the maximum principal or face amounts of the credit in question, outstanding
and which can be outstanding, are correctly stated, and all Liens of any nature
given or agreed to be given as security therefor are correctly described or
indicated in such Schedule.
SECTION 4.16. Permits and Licenses. The Company and each Subsidiary of
the Company each has all permits, licenses, certifications, authorizations and
approvals required for it lawfully to own and operate their respective
businesses except those the failure of which to have could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.17. Compliance with Law. The Company and each Subsidiary of
the Company are each in compliance with all laws, rules, regulations, orders and
decrees which are applicable to the Company or any such Subsidiary, or to any of
their respective properties, which the failure to comply with could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 4.18. Disclosure. Neither this Agreement, any other Loan
Document, nor any other document, certificate or written statement furnished to
the Administrative Agent, the Issuing Lender, or any Lender by or on behalf of
the Company or any of its Subsidiaries for use in connection with the
transactions contemplated by this Agreement contains any untrue statement of
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which they were made.
SECTION 4.19. Labor Disputes and Acts of God. Neither the business nor
the properties of the Company or any Subsidiary of the Company is (i) engaged in
any strike, lockout or other labor dispute or (ii) currently affected by or
subject to any fire, explosion, accident, drought, storm, earthquake, embargo,
act of God or other casualty (whether or not covered by insurance), which could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.20. Pledge Agreements. Each Pledge Agreement (which on the
Closing Date shall be the Dutch Pledge Agreement) executed by the Company and
each Subsidiary, as applicable, shall, pursuant to its terms and applicable law,
constitute a valid and continuing lien on and security interest in the
collateral referred to in such Pledge Agreement in favor of the Administrative
Agent, for the ratable benefit of the Lenders, which shall be prior to all other
Liens which may be perfected under the laws of any state of the United States of
America except Permitted Liens, claims and rights of all other Persons in such
collateral.
46
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions to Initial Extension of Credit. The obligation
of each Lender to make its initial Loan hereunder, and the obligation of the
Issuing Lender to issue the initial Letter of Credit, are subject to the
following conditions precedent:
(a) Notes. On or prior to the Closing Date, the Administrative Agent
shall have received (i) for the account of each Lender, a Revolving Credit
Facility A Note and a Revolving Credit Facility B Note and (ii) for the account
of the Swingline Lender, a Swingline Note, each duly executed by the Company.
(b) Guaranties. On or prior to the Closing Date, the Administrative
Agent shall have received, with a counterpart for each Lender, a Guaranty duly
executed by each Guarantor.
(c) Dutch Pledge Agreement. On or prior to the Closing Date, the
Administrative Agent shall have received the Dutch Pledge Agreement duly
executed by the Company and Hain Europe, together with all stock certificates,
if any, evidencing the shares pledged under the Dutch Pledge Agreement.
(d) Opinion of Counsel. On or prior to the Closing Date, the
Administrative Agent shall have received a written opinion of (a) Cahill Gordon
& Reindel, counsel for the Company and the Guarantors, substantially in the form
of Exhibit G-1 attached hereto, and (b) Nauta Dutilh, Dutch counsel to Hain
Europe, substantially in the form of Exhibit G-2 attached hereto.
(e) Supporting Documents. On or prior to the Closing Date, the
Administrative Agent shall have received, (i) a certificate of good standing for
the Company and each Guarantor from the secretary of state of the states of
their organizational jurisdiction dated as of a recent date; (ii) certified
copies of the Certificate of Incorporation and By-laws or other organization
documents, as applicable of the Company and each Guarantor; and (iii) a
certificate of the Secretary or an Assistant Secretary of the Company and each
Guarantor dated the Closing Date and certifying: (x) that neither the
Certificates of Incorporation nor the By-laws of the Company or of any Guarantor
has been amended since the date of their certification (or if there has been any
such amendment, attaching a certified copy thereof); (y) that attached thereto
is a true and complete copy of resolutions adopted by the Board of Directors of
the Company and by the board of directors or other governing body or Persons of
each Guarantor authorizing the execution, delivery and performance of each Loan
Document to which it is a party and, with respect to the Company, the borrowings
and other extensions of credit hereunder; and (z) the incumbency and specimen
signature of each officer of the Company and of each officer or other authorized
Person of each Guarantor executing each Loan Document to which the Company or
any Guarantor is a party and any certificates or instruments furnished pursuant
hereto or thereto, and a certification by another officer of the Company and
each Guarantor as to the incumbency and signature of the Secretary or Assistant
Secretary of the Company and each Guarantor.
47
(f) Insurance. On or prior to the Closing Date, the Administrative
Agent shall have received a certificate or certificates of insurance from an
independent insurance broker or brokers confirming the insurance required to be
maintained pursuant to Section 6.01 hereof.
(g) Fees and Expenses. On or prior to the Closing Date, the Lenders
shall have received all fees that may be payable to them pursuant to this
Agreement (including any fees payable pursuant to separate fee letters executed
by the Company on January 8, 2001 and as of the date hereof) and reimbursement
of expenses in accordance with Section 10.03(b) hereof.
(h) No Litigation. Except as set forth in Schedule 4.06(a), there shall
exist no action, suit, investigation, litigation or proceeding affecting the
Company or any of its Subsidiaries pending or, to the knowledge of the Company,
threatened before any court, governmental agency or arbiter that could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(i) Consents and Approvals. Except to the extent the failure to obtain
any consents or approvals, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, all governmental and third party
consents and approvals necessary in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall have been
obtained (without the imposition of any conditions that are not reasonably
acceptable to the Required Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Required
Lenders that imposes materially adverse conditions upon the transactions
contemplated hereby.
(j) No Material Adverse Changes. There shall not have occurred any material
adverse change in the business, operations, properties or condition (financial
or otherwise) of the Company or any Guarantor, since December 31, 2000.
(k) Existing Indebtedness. The Administrative Agent shall have received
concurrently with the extension of the initial Loans described herein evidence
that the Existing Indebtedness has been paid in full and that the agreements
giving rise to the Existing Indebtedness have been terminated.
(l) Financial Statements. The Lenders shall have received the audited
consolidated financial statements of the Company and its Subsidiaries for the
fiscal year ended June 30, 2000; together with the management prepared
consolidated financial statements of the Company and its Subsidiaries for the
fiscal quarter and six month period ended December 31, 2000.
(m) Management Letters. To the extent any exist and have not been
previously provided to the Administrative Agent, the Administrative Agent shall
have received a copy of the most recent management letter prepared on behalf of
the Company by the Company's Auditors.
(n) Other Information, Documentation. The Administrative Agent and the
Lenders shall have received such other and further information and documentation
as any of them may
48
reasonably require, including, but not limited to, any information or
documentation relating to compliance by the Company and each Subsidiary of the
Company with the requirements of all Environmental Laws.
(o) Completion of Proceedings. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by the Loan Documents, shall be reasonably
satisfactory in form and substance to the Administrative Agent, the Lenders and
their counsel.
SECTION 5.02. Conditions to Extensions of Credit. The obligation of
each Lender to make each Loan hereunder and the obligation of the Issuing Lender
to issue, amend, renew or extend any Letter of Credit, including, without
limitation, the initial Loan and initial Letter of Credit, are further subject
to the following conditions precedent:
(a) Representations and Warranties. The representations and warranties
by the Company and each Guarantor pursuant to this Agreement and the other Loan
Documents to which each is a party shall be true and correct in all material
respects on and as of the Borrowing Date or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, with the same
effect as though such representations and warranties had been made on and as of
such date unless such representation is as of a specific date, in which case, as
of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on the Borrowing Date or on the date of issuance, amendment,
renewal or extension of a Letter of Credit or will result after giving effect to
the Loan requested or the requested issuance, amendment, renewal or extension of
a Letter of Credit.
(c) Letter of Credit Documentation. With respect to the issuance,
amendment, renewal or extension of any Letter of Credit, the Issuing Lender
shall have received the documents and instruments requested by the Issuing
Lender in accordance with Section 2.03(a) hereof.
Each borrowing hereunder and each issuance, amendment, renewal or extension of a
Letter of Credit shall constitute a representation and warranty of the Company
that the statements contained in clauses (a), (b), and (c) of this Section 5.02
are true and correct on and as of the Borrowing Date or as of the date of
issuance, amendment, renewal or extension of a Letter of Credit, as applicable,
as though such representation and warranty had been made on and as of such date.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Lenders that so long as the
Commitments remain in effect, or any of the principal of or interest on the
Notes or any other Obligations hereunder shall be unpaid it will, and will cause
each of its Domestic and Non-Domestic Subsidiaries, to:
49
SECTION 6.01. Existence, Properties, Insurance. Do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate, partnership or limited liability company, as applicable, existence,
rights and franchises and comply in all material respects with all laws
applicable to it; at all times maintain, preserve, protect or renew all
franchises, trade names, patents, trademarks and service marks and preserve all
of its property, in each case, material to its business and keep the same in
good repair, working order and condition (normal wear and tear excepted) and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted in the ordinary course at all times in the manner and custom of
similar businesses; at all times, preserve and maintain in full force and effect
all governmental rights, privileges, qualifications, permits, licenses and
franchises necessary for the normal conduct of its business; and at all times
maintain insurance covering its assets and its businesses with financially sound
and reputable insurance companies or associations in such amounts and against
such risks (including, without limitation, hazard, business interruption, public
liability and product liability) as are usually carried by companies engaged in
the same or similar business.
SECTION 6.02. Payment of Indebtedness and Taxes. (a) Pay all
indebtedness and obligations, now existing or hereafter arising, as and when due
and payable and (b) pay and discharge or cause to be paid and discharged
promptly all taxes, assessments and government charges or levies imposed upon it
or upon its income and profits, or upon any of its property, real, personal or
mixed, or upon any part thereof, as and when due and payable, as well as all
lawful claims for labor, materials and supplies or otherwise which, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided, however, that neither the Company nor any Subsidiary of the Company
shall be required to pay and discharge or cause to be paid and discharged any
such tax, assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings, and the Company or
such Subsidiary, as the case may be, shall have set aside on its books adequate
reserves determined in accordance with Generally Accepted Accounting Principles
with respect to any such tax, assessment, charge, levy or claim so contested;
further, provided that, subject to the foregoing proviso, the Company and each
Subsidiary of the Company will pay or cause to be paid all such taxes,
assessments, charges, levies or claims upon the commencement of proceedings to
foreclose any lien which has attached as security therefor.
SECTION 6.03. Financial Statements, Reports, etc. Furnish to the
Administrative Agent (with sufficient copies for each Lender):
(a) as soon as available and in any event within ninety (90)
days of the end of the fiscal year of the Company, the audited consolidated
financial statement of the Company and its Subsidiaries which shall include the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year, together with the consolidated statement of income and
statement of cash flows for the Company and its Subsidiaries for such fiscal
year and as of the end of and for the prior fiscal year, all prepared in
accordance with Generally Accepted Accounting Principles and accompanied by an
opinion thereon of Ernst & Young LLP or other nationally recognized independent
certified public accountants reasonably acceptable to the Lenders (the
"Auditor") which
50
opinion shall not include a going concern explanatory paragraph, a qualification
as to Generally Accepted Accounting Principles or like qualification or
exception or a qualification or exception as to the scope of the audit, together
with a report of the Chief Financial Officer of the Company setting forth with
respect to each brand of the Company and its Subsidiaries, the gross revenue and
Net Direct Contributions, in form and substance satisfactory to the Lenders;
(b) as soon as available and in any event within forty-five
(45) days after the end of each of the first, second and third fiscal quarters
of the Company, the unaudited consolidated financial statement of the Company
and its Subsidiaries, which shall include the unaudited consolidated balance
sheet of the Company and its Subsidiaries as of the end of each such quarter,
together with the consolidated statement of income and statement of cash flows
of the Company and its Subsidiaries for each such quarter and for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, all in reasonable detail stating in comparative form the
respective figures for the corresponding date and period in the previous fiscal
year, all prepared by or under the supervision of the Chief Financial Officer of
the Company in accordance with Generally Accepted Accounting Principles (subject
to year-end adjustments and except for the absence of notes thereto), and,
commencing with the period ending June 30, 2001 and each quarter thereafter, a
report of the Chief Financial Officer of the Company setting forth with respect
to each brand of the Company and its Subsidiaries, the gross revenue and Net
Direct Contributions, in form and substance satisfactory to the Lenders;
(c) a certificate prepared and signed by the Auditor with each
delivery required by clause (a) and a certificate prepared and signed by the
Chief Financial Officer with each delivery required by clause (a) and (b),
stating whether the Auditor or Chief Financial Officer, as the case may be,
shall have obtained knowledge of any Default or Event of Default, together with
a certificate of the Chief Financial Officer of the Company demonstrating that
as of the last day of the relevant fiscal year or quarter, as applicable, the
Company was in compliance with the financial condition covenants set forth in
Section 7.13 hereof;
(d) at all times indicated in clause (a) above (i) a copy of
the management letter, if any, prepared by the Auditor and (ii) copies of the
Company's annual financial projections, on a quarterly basis with respect to the
next succeeding fiscal year, in reasonable detail and in form and substance
reasonably satisfactory to the Required Lenders (it being recognized by the
Administrative Agent and the Lenders that future results included in such
projections shall not be viewed as facts and that actual results may differ from
projected results);
(e) promptly after filing thereof, copies of all financial
statements and reports that the Company sends to its shareholders, and copies of
all regular, periodic and special financial information, proxy materials,
reports and other information which the Company or any Guarantor shall file with
the Securities and Exchange Commission;
(f) promptly after submission to any government or regulatory agency, all
documents and information furnished to such government or regulatory agency
other than such
51
documents and information prepared in the normal course of business and which
could not reasonably be expected to result in a Material Adverse Effect; and
(g) promptly, from time to time, such other information
regarding the operations, business affairs and condition (financial or
otherwise) of the Company or any Subsidiary of the Company as any Lender may
reasonably request.
SECTION 6.04. Books and Records; Access to Premises.
-------------------------------------
(a) Maintain adequate records and proper books of record and
account in which full, true and correct entries will be made in a manner to
enable the preparation of financial statements in accordance with Generally
Accepted Accounting Principles, and which shall reflect all financial
transactions of the Company and each of its Subsidiaries and matters involving
the assets and business of the Company and such Subsidiaries.
(b) At any time and from time to time during normal business
hours (and provided that no Default or Event of Default has occurred and is
continuing upon reasonable prior notice) permit any Lender or any agents or
representatives thereof to examine and make abstracts from the books and records
of such information which such Lender deems is necessary or desirable
(including, without limitation, the financial records of the Company and its
Subsidiaries, but excluding information governed by a written confidentiality
agreement which prohibits such access), and to visit the properties of the
Company or any of its Subsidiaries and to discuss the affairs, finances and
accounts of the Company or any of its Subsidiaries with any of their respective
executive officers or the Company's independent accountants.
SECTION 6.05. Notice of Adverse Change. Promptly notify the
Administrative Agent (and the Administrative Agent shall promptly notify each
Lender) in writing of (a) any change in the business or the operations of the
Company or its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, and (b) any information which indicates that any
financial statements which are the subject of any representation contained in
this Agreement, or which are furnished to the Administrative Agent or the
Lenders pursuant to this Agreement, fail to present fairly, as of the date
thereof and for the period covered thereby, the financial condition and results
of operations purported to be presented therein, disclosing the nature thereof.
SECTION 6.06. Notice of Default. Promptly notify the Administrative
Agent (and the Administrative Agent shall promptly notify each Lender) of any
Default or Event of Default which shall have occurred or the occurrence or
existence of any event or circumstance that in the reasonable judgment of the
Company is likely to become a Default or Event of Default, which notice shall
include a written statement as to such occurrence, specifying the nature thereof
and the action (if any) which is proposed to be taken with respect thereto.
SECTION 6.07. Notice of Litigation. Promptly notify the Administrative
Agent (and the Administrative Agent shall promptly notify each Lender) of any
action, suit or proceeding at law
52
or in equity or by or before any governmental instrumentality or other agency
which could reasonably be expected to have a Material Adverse Effect.
SECTION 6.08. Notice of Default in Other Agreements. Promptly notify
the Administrative Agent (and the Administrative Agent shall promptly notify
each Lender) of any default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement or
instrument to which the Company or any Subsidiary of the Company is a party
which default could reasonably be expected to have a Material Adverse Effect.
SECTION 6.09. Notice of ERISA Event. Promptly after the Company or any
Guarantor knows any of the following, deliver to the Administrative Agent a
certificate of the Chief Financial Officer of the Company setting forth details
as to the occurrence and the action, if any, which the Company, such Guarantor
or any ERISA Affiliate is required or proposes to take, together with any
notices required or proposed to be given to or filed with or by the Company,
such Guarantor, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator, with respect thereto: that a Reportable Event has occurred with
respect to a Plan, that an accumulated funding deficiency (as defined in Section
412 of the Code) has been incurred or an application may be or has been made to
the Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code with respect to a Plan
that is a Single Employer Plan (within the meaning of Section 4001(a)(15) of
ERISA), that a Plan has been terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA, that one or more Plans that are Single
Employer Plans (within the meaning of Section 4001(a)(15) of ERISA) have an
Unfunded Current Liability, that proceedings may be or have been instituted to
terminate a Plan, that a proceeding has been instituted pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan, or that the Company,
any Guarantor or any ERISA Affiliate will incur any liability (including any
contingent or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA.
Upon request of any Lender, the Company will deliver to each Lender a complete
copy of the annual report (Form 5500) of each Plan that is a Single Employer
Plan (within the meaning of Section 4001(a)(15) of ERISA), filed with the
Internal Revenue Service. In addition to any certificates or notices delivered
to each Lender pursuant to the first sentence hereof, copies of any other
notices received by the Company or any Guarantor required to be delivered to
each Lender hereunder shall be delivered to each Lender no later than ten days
after the later of the date such report or notice has been filed with the
Internal Revenue Service or the PBGC, given to Plan participants or received by
the Company or any Guarantor.
SECTION 6.10. Notice of Environmental Law Violations. Promptly notify
the Administrative Agent of the receipt of any notice of an action, suit, or
proceeding before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, pending against the
Company or any Subsidiary of the Company relating to any alleged violation of
any Environmental Law which could reasonably be expected to have a Material
Adverse Effect.
53
SECTION 6.11. Compliance with Applicable Laws. Comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority, the breach of which could reasonably be expected to have
a Material Adverse Effect, including, without limitation, the rules and
regulations of the Board of Governors of the Federal Reserve System and the
Federal Deposit Insurance Corporation.
SECTION 6.12. Additional Subsidiaries. Give the Administrative Agent
prompt written notice of the creation, establishment or acquisition, in any
manner, of any Subsidiary of the Company not existing on the Closing Date or of
the fact that a Subsidiary has ceased to be an Excluded Subsidiary. Subject to
the last sentence of this Section 6.12, the Company or a Domestic Subsidiary of
the Company, as appropriate, (a) shall execute a Pledge Agreement, in the form
of Exhibit I-1 or I-2 hereto (or such other agreement as shall be required by
the Administrative Agent), as applicable, with respect to not more than 65% of
each class of the capital stock or other equity interest of each First-Tier
Subsidiary of such Person which is or becomes a Non-Domestic Subsidiary and
which is not an Excluded Subsidiary, and (b) shall cause each Subsidiary of such
Person which is a Domestic Subsidiary and which is not an Excluded Subsidiary to
execute a Guaranty, in the form of Exhibit E hereto, in the case of both (a) and
(b), within ten (10) days after the creation, establishment or acquisition of
such Subsidiary or of the date such Subsidiary ceases to be an Excluded
Subsidiary and in connection therewith shall deliver or cause to be delivered
such proof of corporate action, incumbency of officers, opinions of counsel and
other documents as are consistent with those delivered as to each Subsidiary
pursuant to Section 5.01 hereof on the Closing Date, or as the Administrative
Agent may request, each in form and substance satisfactory to the Administrative
Agent. In no event shall the Company be required to pledge any of the assets of
a Subsidiary that is a controlled foreign corporation, as defined in Section
957(a) of the Code, including, but not limited to the stock of any Subsidiary
held directly or indirectly by any such Subsidiary.
SECTION 6.13. Environmental Laws. Comply in all material respects with
the requirements of all applicable Environmental Laws, provide to the Lenders
all documentation in connection with such compliance that any of the Lenders may
reasonably request, and defend, indemnify, and hold harmless the Administrative
Agent and each Lender and their respective employees, agents, officers, and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way related to, (a)
the presence, disposal, or release of any Hazardous Materials on any property at
any time owned or occupied by the Company or any Subsidiary of the Company, (b)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials, (c) any lawsuit
brought or threatened, settlement reached, or government order relating to such
Hazardous Materials, and/or (d) any violation of applicable Environmental Laws,
including, without limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs, and litigation expenses.
SECTION 6.14. Management Letters. Deliver to the Administrative Agent (and
the Administrative Agent shall promptly deliver a copy to each Lender), as soon
as available, but in any
54
event within seven (7) Business Days of any such letter being issued, a copy of
the management letter addressed to the Company by the Company's Auditors.
ARTICLE VII
NEGATIVE COVENANTS
The Company covenants and agrees with the Lenders that so long as the
Commitments remain in effect or any of the principal of or interest on any Note
or any other Obligations hereunder shall be unpaid, it will not, and will not
cause or permit any of its Domestic Subsidiaries or Non- Domestic Subsidiaries,
directly or indirectly, to:
SECTION 7.01. Indebtedness. Incur, create, assume or suffer to exist or
otherwise become liable in respect of any Indebtedness, other than:
(a) Indebtedness incurred prior to the date hereof as described in Schedule
III attached hereto (which is not described in Section 7.01(b) through 7.01(j)
hereof), but not including any renewals or extensions thereof.
(b) Indebtedness to the Lenders under this Agreement, the Notes or any
other Loan Document;
(c) Indebtedness for trade payables incurred in the ordinary course of
business; provided such payables shall be paid or discharged when due;
(d) Indebtedness consisting of guarantees permitted pursuant to Section
7.03 hereof;
(e) subject to Section 7.06 hereof, Subordinated Indebtedness incurred in
connection with Acceptable Acquisitions in an aggregate amount not to exceed
$10,000,000 at any time outstanding; provided, however, that no Default or Event
of Default shall have occurred and be continuing at the time of incurrence
thereof or would occur after giving effect to the incurrence of such
Subordinated Indebtedness;
(f) Indebtedness secured by purchase money liens as permitted under Section
7.02(h) hereof and Indebtedness arising under Capital Leases; provided that the
aggregate amount of such Indebtedness incurred in any fiscal year of the Company
shall not exceed $5,000,000, and, further, provided no Default or Event of
Default shall have occurred and be continuing or would occur after giving effect
to the incurrence of such Indebtedness;
(g) Indebtedness with respect to Hedging Agreements entered into by the
Company;
55
(h) Indebtedness arising under or with respect to foreign
exchange contracts entered into by the Company for the purchase or sale of
foreign currency arranged by any Lender for the account of the Company or the
Guarantors, provided that such foreign exchange contracts shall be entered into
in the ordinary course of its business with respect to its business needs and
not for speculative purposes;
(i) Indebtedness for taxes, assessments or other governmental
charges or levies not yet delinquent or which are being contested in good faith
by appropriate proceedings; provided, however, that adequate reserves with
respect thereto are maintained on the books of the Company or any Subsidiary of
the Company in accordance with Generally Accepted Accounting Principles;
(j) Indebtedness owing by (i) the Company to any Guarantor or
(ii) any Guarantor to the Company or any other Guarantor, to the extent that
such Indebtedness is otherwise permitted pursuant to the terms and conditions of
this Agreement;
(k) purchase money Indebtedness for borrowed money secured
solely by mortgages on the Company's real property in an amount not to exceed
$15,000,000 in the aggregate at any time outstanding; and
(l) other Indebtedness not provided for in Section 7.01(a)
through Section 7.01(k) not to exceed $5,000,000 in the aggregate at any one
time outstanding; provided such Indebtedness shall be and remain unsecured at
all times.
SECTION 7.02. Liens. Incur, create, make, assume or suffer to exist any
Lien on any of their respective assets now or hereafter owned, other than:
(a) Liens existing on the date hereof as set forth on Schedule II attached
hereto (which are not described in Sections 7.02(b) through 7.02(i) hereof), but
not including any renewals or extensions thereof;
(b) Liens securing Indebtedness described in Section 7.01(i) hereof,
provided that no notice of lien has been filed or recorded under the Code;
(c) carriers', warehousemens', mechanics', suppliers' or other like Liens
arising in the ordinary course of business and not overdue for a period of more
than thirty (30) days or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property subject thereto;
(d) Liens incurred or deposits to secure (i) the non-delinquent performance
of tenders, bids, trade contracts (other than for borrowed money), leases,
statutory obligations, (ii) contingent obligations on surety, performance and
appeal bonds, and (iii) other non-delinquent obligations of similar nature; in
each case, incurred in the ordinary course of business;
56
(e) any attachment, judgment or similar Lien arising in connection with any
court or governmental proceeding provided that the execution or other
enforcement of such Lien is effectively stayed within thirty (30) days after the
entry thereof;
(f) easements, rights of way, restrictions and other similar charges or
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not interfere in any material respect with the occupation, use and
enjoyment by the Company or any Subsidiary of the Company of the property or
assets encumbered thereby in the normal course of their respective business or
materially impair the value of the property subject thereto;
(g) deposits or pledges required in the ordinary course of business in
connection with workmen's compensation, unemployment insurance and other social
security laws;
(h) purchase money Liens for fixed or capital assets acquired or held by
the Company or its Subsidiaries in the ordinary course of business, securing
Indebtedness permitted pursuant to Section 7.01(f) hereof; provided in each case
(i) no Default or Event of Default shall have occurred and be continuing at the
time such Lien is created or shall occur after giving effect to such Lien, (ii)
such purchase money lien does not exceed 100% of the purchase price of, and
encumbers only, the property acquired, and (iii) such purchase money Lien does
not secure any Indebtedness other than in respect of the purchase price of the
asset acquired;
(i) Liens in favor of banks or other depository institutions upon property
or assets of the Company or any of its Subsidiaries arising under the common law
or pursuant to contractual rights of set off; and
(j) Liens on real property of the Company securing Indebtedness permitted
by Section 7.01(k) hereof, provided the Lien is specifically limited to such
real property.
SECTION 7.03. Guaranties. Guarantee, endorse, become surety for, or
otherwise in any way become or be responsible for the Indebtedness or
obligations of any Person, whether by agreement to maintain working capital or
equity capital or otherwise maintain the net worth or solvency of any Person or
by agreement to purchase the Indebtedness of any other Person, or agreement for
the furnishing of funds, directly or indirectly, through the purchase of goods,
supplies or services for the purpose of discharging the Indebtedness of any
other Person or otherwise, or enter into or be a party to any contract for the
purchase of merchandise, materials, supplies or other property if such contract
provides that payment for such merchandise, materials, supplies or other
property shall be made regardless of whether delivery of such merchandise,
supplies or other property is ever made or tendered except:
(a) guaranties executed prior to the date hereof as described
on Schedule IV attached hereto (which are not described in Sections 7.03(b)
through 7.03(c) hereof), but not including any renewals or extensions thereof;
57
(b) endorsements of negotiable instruments for collection or deposit in the
ordinary course of business; and
(c) guaranties of any Indebtedness under this Agreement or any other Loan
Document.
SECTION 7.04. Sale of Assets. Sell, lease, assign, transfer or
otherwise dispose of their now owned or hereafter acquired respective properties
and assets, whether or not pursuant to an order of a federal agency or
commission, except for (a) the sale of inventory disposed of in the ordinary
course of business, (b) the sale or other disposition of properties or assets no
longer used or useful in the conduct of their respective businesses, (c) the
transfer of Intellectual Property to an IP Subsidiary, (d) a transfer from the
Company or any direct or indirect wholly-owned Guarantor to the Company or
another direct or indirect wholly-owned Guarantor, (e) an arrangement, directly
or indirectly, with any Person whereby it shall sell or transfer any property,
whether real or personal, used or useful in its business, whether now owned or
hereafter acquired, if at the time of such sale or disposition it intends to
lease or otherwise acquire the right to use or possess (except by purchase) such
property or like property for a substantially similar purpose, (f) the sale or
disposition of assets in arms length transactions; provided that the aggregate
net proceeds of any such sale pursuant to subsections (a) through (f) of this
Section 7.04 shall not exceed $5,000,000, in the aggregate, in any fiscal year,
or (g) the transfer permitted under Section 7.08.
SECTION 7.05. Sales of Receivables. Sell, transfer, discount or
otherwise dispose of notes, accounts receivable or other obligations owing to
the Company or any Subsidiary of the Company, with or without recourse, except
for collection in the ordinary course of business.
SECTION 7.06. Loans and Investments. Make or commit to make any
advance, loan, extension of credit, or capital contribution to, or purchase or
hold beneficially any stock or other securities, or evidence of Indebtedness of,
purchase or acquire all or a substantial part of the assets of, make or permit
to exist any interest whatsoever in, any other Person except for (a) the
ownership of stock of any Subsidiary existing as of the Closing Date or acquired
after the date hereof pursuant to an Acceptable Acquisition, provided that the
Company has complied with its obligations under Section 6.12 hereof, (b) loans
to directors and employees of the Company or any Guarantor in an amount not to
exceed $5,000,000 in the aggregate at any time outstanding, (c) Eligible
Investments, (d) loans and advances by the Company to any Subsidiary of the
Company and loans and advances by any Subsidiary of the Company to the Company
or any other Subsidiary of the Company, (e) trade credit to customers, provided
that such credit is extended in the ordinary course of the business of the
Company or such Subsidiary, (f) (i) investments in the Fruit Chips Spanish Joint
Venture in an amount not to exceed $500,000 in the aggregate and (ii)
investments in other joint ventures in an amount not to exceed $10,000,000 in
the aggregate during the term of this Agreement (provided, (A) the documentation
governing any such joint venture does not contain restrictions on distributions
or dividends to the Company and (B) any such joint venture is engaged in the
same line of business conducted by the Company (or the manufacturing of products
used in such business)) and (g) Acceptable Acquisitions, provided that (i) not
more than six (6) Acceptable Acquisitions may be closed in any 12 month period;
(ii) not more than three (3) of such Acceptable Acquisitions during
58
any such time period each shall have an aggregate consideration (of any kind or
description including consideration paid by delivery of promissory notes, by the
assumption of liabilities or otherwise) in excess of $10,000,000 to be paid by
the Company or any of its Subsidiaries in connection with each such Acceptable
Acquisition, and (iii) with respect to each such acquisition, on or before the
fifteenth (15th) Business Day prior to the closing of such proposed acquisition,
the Company shall have delivered to the Lenders:
(A) a preliminary or draft report of the Company's Auditor, which
report shall set forth the EBITDA of the subject of the proposed
acquisition, together with any and all adjustments thereto, provided
that the final version of such report of the Company's Auditor, in form
and substance satisfactory to the Lenders, shall be delivered to the
Lenders on or before the fifth (5th) Business Day prior to the closing
of such proposed acquisition;
(B) a preliminary or draft certificate of the Chief Financial Officer
demonstrating compliance with the requirements of clauses (c) and (d)
of the definition of "Acceptable Acquisition", each of which shall be
in form and substance satisfactory to the Lenders, provided that the
final version of the certificate of the Chief Financial Officer, in
form and substance satisfactory to the Lenders, shall be delivered to
the Lenders on or before the fifth (5th) Business Day prior to the
closing of such proposed acquisition;
(C) financial statements which shall include balance sheets, income
statements and statements of cash flows of the Person being acquired,
(a) in the same form and substance as those required to be delivered by
the Company under Sections 6.03(a) and 6.03(b) hereof, to the extent
such are available, or (b) if unavailable, in the form relied upon by
the Company in connection with such transaction, together with the due
diligence report prepared by the Company's Auditors, or another
nationally recognized accounting firm, in connection with such
transaction, in each case for the previous three (3) fiscal years;
(D) pro forma balance sheet and income statements of the Company and
its Subsidiaries (after giving effect to the proposed Acceptable
Acquisition) as of the then most recent fiscal quarter ended
demonstrating that upon consummation of such Acceptable Acquisition,
the Company will be in compliance with the financial covenants
contained in Section 7.13, such eveidence of compliance to be in form
and substance reasonably satisfactory to the Lenders;
(E) copies of the relevant purchase agreement and all schedules thereto;
(F) evidence satisfactory to the Lenders that the shares or other
interest in the Person, or the assets of the Person, which is the
subject of the related Acceptable Acquisition are free and clear of all
Liens, except those Liens permitted pursuant to Section 7.02,
including, without limitation, with respect to the acquisition of
shares or other equity interests, free of any restrictions on transfer
other than restrictions applicable to the sale of securities under
federal and state securities laws and regulations generally.
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Notwithstanding the foregoing, with respect to a proposed acquisition having an
aggregate consideration (of any kind or description including consideration paid
by delivery of promissory notes, by the assumption of liabilities or otherwise)
of less than $10,000,000 (or less than $20,000,000 with respect to acquisitions
structured solely as stock for stock acquisitions), the requirements of clause
(g)(iii) above need only be in form and substance satisfactory to the Required
Lenders and the Required Lenders shall have the right, in their sole discretion,
to waive any of the requirements of such clause.
SECTION 7.07. Nature of Business. Change or alter, in any material respect,
the nature of its business from the nature of the business engaged in by it on
the date hereof (or reasonable extension thereof).
SECTION 7.08. Transfer of Equity in Hain Europe. Transfer the Company's
ownership interest in Hain Europe to any Person, other than a Person who is a
direct or indirect wholly-owned Subsidiary of the Company (the "Transferee
Subsidiary"), provided that (a) if the Transferee Subsidiary is a Non-Domestic
Subsidiary, the Company and/or those Subsidiaries of the Company owning
interests in the Transferee Subsidiary shall, immediately following such
transfer, execute and deliver to the Administrative Agent a Pledge Agreement
with respect to 65% of the capital stock or other equity interest of such
Transferee Subsidiary; provided further, that in the event the Transferee
Subsidiary is a limited partnership, the Administrative Agent, in its
discretion, shall elect the allocation of the 65% interest to be pledged among
the general partnership and limited partnership interests, or (b) if such
Transferee Subsidiary is a Domestic Subsidiary, then such Domestic Subsidiary
shall, immediately following such transfer, execute and deliver to the
Administrative Agent a Dutch Pledge Agreement with respect to 65% of the capital
stock or other equity interest of Hain Europe. Upon delivery of a Pledge
Agreement under (a) or (b) above, the Administrative Agent shall release the
lien granted to it pursuant to the Dutch Pledge Agreement executed on the
Closing Date.
SECTION 7.09. Federal Reserve Regulations. Permit any Loan or the
proceeds of any Loan or any other extension of credit hereunder to be used for
any purpose which violates or is inconsistent with the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System.
SECTION 7.10. Accounting Policies and Procedures. Permit any change in
the accounting policies and procedures of the Company or any of its
Subsidiaries, including a change in fiscal year, provided, however, that any
policy or procedure required to be changed by the Financial Accounting Standards
Board (or other board or committee thereof) or the SEC in order to comply with
Generally Accepted Accounting Principles may be so changed.
SECTION 7.11. Hazardous Materials. Cause or permit any of its
properties or assets to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose of, transfer, produce or process Hazardous
Materials, except in compliance with all applicable federal, state and local
laws or regulations, or cause or permit, as a result of any intentional or
negligent act or omission on the part of the Company or any of its Subsidiaries,
a release of Hazardous Materials
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onto such property or asset or onto any other property, except in compliance
with such laws and regulations.
SECTION 7.12. Limitations on Fundamental Changes, Limitations on
Consideration. Except for Acceptable Acquisitions, and except as permitted by
Sections 7.04 and 7.08 hereof, merge or consolidate with, or sell, assign, lease
or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now or hereafter
acquired) to, any Person, or, except with respect to an Acceptable Acquisition,
acquire all of the stock or all or substantially all of the assets or the
business of any Person or liquidate, wind up or dissolve or suffer any
liquidation or dissolution. Notwithstanding the foregoing, (a) any Subsidiary of
the Company may merge with and into the Company or any Domestic Subsidiary of
the Company, (b) any Non-Domestic Subsidiary of the Company may merge with and
into another Non-Domestic Subsidiary of the Company, provided, that no
Non-Domestic Subsidiary with respect to which the Administrative Agent has
received a pledge of stock shall merge with and into another Non- Domestic
Subsidiary if 65% of the shares or other ownership interests of the surviving
Subsidiary cannot be pledged to the Administrative Agent for the benefit of the
Lenders, and (c) the Company may merge with and into a Domestic Subsidiary of
the Company in order to effect a change of the state of incorporation of the
Company, provided that in each of the above (i) the Company shall notify the
Administrative Agent not less than thirty (30) days prior to such event and (ii)
the surviving entity shall, if applicable, assume the obligations of the merged
entity pursuant to this Agreement or any of the other Loan Documents and shall
execute such documents and agreements as may be reasonably required by the
Administrative Agent.
SECTION 7.13. Financial Condition Covenants.
(a) Consolidated Total Funded Debt to Consolidated EBITDA. Permit, at any
time, the ratio of Consolidated Total Funded Debt to Consolidated EBITDA to be
greater than 3.00:1.00.
(b) Interest Coverage Ratio. Permit, at any time, the ratio of Consolidated
EBITDA minus (i) Consolidated Maintenance Capital Expenditures and (ii) cash
taxes paid to Consolidated Interest Expense to be less than 4.00:1.00.
(c) Consolidated Tangible Net Worth. Permit, at any time, the
Consolidated Tangible Net Worth to be less than 95% of Consolidated Tangible Net
Worth at June 30, 2000 plus 50% of the cumulative Consolidated Net Income (but
not less than zero) from July 1, 2000 through the end of the then most recently
concluded fiscal quarter, provided, however, there shall be excluded from the
determination of cumulative Consolidated Net Income the results of any fiscal
quarter for which the Company incurred a Consolidated Net Loss.
(d) No Cumulative Quarterly Losses. Permit, at any time, a Consolidated Net
Loss for two consecutive fiscal quarters.
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SECTION 7.14. Subordinated Debt. (i) Directly or indirectly prepay,
defease, purchase, redeem, or otherwise acquire any Subordinated Debt or (ii)
amend, supplement or otherwise modify any of the subordinated terms thereof in
any way which would materially affect the interests of the Lenders, without the
prior written consent of the Required Lenders.
SECTION 7.15. Dividends. Declare any dividend on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for the
purchase, redemption, defeasance, retirement or other acquisition of, any shares
of any class of stock of the Company whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash, securities or property or in obligations of the Company or in
any combination thereof, except dividends paid by a Guarantor to the Company and
repurchases by the Company of its common stock on or after the Closing Date for
an aggregate purchase price not to exceed $5,000,000.
SECTION 7.16. Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate, except (i) in the ordinary
course of and pursuant to the reasonable requirements of the Company's or any of
its Subsidiaries' business (including reasonable and customary fees paid to
officers and directors, employees or consultants of the Company or any
Subsidiary or their respective affiliates for services rendered thereto
consistent with past practices) and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than they would obtain in a
comparable arms-length transaction with a Person not an Affiliate, (ii) under
written arrangements in existence as of the date of this Agreement and described
on Schedule 7.16 attached hereto, (iii) transactions exclusively between or
among the Company and any direct or indirect wholly-owned Guarantor or
exclusively between or among such direct or indirect wholly-owned Guarantors,
provided, such transactions are not otherwise prohibited by this Agreement, or
(iv) transactions pursuant to Section 7.04(c) and (d) hereof.
SECTION 7.17. Negative Pledge. Enter into any agreement, arrangement or
understanding with any Person (other than the Lenders pursuant to this Agreement
or any of the other Loan Documents) which prohibits or limits the ability of the
Company or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon its property, assets or revenues, whether now owned or hereafter
acquired.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. In the case of the happening of any of the
following events (each an "Event of Default"):
(a) failure to pay (i) the principal of any Loan as and when due and
payable or (ii) interest on any Loan, any reimbursement obligations with respect
to a drawing under any Letter of
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Credit, or any fees under this Agreement, as and when due and payable and, in
the case of this subclause (ii) only, such failure shall continue unremedied for
a period of three (3) Business Days;
(b) any representation or warranty made or deemed made in this
Agreement or any other Loan Document shall prove to be false or misleading in
any material respect when made or given or when deemed made or given;
(c) any report, certificate, financial statement or other
instrument furnished in connection with this Agreement or any other Loan
Document or the extensions of credit hereunder, shall prove to be false or
misleading in any material respect when made or given or when deemed made or
given;
(d) default shall be made in the due observance or performance
(beyond any applicable grace periods, if any) of any covenant, condition or
agreement of the Company or any Subsidiary of the Company to be performed (i)
pursuant to Article 6 of this Agreement (other than Section 6.03 and Section
6.04(b) thereof) and, in the case of this subclause (i) only, such default shall
continue unremedied for a period of thirty (30) consecutive days or (ii)
pursuant to any other provision of this Agreement or any other Loan Document;
(e) default in the performance or compliance in respect of any
agreement or condition relating to any Indebtedness of the Company or any
Guarantor in excess of $7,000,000 individually or in the aggregate (other than
the Notes), if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder or obligee thereof (or a trustee on behalf
of such holder or obligee) to cause such Indebtedness to become due prior to the
stated maturity thereof, or, any such Indebtedness shall not be paid when due
(beyond any applicable grace period);
(f) the Company or any Subsidiary of the Company shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other federal or state bankruptcy,
insolvency or similar law, (ii) consent to the institution of, or fail to
controvert in a timely and appropriate manner, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the employment of a
receiver, trustee, custodian, sequestrator or similar official for the Company
or any Subsidiary of the Company or for a substantial part of its property; (iv)
file an answer admitting the material allegations of a petition filed against it
in such proceeding, (v) make a general assignment for the benefit of creditors,
or (vi) take corporate action for the purpose of effecting any of the foregoing;
or the Company, or any Subsidiary of the Company, becomes unable or admits in
writing its inability or fails generally to pay its debts as they become due;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Company or any Subsidiary of the Company or of a
substantial part of their respective property, under Title 11 of the United
States Code or any other federal or state bankruptcy, insolvency or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or any Subsidiary of the Company or for a substantial
part of their property, or (iii) the winding-up or
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liquidation of the Company or any Subsidiary of the Company and such proceeding
or petition shall continue undismissed for 30 days or an order or decree
approving or ordering any of the foregoing shall continue unstayed and in effect
for 30 days;
(h) one or more orders, judgments or decrees for the payment
of money in excess of $5,000,000 in the aggregate shall be rendered against the
Company or any Subsidiary of the Company which is not covered by insurance and
the same shall not have been paid in accordance with such judgment, order or
decree or settlement and either (i) an enforcement proceeding shall have been
commenced by any creditor upon such judgment, order or decree, or (ii) there
shall have been a period of sixty (60) days during which a stay of enforcement
of such judgment, order or decree, by reason of pending appeal or otherwise, was
not in effect;
(i) any Plan shall fail to maintain the minimum funding
standard required under Section 412 of the Code for any Plan year or part
thereof or a waiver of such standard or extension of any amortization period is
applied for or granted under Section 412 of the Code, any Plan is terminated by
the Company, any Subsidiary of the Company or any ERISA Affiliate or the subject
of termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a Reportable Event shall have occurred with respect to a Plan or the
Company, any Subsidiary of the Company, or any ERISA Affiliate shall have
incurred a liability to or on account of a Plan under Section 515, 4062, 4063,
4201 or 4204 of ERISA, and there shall result from any such event or events the
imposition of a lien upon the assets of the Company or any Subsidiary of the
Company, the granting of a security interest on such assets, or a liability to
the PBGC or a Plan or a trustee appointed under ERISA or a penalty under Section
4971 of the Code;
(j) any material provision of any Loan Document shall for any
reason cease to be in full force and effect in accordance with its terms or the
Company or any Guarantor shall so assert in writing; or
(k) any Guarantor shall fail to perform or observe any term or
provision of such Guarantor's Guaranty or any representation or warranty made by
any Guarantor in connection with such Guarantor's Guaranty shall prove to have
been incorrect in any material respect when made or deemed made;
(l) a Change of Control shall have occurred.
then, at any time thereafter during the continuance of any such event, the
Administrative Agent may, and, upon the request of the Required Lenders, shall,
by written or telephonic notice to the Company, take either or both of the
following actions, at the same or different times, (a) terminate the Commitments
and (b) declare (i) the Notes, both as to principal and interest, (ii) an amount
equal to the Aggregate Letters of Credit Outstanding and (iii) all other
Obligations, to be forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes to the contrary notwithstanding;
provided, however, that if an event specified in Section 8.01(f) or (g) hereof
shall have occurred, the Commitments shall automatically terminate and interest,
principal and amounts referred to in the
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preceding clauses (i), (ii) and (iii) shall be immediately due and payable
without presentment, demand, protest, or other notice of any kind, all of which
are expressly waived, anything contained herein or in the Notes to the contrary
notwithstanding. With respect to all Letters of Credit that shall not have
expired or presentment for honor shall not have occurred, the Company shall
provide the Administrative Agent with Cash Collateral in an amount equal to the
aggregate undrawn amount of such Letters of Credit. Such Cash Collateral shall
be applied by the Administrative Agent to reimburse the Issuing Lender for
drawings under Letters of Credit for which the Issuing Lender has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Company at such time or, if the maturity
of the Loans has been accelerated, be applied to satisfy other Obligations, with
any amount remaining after such satisfactions to be returned to the Company or
paid to such other party as may legally be entitled to the same.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01. Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents together with such other powers as are
reasonably incidental thereto. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents and shall not be a trustee for any Lender, nor is the
Administrative Agent acting in a fiduciary capacity of any kind under this
Agreement or the other Loan Documents or in respect thereof or in respect of any
Lender. The Administrative Agent shall not be responsible to the Lenders for any
recitals, statements, representations or warranties contained in this Agreement
or the other Loan Documents, in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or the other
Loan Documents, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents or
any other document referred to or provided for herein or therein or for the
collectibility of the Loans or for the validity or effectiveness of any
assignment, mortgage, pledge, security agreement, financing statement, document
or instrument, or for the filing, recording, re-filing, continuing or
re-recording of any thereof or for any failure by the Company or any Guarantor
to perform any of its obligations hereunder or under the other Loan Documents.
The Administrative Agent may take all actions by itself and/or it may employ
agents and attorneys-in-fact, and shall not be responsible to any Lender, except
as to money or the securities received by it or its authorized agents, for the
negligence or misconduct of itself or its employees or of any such agents or
attorneys-in-fact, if such agents or attorneys-in-fact are selected by it with
reasonable care. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them hereunder or under the other Loan
Documents or in connection herewith or therewith, except for its or their own
gross negligence or willful misconduct.
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SECTION 9.02. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability to any
Lender for relying upon, any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or the other Loan
Documents, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under the other Loan
Documents in accordance with instructions signed by the Required Lenders, or
such other number of Lenders as is specified in Section 10.04 hereof, and such
instructions of the Required Lenders or other number of Lenders as aforesaid and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders.
SECTION 9.03. Events of Default. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or Event of Default
(other than the non-payment of principal of or interest on the Loans or of fees
to the extent the same is required to be paid to the Administrative Agent for
the account of the Lenders) unless the Administrative Agent has received notice
from a Lender or the Company specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default or
Event of Default, the Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall (subject to Section 9.07 hereof)
take such action with respect to such Default or Event of Default as shall be
directed by the Required Lenders, except as otherwise provided in Section 10.04
hereof; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but is not obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Lenders.
SECTION 9.04. Rights as a Lender. With respect to its Commitment and
the Loans made by it, the entity which is the Administrative Agent, in its
capacity as a Lender hereunder, shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include each entity which is the Administrative
Agent in its individual capacity. The Administrative Agent and its Affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to and generally engage in any kind of banking, trust or other
business with the Company or its Affiliates, as if it were not acting as the
Administrative Agent, and, except to the extent otherwise herein specifically
set forth, the Administrative Agent may accept fees and other consideration from
the Company or its Affiliates, for services in connection with this Agreement or
any of the other Loan Documents or otherwise without having to account for the
same to the Lenders.
SECTION 9.05. Indemnification. The Lenders shall indemnify the
Administrative Agent (to the extent not reimbursed by the Company under Section
10.03 hereof), ratably in accordance with the aggregate outstanding principal
amount of the Loans made by the Lenders (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments),
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for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as the Administrative Agent in any way
relating to or arising out of this Agreement or any of the other Loan Documents
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby and thereby (including, without limitation, the
costs and expenses which the Company is obligated to pay under Section 10.03
hereof or under the applicable provisions of any other Loan Document) or the
enforcement of any of the terms hereof or of any other Loan Document, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Administrative Agent.
SECTION 9.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or under the other Loan Documents. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Company. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or under the other Loan Documents,
or furnished to the Administrative Agent with counterparts or copies for the
Lenders, the Administrative Agent shall not have any duty or ability to provide
any Lender with any credit or other information concerning the affairs,
financial condition or business of the Company, which may come into the
possession of the Administrative Agent or any of its Affiliates.
SECTION 9.07. Failure to Act. Except for action expressly required of
the Administrative Agent hereunder or under any other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or thereunder unless it shall be indemnified to its
satisfaction by the Lenders against any and all liability (except gross
negligence and willful misconduct) and expense which may be incurred by it by
reason of taking or continuing to take any such action.
SECTION 9.08. Resignation of an Agent. Subject to the appointment and
acceptance of a successor Agent as provided in this Section 9.08, the
Syndication Agent, the Documentation Agent or the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, with the approval of the
Company provided no Default or Event of Default shall have occurred and then be
continuing, and such approval not to be unreasonably withheld, delayed or
conditioned, to appoint a successor to such Agent. If no successor shall have
been so appointed by the Required Lenders (with the approval of the Company) and
shall have accepted such appointment within 30 days after the resigning Agent
gives notice of its resignation, then the resigning Agent may, on behalf of the
67
Lenders, appoint a successor Agent which shall be a bank of similar standing
with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the resigning Agent, and the resigning Agent shall be discharged from
its duties and obligations hereunder as of such date. The fees payable by the
Company to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor.
After an Agent's resignation hereunder, the provisions of this Article and
Section 10.03 hereof shall continue in effect for the benefit of such resigning
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as an Agent.
SECTION 9.09. Sharing of Collateral and Payments. In the event that at
any time any Lender shall obtain payment in respect of the Obligations,
including any payment received by Fleet National Bank in connection with the
enforcement of the Dutch Pledge Agreement, or receive any collateral in respect
thereof, whether voluntarily or involuntarily, through the exercise of a right
of banker's lien, set-off or counterclaim against the Company or otherwise,
which results in it receiving more than its pro rata share of the aggregate
payments with respect to all of the Obligations (other than any payment
expressly provided hereunder to be distributed on other than a pro rata basis),
then such Lender shall be deemed to have simultaneously purchased from the other
Lenders a share in their Obligations so that the amount of the Obligations held
by each of the Lenders shall be pro rata; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from the
Lender which received the proportionate over-payment, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Company agrees, to the extent it may do so
under applicable law, that each Lender so purchasing a portion of another
Lender's Loan or participation in any Letter of Credit may exercise all rights
of payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Lender were the direct holder of such portion.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
telecopy), and unless otherwise expressly provided herein, shall be conclusively
deemed to have been received by a party hereto and to be effective on the day on
which delivered by hand to such party or one Business Day after being sent by
overnight mail to the address set forth below, or, in the case of telecopy
notice, when acknowledged as received, or if sent by registered or certified
mail, three (3) Business Days after the day on which mailed in the United
States, addressed to such party at such address:
(a) if to the Administrative Agent, at:
Fleet National Bank
300 Broad Hollow Road
Melville, New York 11747
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Attention: Relationship Manager - The Hain Celestial Corporation
Telecopy: (631) 547-7815
With a copy to:
Farrell Fritz, P.C.
EAB Plaza, West Tower
Uniondale, New York 11556
Attention: Robert C. Creighton, Esq.
Telecopy: (516) 227-0777
(b) if to the Company, at:
The Hain Celestial Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
Attention: Gary M. Jacobs
Telecopy: (516) 237-6277
With a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Roger Meltzer, Esq.
Telecopy: (212) 269-5420
(c) if to any Lender, to its address set forth in the signature page of
this Agreement and to the person so designated;
- and -
(d) as to each party at such other address as such party
shall have designated (i) if such party is a Lender,
by written notice to the Administrative Agent and the
Company, (ii) if such party is the Company, by
written notice to the Administrative Agent and to
each Lender, and (iii) if such party is the
Administrative Agent, by written notice to the
Company and each Lender, in each case, delivered in
accordance with the provisions of this Section 10.01.
SECTION 10.02. Effectiveness; Survival. This Agreement shall become
effective on the date on which all parties hereto shall have signed a
counterpart copy hereof and shall have delivered the same to the Administrative
Agent. All representations and warranties made herein and in the other Loan
Documents and in the certificates delivered pursuant hereto or thereto shall
survive the making by the Lenders of the Loans and the issuance by the Issuing
Lender of Letters of Credit,
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in each case, as herein contemplated and the execution and delivery to the
Lenders of the Notes evidencing the Loans and shall continue in full force and
effect so long as the Obligations hereunder are outstanding and unpaid and the
Commitments are in effect. The obligations of the Company pursuant to Section
3.07, Section 3.08, Section 3.10, Section 6.13 and Section 10.03 hereof shall,
notwithstanding anything herein to the contrary, survive termination of this
Agreement and payment of the Obligations.
SECTION 10.03. Expenses. The Company agrees (a) to indemnify, defend
and hold harmless the Administrative Agent, the Issuing Lender and each Lender
and their respective officers, directors, employees, and affiliates (each, an
"indemnified person") from and against any and all losses, claims, damages,
liabilities or judgments to which any such indemnified person may be subject and
arising out of or in connection with the Loan Documents, the financings
contemplated hereby, the use of any proceeds of such financings or any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any of such indemnified persons is a party thereto, and to
reimburse each of such indemnified persons upon demand for any reasonable legal
or other expenses incurred in connection with the investigation or defending any
of the foregoing; provided that the foregoing indemnity will not, as to any
indemnified person, apply to losses, claims, damages, liabilities, judgments or
related expenses to the extent arising from the wilful misconduct or gross
negligence of such indemnified person, (b) to pay or reimburse the
Administrative Agent for all its out-of-pocket costs and reasonable expenses
incurred in connection with the preparation and execution of and any amendment,
supplement or modification to this Agreement, the Notes any other Loan
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation of the transactions contemplated hereby and thereby,
including without limitation, the reasonable fees and disbursements of Farrell
Fritz, P.C., counsel to the Administrative Agent, and (c) to pay or reimburse
each Lender and the Administrative Agent for all their costs and expenses
incurred in connection with the enforcement and preservation of any rights under
this Agreement, the Notes, the other Loan Documents, and any other documents
prepared in connection herewith or therewith, including, without limitation, the
reasonable fees and disbursements of counsel (including, without limitation,
in-house counsel) to the Administrative Agent and to the several Lenders,
including all such out-of-pocket expenses incurred during any work-out,
restructuring or negotiations in respect of the Obligations.
SECTION 10.04. Amendments and Waivers. With the written consent of the
Required Lenders, the Administrative Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or the Notes or any of the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Company hereunder or thereunder, and with the written consent of the
Required Lenders the Administrative Agent on behalf of the Lenders may execute
and deliver to the Company a written instrument waiving, on such terms and
conditions as the Administrative Agent or the Required Lenders may specify in
such instrument, any of the requirements of this Agreement or the Notes or any
of the other Loan Documents or any Default or Event of Default; provided,
however, that no such waiver and no such amendment, or supplement or
modification shall (a) extend the maturity of any Note or any installment
thereof; (b) reduce the rate or extend the time of payment of interest on any
Note or any fees payable to the Lenders hereunder; (c) reduce the
70
principal amount of any Note or the amount of any reimbursement due in respect
of any Letter of Credit; (d) amend, modify or waive any provision of this
Section 10.04; (e) reduce the percentage specified in the definition of Required
Lenders or amend or modify any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination granting consent hereunder; (f) consent to the assignment
or transfer by the Company of any of its rights or obligations under this
Agreement; (g) except as expressly permitted pursuant to this Agreement or any
other Loan Document release any collateral security granted to the
Administrative Agent, if any; (h) release any Guarantor from its Guaranty, or
limit any Guarantor's liability with respect to its Guaranty; (i) amend the
definition of Acceptable Acquisition; (j) amend the terms of Section
7.06(g)(iii), or (k) permit any Letter of Credit issued hereunder to expire on
or after the Revolving Credit Facility A Commitment Termination Date, in each
case specified in clauses (a) through (k) above without the written consent of
all the Lenders; and provided, further, that no such waiver and no such
amendment, supplement or modification shall (i) amend, modify, supplement or
waive any provision of Article IX with respect to the Administrative Agent
without the written consent of the Administrative Agent or (ii) increase the
amount of any Lender's Commitment without the written consent of such Lender.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Company, the
Lenders, the Administrative Agent and all future holders of the Notes.
SECTION 10.05. Successors and Assigns; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement or any other Loan
Document without the prior written consent of each Lender and any such
assignment without such consent shall be null and void.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other financial institutions ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender hereunder. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement to the other parties under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Note for all purposes under this Agreement, and the Company and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
The Company agrees that each Participant shall be entitled to the benefits of
Sections 3.07, 3.08 and 3.10 with respect to its participation in the
Commitments and in the Loans and Letters of Credit outstanding from time to
time; provided, however, that no Participant shall be entitled to receive any
greater amount pursuant to such Sections than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred. No Participant shall have the right to consent to any amendment to, or
waiver of, any provision of this Agreement, except the transferor Lender may
provide in its agreement with the
71
Participant that such Lender will not, without the consent of the Participant,
agree to any amendment or waiver described in clause (a) through clause (h) of
Section 10.04.
(c) Subject to the last sentence of this paragraph (c) any Lender may,
in the ordinary course of its commercial banking business and in accordance with
applicable law, at any time sell to any Lender or any domestic banking affiliate
thereof, and, with the consent of the Administrative Agent, and, so long as no
Default or Event of Default shall have occurred and be continuing, the Company
(which in each case shall not be unreasonably withheld, delayed or conditioned),
to one or more additional banks or financial institutions ("Purchasing Lenders")
all or any part of its rights and obligations under this Agreement and the Notes
pursuant to an Assignment and Acceptance Agreement, executed by such Purchasing
Lender, such transferor Lender and the Administrative Agent (and, in the case of
an Assignment and Acceptance Agreement relating to a Purchasing Lender that is
not then a Lender or a domestic banking affiliate thereof, also executed by the
Company), and delivered to the Administrative Agent for its acceptance. Upon
such execution, delivery and acceptance from and after the effective date
specified in such Assignment and Acceptance Agreement, (i) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance Agreement, have the rights and obligations of a Lender
hereunder with Commitments as set forth therein and (ii) the transferor Lender
thereunder shall, to the extent provided in such Assignment and Acceptance
Agreement, be released from its obligations under this Agreement arising after
such transfer (and, in the case of an Assignment and Acceptance Agreement
covering all or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to be a
party hereto except as to Sections 3.07, 3.08, 3.10 and 10.03 for the period
prior to the effective date). Such Assignment and Acceptance Agreement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Lender and the resulting adjustment
of Commitment Proportions arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
or in respect of this Agreement and the Notes. On or prior to the effective date
specified in such Assignment and Acceptance Agreement, the Company, at its own
expense, shall execute and deliver to the Administrative Agent, in exchange for
each surrendered Note, new Notes to the order of such Purchasing Lender in an
amount equal to the Commitments assumed by it pursuant to such Assignment and
Acceptance Agreement and, if the transferor Lender has retained any Commitment
hereunder, a new Note to the order of the transferor Lender in an amount equal
to such Commitment retained by it hereunder. Such new Notes shall be in a
principal amount equal to the principal amount of such surrendered Notes, shall
be dated the effective date specified in the Assignment and Acceptance Agreement
and shall otherwise be in the form of the Notes replaced thereby. The Notes
surrendered by the transferor Lender shall be returned by the Administrative
Agent to the Company marked "cancelled". Anything in this Section 10.05 to the
contrary notwithstanding, (i) no transfer to a Purchasing Lender shall be made
pursuant to this paragraph (c), if (x) such transfer by any one transferor
Lender to any one Purchasing Lender (other than a Purchasing Lender which is a
Lender hereunder prior to such transfer) is in respect of less than $5,000,000
of the Commitments of such transferor Lender or (y) after giving effect to such
transfer the amount held by any transferor Lender would be less than $5,000,000
and (ii) each transfer to a Purchasing Lender shall be made in the same pro-rata
portion with respect to the Revolving Credit Facility A Commitment and the
Revolving Credit Facility B Commitment.
72
(d) The Administrative Agent shall maintain at its address referred to
in Section 10.01 a copy of each Assignment and Acceptance Agreement delivered to
it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the commitments of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of demonstrable error and the Company, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loans recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance Agreement executed
by a transferor Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an Affiliate thereof, by the Company)
together with payment by the Purchasing Lender to the Administrative Agent of a
registration and processing fee of $3,500 if the Purchasing Lender is not a
Lender prior to the execution of an Assignment and Acceptance Agreement and
$2,500 if the Purchasing Lender is a Lender prior to the execution of an
Assignment and Acceptance Agreement, the Administrative Agent shall (i) accept
such Assignment and Acceptance Agreement, (ii) record the information contained
therein in the Register, and (iii) give prompt notice of such acceptance and
recordation to the Lenders and the Company.
(f) The Company authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession concerning the Company
and its Affiliates which has been delivered to such Lender by or on behalf of
the Company pursuant to this Agreement or which has been delivered to such
Lender by the Company in connection with such Lender's credit evaluation of the
Company and its Subsidiaries prior to entering into this Agreement.
(g) If, pursuant to this Section 10.05, any interest in this Agreement,
a participation agreement, or any Note is transferred to any transferee which is
organized under the laws of any jurisdiction other than the United States or any
State thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, (i) to represent to the transferor
Lender (for the benefit of the transferor Lender, the Administrative Agent and
the Company) that under applicable law and treaties no taxes will be required to
be withheld by the Administrative Agent, the Company, or the transferor Lender
with respect to any payments to be made to such Transferee in respect of the
Loans, (ii) to furnish to the Administrative Agent, the transferor Lender and
the Company either U.S. Internal Revenue Service Form W-8EC1 or U.S. Internal
Revenue Service Form W-8BEN (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the Administrative Agent, the
transferor Lender and the Company) to provide the Administrative Agent, the
transferor Lender and the Company a new Form W-8EC1 or Form W-8BEN upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
73
(h) Any Lender may at any time pledge or assign or grant a security
interest in all or any part of its rights under this Agreement and the other
Loan Documents, including any portion of its Notes, to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341, provided that no such assignment shall release the
transferor Lender from its Commitments or its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party to this
Agreement.
SECTION 10.06. No Waiver; Cumulative Remedies. Neither any failure nor
any delay on the part of any Lender, the Issuing Lender or the Administrative
Agent in exercising any right, power or privilege hereunder or under any Note or
any other Loan Document shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any other
right, power or privilege. The rights, remedies, powers and privileges herein
provided or provided in the other Loan Documents are cumulative and not
exclusive of any rights, remedies powers and privileges provided by law.
SECTION 10.07. APPLICABLE LAW. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
SECTION 10.08. SUBMISSION TO JURISDICTION; JURY WAIVER. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT IN
THE STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF NASSAU OR COUNTY OF SUFFOLK
IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE COMPANY HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH FEDERAL OR
STATE COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT OR INSTRUMENT
REFERRED TO HEREIN OR THEREIN OR THE SUBJECT MATTER HEREOF THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH FEDERAL OR STATE COURTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE COMPANY AGREES NOT TO (i) SEEK AND HEREBY WAIVES THE RIGHT
TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION
OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT OR (ii) ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM IS A COMPULSORY OR MANDATORY COUNTERCLAIM UNDER
APPLICABLE LAWS GOVERNING CIVIL PROCEDURE.
74
THE COMPANY AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR
REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS AGREEMENT OR ANY
METHOD AUTHORIZED BY THE LAWS OF NEW YORK. EACH PARTY HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING THERETO, AND AGREES
THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY
LAW, THE COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT, THE
ISSUING LENDER OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDERS TO ENTER INTO THIS
AGREEMENT AND TO MAKE THE LOANS AND OTHER EXTENSIONS OF CREDIT.
SECTION 10.09. Severability. In case any one or more of the provisions
contained in this Agreement, any Note or any other Loan Document should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
SECTION 10.10. Right of Setoff. The Company and the Guarantors hereby
grant to the Administrative Agent, the Issuing Lender, each Lender and each
Affiliate of each Lender, a continuing lien, security interest and right of
setoff as security for all liabilities and obligations to the Administrative
Agent, the Issuing Lender and each Lender, whether now existing or hereafter
arising, upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of the
Administrative Agent, the Issuing Lender, any Lender, any Affiliate of such
Lender or any entity under the control of FleetBoston Financial Corporation and
its successors or assigns or in transit to any of them. At any time, without
demand or notice (any such notice being expressly waived by the Company), the
Administrative Agent, the Issuing Lender, each Lender and each Affiliate of each
Lender may set off the same or any part thereof and apply the same to any
liability or obligation of the Company or any Guarantor even though unmatured
and regardless of the adequacy of any other collateral securing this Agreement.
ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT, THE ISSUING LENDER, EACH
LENDER OR ANY AFFILIATE OF EACH LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THIS AGREEMENT, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH
75
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
SECTION 10.11. Confidentiality. The Administrative Agent and each
Lender agrees to keep confidential all non-public information, materials and
documents furnished by the Company to the Administrative Agent and the Lenders
pursuant to this Agreement (the "Confidential Information"). Notwithstanding the
foregoing, such party shall be permitted to disclose Confidential Information
(a) to such of its officers, directors, employees, agents, representatives and
professional advisors in any of the transactions contemplated by, or the
administration of, this Agreement; (b) to the extent required by applicable laws
and regulations or by any subpoena or similar legal process, or requested by any
governmental agency or authority; (c) to the extent such Confidential
Information (i) becomes publicly available other than as a result of a breach of
this Section 10.11 by the disclosing party, or (ii) becomes available to such
party on a non-confidential basis from a source other than the Company or its
Subsidiaries which to such party's knowledge is not prohibited from disclosing
such Confidential Information to such party by a contractual or other legal
obligation; (d) to the extent the Company or any of its Subsidiaries shall have
consented to such disclosure in writing; or (e) to any prospective transferee or
participant in connection with any contemplated transfer of the Notes or any
interest therein provided such transferee or participant agrees to treat the
Confidential Information in a manner consistent with this Section 10.11. Nothing
herein shall prohibit the disclosure of Confidential Information in connection
with any litigation or where such disclosure is pursuant to applicable laws,
regulations, court order or similar legal process; provided, however, in the
event that such party is requested or required by law to disclose any of the
Confidential Information, such party shall provide the Company with written
notice, unless notice is prohibited by law, of any such request or requirement
so that the Company may seek a protective order or other appropriate remedy;
provided that no such notification shall be required in respect of any
disclosure to regulatory authorities having jurisdiction over such party.
SECTION 10.12. Provisions Regarding Syndication Agent and Documentation
Agent. The Syndication Agent and the Documentation Agent shall have no duties or
responsibilities hereunder.
SECTION 10.13. Headings. Section headings used herein are for convenience
of reference only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 10.14. Construction. This Agreement is the result of
negotiations between, and has been reviewed by, each of the Company, the
Administrative Agent, the Lenders and their respective counsel. Accordingly,
this Agreement shall be deemed to be the product of each party hereto, and no
ambiguity shall be construed in favor of or against either the Company, the
Administrative Agent, or any Lender.
76
SECTION 10.15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute one and the same instrument.
SECTION 10.16. Special Provision with Respect to Dutch Pledge
Agreement. The Company, each of the Lenders and the Administrative Agent agree
that for purposes of the Dutch Pledge Agreement only, the Company shall
undertake (i) to pay to Fleet National Bank, acting in its own capacity and not
as agent or trustee ("FNB"), an amount equal to the amount of all Obligations of
the Company which are from time to time due and payable to the Agents or the
Lenders hereunder or under any other Loan Document at the same time as such
Obligations are or shall be due and payable, and (ii) to observe and perform
with regard to FNB all other obligations and liabilities of the Company existing
or arising under this Agreement and the other Loan Documents in connection
therewith (such payment undertaking and the obligations and liabilities of the
Company to FNB resulting therefrom, hereinafter, the "Parallel Debt").
The Parallel Debt shall (i) constitute undertakings, obligations and
liabilities of the Company (the "Parallel Debtor") to FNB, which, for purposes
of enforcing the Dutch Pledge Agreement only, are separate and independent from,
and without prejudice to, the corresponding obligations and liabilities of the
Company to the Agents and the Lenders under this Agreement and the other Loan
Documents, and (ii) represent FNB's own independent claims to receive payment or
performance, as the case may be, of the Parallel Debt from the Parallel Debtor,
provided that the total amount which may become due under the Parallel Debt
shall not exceed the total amount which may become due under this Agreement or
any other Loan Documents.
Notwithstanding the foregoing, provided that the foregoing payment is
not subsequently avoided or reduced by virtue of any provisions or enactments
relating to bankruptcy, insolvency, preference, liquidation or similar laws of
general application:
(a) the total amount due and payable under the Parallel Debt
shall be decreased to the extent the Company shall have paid any amounts to the
Administrative Agent or the Lenders or any of them to reduce the outstanding
Obligations of the Company owing to the Agents or the Lenders under this
Agreement or any other Loan Document; and
(b) the total amount due and payable under this Agreement and
the other Loan Documents shall be decreased to the extent the Parallel Debtor
shall have paid any amounts to FNB to reduce the outstanding obligations of the
Company under the Parallel Debt, or FNB shall have otherwise received monies in
payment of the Parallel Debt, as if said amounts were received directly in
payment of the outstanding Obligations of the Company under this Agreement or
any other Loan Document.
77
[the next page is the signature page]
FFDOCS1\292743.13
78
IN WITNESS WHEREOF, the Company, the Administrative Agent and the
Lenders have caused this Agreement to be duly executed by their duly authorized
officers, as of the day and year first above written.
THE HAIN CELESTIAL GROUP, INC.
By:____________________________
Name: Gary M. Jacobs
Title: Chief Financial Officer
79
Revolving Credit Facility FLEET NATIONAL BANK,
-------------------------
A Commitment: $27,187,500 as Administrative Agent,
as a Lender, as Swingline Lender and as
an Issuing Lender
Revolving Credit Facility
B Commitment: $17,812,500
By:
------------------------------------------------
Name: Kevin M. Brown
Title: Senior Vice President
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
Fleet National Bank
300 Broad Hollow Road
Melville, New York 11747
Attention: Relationship Manager -
The Hain Celestial Group, Inc.
Telephone: (631) 547-7833
Telecopy: (631) 547-7815
Address for Notices:
Fleet National Bank
300 Broad Hollow Road
Melville, New York 11747
Attention: Relationship Manager -
The Hain Celestial Group, Inc.
Telephone: (631) 547-7833
Telecopy: (631) 547-7815
80
Revolving Credit Facility SUNTRUST BANK,
A Commitment: $21,145,833 as Syndication Agent and
------------
as a Lender
Revolving Credit Facility
B Commitment: $13,854,167
By:
-----------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
SunTrust Bank
25 Park Place
MC 1941
Atlanta, Georgia 30302
Attention: Robert Matthews
Telephone: (404) 588-8038
Telecopy: (404) 230-1940
Address for Notices:
SunTrust Bank
303 Peachtree Street, NE
3rd Floor
Atlanta, Georgia 30308
Attention: Michael Pugsley
Telephone: (404) 724-3635
Telecopy: (404) 230-5305
81
Revolving Credit Facility HSBC BANK USA,
A Commitment: $21,145,833 as Documentation Agent and
------------
as a Lender
Revolving Credit Facility
B Commitment: $13,854,167
By:
-----------------------------------------------
Name: Gary Sarro
Title: Vice President
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
HSBC Bank USA
534 Broad Hollow Road
Melville, New York 11747
Attention: Gary Sarro, Vice President
Telephone: (631) 752-4367
Telecopy: (631) 752-4340
Address for Notices:
HSBC Bank USA
534 Broad Hollow Road
Melville, New York 11747
Attention: Gary Sarro, Vice President
Telephone: (631) 752-4367
Telecopy: (631) 752-4340
82
Revolving Credit Facility FIRST PIONEER FARM CREDIT, ACA,
-------------------------
A Commitment: $18,125,000 as a Lender
Revolving Credit Facility
B Commitment: $11,875,000
By:
-----------------------------------------------
Name: James M. Papai
Title: Vice President
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
First Pioneer Farm Credit, ACA
174 South Road
Enfield, Connecticut 06082
Attention: James D. Miller, Senior
Vice President - Finance
Telephone: (860) 741-4380
Telecopy: (860) 253-5565
Address for Notices:
First Pioneer Farm Credit, ACA
174 South Road
Enfield, Connecticut 06082
Attention: James M. Papai, Vice President
Telephone: (860) 741-4380
Telecopy: (860) 253-5565
83
Revolving Credit Facility THE BANK OF NEW YORK,
-------------------------
A Commitment: $9,062,500 as a Lender
Revolving Credit Facility
B Commitment: $5,937,500
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
The Bank of New York
1401 Franklin Avenue
Garden City, New York 11530
Attention: Edward P. Nallan
Telephone: (516) 294-2269
Telecopy: (516) 294-2055
Address for Notices:
The Bank of New York
1401 Franklin Avenue
Garden City, New York 11530
Attention: Edward P. Nallan
Telephone: (516) 294-2269
Telecopy: (516) 294-2055
84
Revolving Credit Facility KEYBANK NATIONAL ASSOCIATION,
-------------------------
A Commitment: $15,104,167 as a Lender and as an Issuing Lender
------------
Revolving Credit Facility
B Commitment: $9,895,833
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
KeyBank National Association
4910 Tiederman Road
Brooklyn, Ohio 44144
Attention: Donna Gilchrist
Telephone: (216) 813-1259
Telecopy: (216) 813-7393
Address for Notices:
KeyBank National Association
711 Westchester Avenue
White Plains, New York 10604
Attention: Brendan Sachtjen, Senior
Vice President
Telephone: (914) 681-8301
Telecopy: (914) 681-8350
85
Revolving Credit Facility EUROPEAN AMERICAN BANK,
A Commitment: $9,062,500 as a Lender
Revolving Credit Facility
B Commitment: $5,937,500
By:
------------------------------------------------
Name: Peter J. McGovern
Title: Vice President
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
European American Bank
335 Madison Avenue
New York, New York 10017
Attention: Kristen Burke
Telephone: (212) 503-2862
Telecopy: (212) 503-2667
Address for Notices:
European American Bank
335 Madison Avenue
New York, New York 10017
Attention: Kelly Miller
Telephone: (212) 503-2920
Telecopy: (212) 503-2667
86
Revolving Credit Facility NATIONAL CITY BANK OF OHIO,
-------------------------
A Commitment: $9,062,500 as a Lender
Revolving Credit Facility
B Commitment: $5,937,500
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
National City Bank
1 South Broad Street
Philadelphia, Pennsylvania 19107
Attention: Marissa Paino / Tara Handforth
Telephone: (267) 256-4154 / (267) 256-4044
Telecopy: (267) 256-4001
Address for Notices:
National City Bank
1 South Broad Street
Philadelphia, Pennsylvania 19107
Attention: Marissa Paino / Tara Handforth
Telephone: (267) 256-4154 / (267) 256-4044
Telecopy: (267) 256-4001
87
Revolving Credit Facility KBC BANK N.V.,
A Commitment: $6,041,667 as a Lender
Revolving Credit Facility
B Commitment: $3,958,333
By:
------------------------------------------------
Name:
Title:
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans:
KBC Bank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Attention: Rose Pagan
Telephone: (212) 541-0657
Telecopy: (212) 956-5581
Lending Office for Adjusted Libor Loans:
KBC Bank N.V., Grand Cayman Branch
125 West 55th Street
New York, New York 10019
Attention: Rose Pagan
Telephone: (212) 541-0657
Telecopy: (212) 956-5581
Address for Notices:
KBC Bank N.V.
125 West 55th Street
New York, New York 10019
Attention: Robert Surdam
Telephone: (212) 541-0704
Telecopy: (212) 541-0793
88
Revolving Credit Facility COBANK, ACB,
A Commitment: $6,041,667 as a Lender
Revolving Credit Facility
B Commitment: $3,958,333
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
CoBank, ACB
5500 S. Quebec Street
Greenwood Village, Colorado 80111
Attention: Darla Moran
Telephone: (303) 740-4033
Telecopy: (303) 740-4021
Address for Notices:
CoBank, ACB
5500 S. Quebec Street
Greenwood Village, Colorado 80111
Attention: Brian Klatt, Vice President
Telephone: (303) 740-6511
Telecopy: (303) 694-5830
89
Revolving Credit Facility BANK LEUMI USA,
A Commitment: $3,020,833 as a Lender
Revolving Credit Facility
B Commitment: $1,979,167
By:
------------------------------------------------
Name:
Title:
Lending Office for Base Rate Loans and for
Adjusted Libor Loans:
Bank Leumi USA
579 Fifth Avenue
New York, New York 10017
Attention: Joung Hee Hong
Telephone: (212) 407-4469
Telecopy: (212) 407-4317
Address for Notices:
Bank Leumi USA
579 Fifth Avenue
New York, New York 10017
Attention: Joung Hee Hong
Telephone: (212) 407-4469
Telecopy: (212) 407-4317
90
SCHEDULE I
Subsidiaries and Affiliates
Name of Entity State of Owners of Shares or Interests
Incorporation Names and Percentages
or Formation of Shares Owned
91
SCHEDULE II
Existing Liens
92
SCHEDULE III
Existing Indebtedness
93
SCHEDULE IV
Existing Guarantees
94
SCHEDULE V
Credit Arrangements
95
SCHEDULE VI
Existing Letters of Credit
Type Face Amount Issuance Date Expiration Date
96
SCHEDULE 4.06(a)
97
SCHEDULE 4.08
98
SCHEDULE 7.16
FFDOCS1\292743.13
99
EXHIBIT A
REVOLVING CREDIT FACILITY A NOTE
$________________ Nassau County, New York
March ___, 2001
FOR VALUE RECEIVED, THE HAIN CELESTIAL GROUP, INC., a Delaware
corporation (the "Company"), promises to pay to the order of
[_______________________] (the "Lender"), on or before the Revolving Credit
Facility A Commitment Termination Date, the principal amount of
[_____________________] DOLLARS ($______________), or, if less, the unpaid
principal amount of all Revolving Credit Facility A Loans made by the Lender to
the Company under the Credit Agreement referred to below.
The Company promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid
in full at the rates and at the times which shall be determined, and to make
principal repayments on this Note at the times which shall be determined, in
accordance with the provisions of the Credit Agreement referred to below.
This Note is one of the "Revolving Credit Facility A Notes"
referred to in the Credit Agreement, dated as of March 29, 2001, by and among
the Company, Fleet National Bank, as Administrative Agent , SunTrust Bank, as
Syndication Agent, HSBC Bank USA, as Documentation Agent, and the various
Lenders (including the Lender) as are, or may from time to time become, parties
thereto (as the same may be amended, restated, modified or supplemented from
time to time, the "Credit Agreement") and is issued pursuant to and entitled to
the benefits of the Credit Agreement to which reference is hereby made for a
more complete statement of the terms and conditions under which the Revolving
Credit Facility A Loans evidenced hereby were made and are to be repaid.
Capitalized terms used herein without definition shall have the meanings set
forth in the Credit Agreement.
Each of the Lender and any subsequent holder of this Note
agrees, by its acceptance hereof, that before transferring this Note it shall
record the date, Type and amount of each Revolving Credit Facility A Loan and
the date and amount of each payment or prepayment of principal of each Revolving
Credit Facility A Loan previously made hereunder on the grid schedule annexed to
this Note; provided, however, that the failure of the Lender or holder to set
forth such Revolving Credit Facility A Loans, payments and other information on
the attached grid schedule shall not in any manner affect the obligation of the
Company to repay the Revolving Credit Facility A Loans made by the Lender in
accordance with the terms of this Note.
This Note is subject to prepayment pursuant to Section 3.03 of
the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note together with all accrued but unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in immediately
available funds at the office of Fleet National Bank, as Administrative Agent
for the Lenders under the Credit Agreement, located at 300 Broad Hollow Road,
Melville, New York 11747 or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Company and endorsers of this Note waive presentment,
diligence, demand, protest, and notice of any kind in connection with this Note.
THIS NOTE 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 LAW.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
THE HAIN CELESTIAL GROUP, INC.
By:__________________________
Name:
Title:
SCHEDULE
Date Principal Type Applicable Amount of Notation
of Amount of of Interest Interest Principal Made
Loan Loan Loan Rate Period Paid By
---- ----------- ---- --------- -------- ------------ ---------
3
EXHIBIT B
REVOLVING CREDIT FACILITY B NOTE
$________________ Nassau County, New York
March ___, 2001
FOR VALUE RECEIVED, THE HAIN CELESTIAL GROUP, INC., a Delaware
corporation (the "Company"), promises to pay to the order of
[_______________________] (the "Lender"), on or before the Revolving Credit
Facility B Commitment Termination Date, the principal amount of
[_____________________] DOLLARS ($______________), or, if less, the unpaid
principal amount of all Revolving Credit Facility B Loans made by the Lender to
the Company under the Credit Agreement referred to below.
The Company promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid
in full at the rates and at the times which shall be determined, and to make
principal repayments on this Note at the times which shall be determined, in
accordance with the provisions of the Credit Agreement referred to below.
This Note is one of the "Revolving Credit Facility B Notes"
referred to in the Credit Agreement, dated as of March 29, 2001, by and among
the Company, Fleet National Bank, as Administrative Agent, SunTrust Bank, as
Syndication Agent, HSBC Bank USA, as Documentation Agent, and the various
Lenders (including the Lender) as are, or may from time to time become, parties
thereto (as the same may be amended, restated, modified or supplemented from
time to time, the "Credit Agreement") and is issued pursuant to and entitled to
the benefits of the Credit Agreement to which reference is hereby made for a
more complete statement of the terms and conditions under which the Revolving
Credit Facility B Loans evidenced hereby were made and are to be repaid.
Capitalized terms used herein without definition shall have the meanings set
forth in the Credit Agreement.
Each of the Lender and any subsequent holder of this Note
agrees, by its acceptance hereof, that before transferring this Note it shall
record the date, Type and amount of each Revolving Credit Facility B Loan and
the date and amount of each payment or prepayment of principal of each Revolving
Credit Facility B Loan previously made hereunder on the grid schedule annexed to
this Note; provided, however, that the failure of the Lender or holder to set
forth such Revolving Credit Facility B Loans, payments and other information on
the attached grid schedule shall not in any manner affect the obligation of the
Company to repay the Revolving Credit Facility B Loans made by the Lender in
accordance with the terms of this Note.
This Note is subject to prepayment pursuant to Section 3.03 of
the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note together with all accrued but unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in immediately
available funds at the office of Fleet National Bank, as Administrative Agent
for the Lenders under the Credit Agreement, located at 300 Broad Hollow Road,
Melville, New York 11747 or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Company and endorsers of this Note waive presentment,
diligence, demand, protest, and notice of any kind in connection with this Note.
THIS NOTE 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 LAW.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
THE HAIN CELESTIAL GROUP, INC.
By:__________________________
Name:
Title:
[PG NUMBER]
SCHEDULE
Date Principal Type Applicable Amount of Notation
of Amount of of Interest Interest Principal Made
Loan Loan Loan Rate Period Paid By
---- ----------- ---- --------- -------- ------------- --------
3
EXHIBIT C
SWINGLINE NOTE
$5,000,000 Nassau County, New York
March ___, 2001
FOR VALUE RECEIVED, THE HAIN CELESTIAL GROUP, INC., a Delaware
corporation (the "Company"), promises to pay to the order of FLEET NATIONAL BANK
(the "Lender"), on or before the Revolving Credit Facility A Commitment
Termination Date, the principal amount of FIVE MILLION DOLLARS ($5,000,000) or,
if less, the unpaid principal amount of all Swingline Loans made by the Lender
to the Company under the Credit Agreement referred to below.
The Company promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid
in full at the rates and at the times which shall be determined, and to make
principal repayments on this Note at the times which shall be determined, in
accordance with the provisions of the Credit Agreement referred to below.
This Note is the "Swingline Note" referred to in the Credit
Agreement, dated as of March 29, 2001, by and among the Company, Fleet National
Bank, as Administrative Agent, SunTrust Bank , as Syndication Agent, HSBC Bank
USA, as Documentation Agent, and the various Lenders (including the Lender) as
are, or may from time to time become, parties thereto (as the same may be
amended, restated, modified or supplemented from time to time, the "Credit
Agreement") and is issued pursuant to and entitled to the benefits of the Credit
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions under which the Swingline Loans evidenced hereby were made
and are to be repaid. Capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement.
Each of the Lender and any subsequent holder of this Note
agrees, by its acceptance hereof, that before transferring this Note it shall
record the date, Type and amount of each Swingline Loan and the date and amount
of each payment or prepayment of principal of each Swingline Loan previously
made hereunder on the grid schedule annexed to this Note; provided, however,
that the failure of the Lender or holder to set forth such Swingline Loans,
payments and other information on the attached grid schedule shall not in any
manner affect the obligation of the Company to repay the Swingline Loans made by
the Lender in accordance with the terms of this Note.
This Note is subject to prepayment pursuant to Section 3.03 of
the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note together with all accrued but unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in immediately
available funds at the office of Fleet National Bank, located at 300 Broad
Hollow Road, Melville, New York 11747 or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Company and endorsers of this Note waive presentment,
diligence, demand, protest, and notice of any kind in connection with this Note.
THIS NOTE 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 LAW.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
THE HAIN CELESTIAL GROUP, INC.
By:__________________________
Name:
Title:
[PG NUMBER]
SCHEDULE
Date Principal Type Applicable Amount of Notation
of Amount of of Interest Interest Principal Made
Loan Loan Loan Rate Period Paid By
---- --------- ---- ---- ---------- ---------- ---------
15
EXHIBIT D
[RESERVED]
EXHIBIT E
GUARANTY
THIS GUARANTY is entered into as of the ____ day of March, 2001, by
EACH OF THE UNDERSIGNED (each a "Guarantor" and, collectively, the "Guarantors")
in favor of and for the benefit of the Administrative Agent and the Lenders, as
defined in the Credit Agreement referred to below.
RECITALS
A. Pursuant to a Credit Agreement, dated as of March 29, 2001, by and
among The Hain Celestial Group, Inc. (the "Company"), Fleet National Bank, as
Administrative Agent, SunTrust Bank, as Syndication Agent, HSBC Bank USA, as
Documentation Agent, and the various Lenders as are or may from time to time
become parties thereto (as the same may be amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), the Company will
receive Loans and other financial accommodations from the Agents and Lenders and
will incur Obligations.
B. The Guarantors, being members of a group of entities affiliated with
the Company and being engaged in related businesses will receive direct and
indirect benefits from such Loans and other financial accommodations.
C. Each Guarantor wishes to grant the Agents and Lenders security and
assurance in order to secure the payment and performance by the Company of all
of its present and future Obligations, and, to that effect, to guaranty the
Obligations as set forth herein.
Accordingly, each Guarantor hereby agrees as follows:
1. Guaranty.
(a) Each Guarantor, jointly and severally, absolutely,
unconditionally and irrevocably guarantees to the Agents and the Lenders the
full and punctual payment by the Company, when due, whether at the stated due
date, by acceleration or otherwise, of all Obligations of the Company, howsoever
created, arising or evidenced, voluntary or involuntary, whether direct or
indirect, absolute or contingent now or hereafter existing or owing to the
Agents or the Lenders under the Credit Agreement (collectively, the "Guaranteed
Obligations"). This Guaranty is an absolute, unconditional, irrevocable and
continuing guaranty of payment and not of collection of the Guaranteed
Obligations and includes Guaranteed Obligations arising from successive
transactions which shall either continue such Guaranteed Obligations or from
time to time renew such Guaranteed Obligations after the same have been
satisfied. This Guaranty is in no way conditioned upon any attempt to collect
from the Company or any other Person or upon any other event or contingency, and
shall be binding upon and enforceable against each Guarantor without regard to
the validity or enforceability of the Credit Agreement, the Notes or any other
Loan Document or of any term of any thereof. If for any reason the Company shall
fail or be unable to duly and punctually pay any of the Guaranteed Obligations
(including, without limitation, amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. ss. 362(a)), each Guarantor will forthwith pay the same, in cash,
immediately upon demand.
(b) In the event the Credit Agreement, any Note or any other
Loan Document shall be terminated as a result of the rejection thereof by any
trustee, receiver or liquidating agent of the Company or any of its properties
in any bankruptcy, insolvency, reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar proceeding, each Guarantor's
obligations hereunder shall continue to the same extent as if the Credit
Agreement, such Note or such other Loan Document had not been so rejected.
(c) Each Guarantor shall pay all costs, expenses (including,
without limitation, reasonable attorneys' fees and disbursements) and damages
incurred in connection with the enforcement of the Guaranteed Obligations of the
Company under the Credit Agreement, any Note or any other Loan Document to the
extent that such costs, expenses and damages are not paid by the Company
pursuant to the respective documents.
(d) Each Guarantor further agrees that if any payment made by
the Company or any Guarantor to the Agents or the Lenders on any Obligation or
Guaranteed Obligation, as applicable, is rescinded, recovered from or repaid by
the Agents or the Lenders, in whole or in part, in any bankruptcy, insolvency or
similar proceeding instituted by or against the Company or any Guarantor, or
otherwise, this Guaranty shall continue to be fully applicable to such
Guaranteed Obligation to the same extent as though the payment so recovered or
repaid had never originally been made on such Guaranteed Obligation.
(e) If any Event of Default shall have occurred and be
continuing, the Agents, the Lenders, and any Affiliate of any Agent or any
Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Agents or the Lenders, or any Affiliate of
an Agent or a Lender, to or for the credit or the account of any Guarantor
against any of and all the obligations of any Guarantor now or hereafter
existing under this Guaranty, irrespective of whether or not any Agent or any
Lender shall have made any demand hereunder and although such obligations may be
unmatured. The rights under this Section 1(e) are in addition to other rights
and remedies (including other rights of set off) which the Agent and the Lenders
may have.
2. Guaranty Continuing, Absolute, Unlimited.
The obligations of each Guarantor hereunder shall be
continuing, absolute, irrevocable, unlimited and unconditional, shall not be
subject to any counterclaim, set-off, deduction or defense based upon any claim
any Guarantor or the Company may have against any Agent, any Lender or the
Company or any other person, and shall remain in full force and effect without
regard to, and, to the fullest extent permitted by applicable law, shall not be
released, discharged or in any way affected by, any circumstance or condition
(whether or not any Guarantor shall have any knowledge or notice thereof)
whatsoever which might constitute a legal or equitable discharge or defense
including, but not limited to, (a) any express or implied amendment,
modification or supplement to the Credit Agreement, any Note, or any other Loan
Document or any other agreement referred to in any thereof, or any other
instrument applicable to the Company or to the Loans, or the Letters of Credit
or any part thereof; (b) any failure on the part of the Company to perform or
comply with the Credit Agreement, any Note or any other Loan Document or any
failure of any other person to perform or comply with any term of the Credit
Agreement, any Note, or any other Loan Document or any other agreement as
aforesaid; (c) any waiver, consent, change, extension, indulgence or other
action or any action or inaction under or in respect of the Credit Agreement,
any Note, or any other Loan Document or any other agreement as aforesaid,
whether or not any Agent, any Lender, the Company or any Guarantor has notice or
knowledge of any of the foregoing; (d) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding with respect to the Company, or its properties or its creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding; (e) any furnishing or acceptance of additional security or any
release of any security; (f) any limitation on the liability or obligations of
the Company under the Credit Agreement, any Note or any other Loan Document or
any termination, cancellation, frustration, invalidity or unenforceability, in
whole or in part, of the Credit Agreement, any Note, this Guaranty or any other
Loan Document or any term of any thereof; (g) any lien, charge or encumbrance on
or affecting any Guarantor's or any of the Company's respective assets and
properties; (h) any act, omission or breach on the part of any Agent or any
Lender under the Credit Agreement, any Note or any other Loan Document or any
other agreement at any time existing between any Agent, any Lender and the
Company or any law, governmental regulation or other agreement applicable to any
Agent, any Lender or any Loan; (i) any claim as a result of any other dealings
among any Agent, any Lender, any Guarantor or the Company; (j) the assignment of
this Guaranty, the Credit Agreement, any Note or any other Loan Document by any
Agent or any Lender to any other Person; (k) any change in the name of any
Agent, any Lender, the Company or any other Person referred to herein; or (l)
the release of any other Guarantor from any of its obligations hereunder.
3. Waiver.
Each Guarantor unconditionally waives, to the fullest extent
permitted by applicable law: (a) notice of any of the matters referred to in
Section 2 hereof, except as expressly provided herein; (b) all notices which may
be required by statute, rule of law or otherwise to preserve any rights against
any Guarantor hereunder, including, without limitation, notice of the acceptance
of this Guaranty, or the creation, renewal, extension, modification or accrual
of the Guaranteed Obligations or notice of any other matters relating thereto,
any presentment, demand, notice of dishonor, protest, nonpayment of any damages
or other amounts payable under the Credit Agreement, any Note or any other Loan
Documents; (c) any requirement for the enforcement, assertion or exercise of any
right, remedy, power or privilege under or in respect of the Credit Agreement,
any Note or any other Loan Documents, including, without limitation, diligence
in collection or protection of or realization upon the Guaranteed Obligations or
any part thereof or any collateral thereof; (d) any requirement of diligence;
(e) any requirement to mitigate the damages resulting from a default by the
Company under the Credit Agreement, any Note or any other Loan Documents; (f)
the occurrence of every other condition precedent to which any Guarantor or the
Company may otherwise be entitled; (g) the right to require the Agents or the
Lenders to proceed against the Company or any other person liable on the
Guaranteed Obligations, to proceed against or exhaust any security held by the
Company or any other person, or to pursue any other remedy in any Agent's or any
Lender's power whatsoever, and (h) the right to have the property of the Company
first applied to the discharge of the Guaranteed Obligations.
The Agents and the Lenders may, at their election, exercise
any right or remedy they may have against the Company without affecting or
impairing in any way the liability of any Guarantor hereunder and each Guarantor
waives, to the fullest extent permitted by applicable law, any defense arising
out of the absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other right or remedy of any Guarantor
against the Company, whether resulting from such election by the Agents or the
Lenders or otherwise. Each Guarantor waives any defense arising by reason of any
disability or other defense of the Company or by reason of the cessation for any
cause whatsoever of the liability, either in whole or in part, of the Company to
the Agents and the Lenders for the Guaranteed Obligations.
Each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of the Company and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and agrees that neither the Agents nor the Lenders shall have any duty to advise
any Guarantor of information regarding any condition or circumstance or any
change in such condition or circumstance. Each Guarantor acknowledges that
neither the Agents nor the Lenders have made any representations to any
Guarantor concerning the financial condition of the Company.
4. Representations and Covenants of each Guarantor.
(a) The representations and warranties contained in Article IV
of the Credit Agreement, to the extent they relate and are applicable to a
Guarantor, are true and correct in all material respects as of the date hereof
and the Agents and the Lenders are entitled to rely on such representations and
warranties to the same extent as though the same were set forth in full herein.
(b) Each Guarantor hereby agrees to perform the covenants
contained in Article VI and Article VII of the Credit Agreement, to the extent
they relate and are applicable to such Guarantor, and the Agents and the Lenders
are entitled to rely on such agreement to perform such covenants to the same
extent as though the same were set forth in full herein.
5. Payments.
Each payment by each Guarantor to the Agents and the Lenders
under this Guaranty shall be made in the time, place and manner provided for
payments in the Credit Agreement without set-off or counterclaim to the account
at which such payment is required to be paid by the Company under the Credit
Agreement.
6. Parties.
This Guaranty shall inure to the benefit of the Agents, the
Lenders and their respective successors, assigns or transferees, and shall be
binding upon the Guarantors and their respective successors and assigns. No
Guarantor may delegate any of its duties under this Guaranty without the prior
written consent of the Agents and the Lenders and any delegation of such duties
without such consent shall be null and void.
7. Notices.
Any notice shall be conclusively deemed to have been received
by a party hereto and to be effective on the day on which delivered to such
party at the address set forth below, or if sent by registered or certified
mail, on the third Business Day after the day on which mailed in the United
States, addressed to such party at said address (provided that the failure to
give a copy of such notice shall not cause any such notice to be ineffective):
) if to the Agents and/or the Lenders,
Fleet National Bank, as Administrative Agent
300 Broad Hollow Road
Melville, New York 11747
Attention: Relationship Manager - The Hain Celestial Group, Inc.
Telecopy: (631) 547-7815
With a copy to:
Farrell Fritz, P.C.
EAB Plaza, West Tower
Uniondale, New York 11556
Attention: Robert C. Creighton, Esq.
Telecopy: (516) 227-0777
) if to a Guarantor,
c/o The Hain Celestial Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
Attention: Gary M. Jacobs
Telecopy: (516) 237-5420
With a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Roger Meltzer, Esq.
Telecopy: (212) 269-5420
(c) as to each such party at such other address as such party
shall have designated to the other in a written notice complying as to delivery
with the provisions of this Section 7.
8. Remedies.
--------
Each Guarantor stipulates that the remedies at law in respect
of any default or threatened default by a Guarantor in the performance of or
compliance with any of the terms of this Guaranty are not and will not be
adequate, and that any of such terms may be specifically enforced by a decree
for specific performance or by an injunction against violation of any such terms
or otherwise.
9. Rights to Deal with the Company.
At any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of any
Guarantor hereunder, the Agents and the Lenders may deal with the Company in the
same manner and as fully as if this Guaranty did not exist and shall be
entitled, among other things, to grant the Company, without notice or demand and
without affecting any Guarantor's liability hereunder, such extension or
extensions of time to perform, renew, compromise, accelerate or otherwise change
the time for payment of or otherwise change the terms of indebtedness or any
part thereof contained in or arising under the Credit Agreement, any Note or any
other Loan Documents, or to waive any obligation of the Company to perform, any
act or acts as the Agents and the Lenders may deem advisable.
10. Subrogation.
(a) Upon any payment made or action taken by a Guarantor
pursuant to this Guaranty, such Guarantor shall, subject to the provisions of
Sections 10(b) and (c) hereof, be fully subrogated to all of the rights of the
Agents and the Lenders against the Company arising out of the action or inaction
of the Company for which such payment was made or action taken by such
Guarantor.
(b) Any claims of such Guarantor against the Company arising
from payments made or actions taken by such Guarantor pursuant to the provisions
of this Guaranty shall be in all respects subordinate to the full and complete
or final and indefeasible payment or performance and discharge, as the case may
be, of all amounts, obligations and liabilities, the payments or performance and
discharge of which are guaranteed by this Guaranty, and no payment hereunder by
a Guarantor shall give rise to any claim of such Guarantor against the Agents
and the Lenders.
(c) Notwithstanding anything to the contrary contained in this
Section 10, no Guarantor shall be subrogated to the rights of the Agents and the
Lenders against the Company until all of the Obligations of the Company have
been paid finally and indefeasibly in full, and that subrogation shall be
suspended upon the occurrence of the events described in Section 1(d) hereof
until the Agents and the Lenders are indefeasibly paid in full.
11. Survival of Representations, Warranties, etc.
All representations, warranties, covenants and agreements made
herein, including representations and warranties deemed made herein, shall
survive any investigation or inspection made by or on behalf of the Agents and
the Lenders and shall continue in full force and effect until all of the
obligations of the Guarantors under this Guaranty shall be fully performed in
accordance with the terms hereof, and until the payment in full of the
Guaranteed Obligations.
12. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF
LAW. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF
NASSAU OR COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT
AND RELATED TO OR IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTY OR
ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER THEREOF
MAY NOT BE LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH GUARANTOR AGREES (I) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT
AND (II) NOT TO ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM IS A MANDATORY OR COMPULSORY COUNTERCLAIM UNDER FEDERAL
LAW OR NEW YORK STATE LAW, AS APPLICABLE. EACH GUARANTOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR
NOTICES SET FORTH IN THIS GUARANTY OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW
YORK. THE AGENTS, THE LENDERS AND EACH GUARANTOR IRREVOCABLY WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EXCEPT AS PROHIBITED BY LAW, THE GUARANTORS
HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES.
13. Miscellaneous.
(a) All capitalized terms used herein and not defined herein
shall have the meanings specified in the Credit Agreement.
(b) This Guaranty is the joint and several obligation of each
Guarantor, and may be enforced against each Guarantor separately, whether or not
enforcement of any right or remedy hereunder has been sought against any other
Guarantor. Each Guarantor acknowledges that its obligations hereunder will not
be released or affected by the failure of the other Guarantors to execute this
Guaranty or by a determination that all or a part of this Guaranty with respect
to any other Guarantor is invalid or unenforceable.
(c) If any term of this Guaranty or any application thereof
shall be invalid or unenforceable, the remainder of this Guaranty and any other
application of such term shall not be affected thereby.
(d) Any term of this Guaranty may be amended, waived,
discharged or terminated only by a written agreement executed by each Guarantor
and by the Administrative Agent (acting with the consent of the Required Lenders
or all Lenders, as applicable under the Credit Agreement).
(e) The headings in this Guaranty are for purposes of reference only and
shall not limit or define the meaning hereof.
(f) No delay or omission by an Agent or a Lender in the
exercise of any right under this Guaranty shall impair any such right, nor shall
it be construed to be waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise of any other
right.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed and delivered as of the day and year first above written.
CELESTIAL SEASONINGS, INC.
ARROWHEAD MILLS, INC.
KINERET FOODS CORPORATION
WESTBRAE NATURAL, INC.
HAIN PURE FOOD CO., INC.
NATURAL NUTRITION GROUP, INC.
LITTLE BEAR ORGANIC FOODS, INC.
WESTBRAE NATURAL FOODS, INC.
HEALTH VALLEY COMPANY
AMI OPERATING, INC.
DEBOLES NUTRITIONAL FOODS, INC.
DANA ALEXANDER, INC.
MOUNTAIN CHAI COMPANY
By:_______________________________
Name:
Title:
EXHIBIT F
ASSIGNMENT AND ACCEPTANCE AGREEMENT
Dated __________________
Reference is hereby made to the Credit Agreement dated as of March ___,
2001 (as amended, restated, modified or supplemented from time to time the
"Credit Agreement") by and among THE HAIN CELESTIAL GROUP, INC., a New York
corporation (the "Company"), the lenders signatory thereto (collectively, the
"Lenders"), FLEET NATIONAL BANK, as Administrative Agent (in such capacity, the
"Administrative Agent"), SUNTRUST BANK, as Syndication Agent, and HSBC BANK USA,
as Documentation Agent. Capitalized terms used herein that are defined in the
Credit Agreement and not otherwise defined herein shall have the respective
meanings ascribed thereto in the Credit Agreement.
________________________________, a _________________ (the "Assignor"), and
_________________________________, a _________________ (the "Assignee"), agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse, and without representation or warranty except as expressly set forth
herein, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, a ____% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, such percentage interest in each of the
Assignor's Commitments as in effect on the Effective Date, the Loans owing to
the Assignor on the Effective Date, the Revolving Credit Facility A Note and the
Revolving Credit Facility B Note held by the Assignor and the participations in
Letters of Credit held by the Assignor on the Effective Date).
+ 2. The Assignor: (i) represents and warrants that as of the date hereof
its Revolving Credit Facility A Commitment (without giving effect to assignments
thereof that have not yet become effective) is $___________, and the aggregate
outstanding principal amount of the Revolving Credit Facility A Loans owing to
it (without giving effect to assignments thereof that have not yet become
effective) is $___________; (ii) represents and warrants that as of the date
hereof its Revolving Credit Facility B Commitment (without giving effect to
assignments thereof that have not yet become effective) is $_________, and the
aggregate outstanding principal amount of Revolving Credit Facility B Loans
owing to it (without giving effect to the assignments thereof that have not yet
become effective) is $_________; (iii) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder, and
that such interest is free and clear of any adverse claim; (iv) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with, or as
to the validity or enforceability of, the Credit Agreement or any other
instrument or document furnished pursuant thereto; (v) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Company or any direct or indirect Subsidiary of the Company or
the performance or observance by the Company or any direct or indirect
Subsidiary of the Company of their respective obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto or the
enforceability of any such agreement, instrument or document; and (vi) attaches
the Revolving Credit Facility A Note and the Revolving Credit Facility B Note
referred to in paragraph 1 above and requests that the Administrative Agent
exchange such notes for a Revolving Credit Facility A Note and a Revolving
Credit Facility B Note each dated the Effective Date in the principal amounts of
$________ and $________, respectively, payable to the order of the Assignee and
a Revolving Credit Facility A Note and a Revolving Credit Facility B Note each
dated the Effective Date in the principal amounts of $___________ and
$___________, respectively, payable to the order of the Assignor.
3. The Assignee: (i) confirms that it has received a copy of the Credit
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon any Agent, the Assignor,
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as its agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (v) specifies as
its addresses for Base Rate Loans and Adjusted Libor Loans (and address for
notices) the offices set forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall be
_________________ (the "Effective Date") which shall not be earlier than five
Business Days after the acceptance and recording by the Administrative Agent of
the executed Assignment and Acceptance. Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by the Administrative Agent and, provided that no Default or Event of
Default has occurred and is then continuing under the Credit Agreement, the
Borrower, and accompanied by the fee payable to the Administrative Agent as
referred to in Section 10.05(c) of the Credit Agreement.
5. Upon such acceptances, as of the Effective Date: (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents, and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights
(except Sections 3.07, 3.08, 3.10 and 10.03 of the Credit Agreement for the
period prior to the Effective Date) and be released from its obligations under
the Credit Agreement.
6. Upon such acceptance, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest and commitment fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to its
rules pertaining to conflicts of laws.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date first set forth above.
[NAME OF ASSIGNOR]
By: _______________________________
Title
[NAME OF ASSIGNEE]
By: _______________________________
Title
Lending Office for Base Rate Loans:
===========================
---------------------------
Lending Office for Adjusted Libor
Loans:
===========================
---------------------------
Attention:
Address for Notices:
===========================
---------------------------
Attention:
Telecopy No.:
Accepted this _____ day
of _______________, 200_
FLEET NATIONAL BANK, as Administrative Agent
By: _________________________________
Name:
Title:
THE HAIN CELESTIAL GROUP, INC.
By: _________________________________
Name:
Title:
4
EXHIBIT G-1
[LETTERHEAD OF COUNSEL TO THE
COMPANY AND THE GUARANTORS]
March ___, 2001
Fleet National Bank,
as Administrative Agent and as a Lender
300 Broad Hollow Road
Melville, New York 11747
==========================
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Ladies and Gentlemen:
We have acted as counsel to The Hain Celestial Group, Inc. (the "Company"),
a Delaware corporation, and to Celestial Seasonings, Inc., a Delaware
corporation, Arrowhead Mills, Inc., a Delaware corporation, Kineret Foods Corp.,
a New York corporation, Westbrae Natural, Inc., a Delaware corporation, Hain
Pure Food Co., Inc., a California corporation, Natural Nutrition Group, Inc., a
Delaware Corporation, Little Bear Organic Foods, Inc., a California corporation,
Westbrae Natural Foods, Inc., a California corporation, Health Valley Company, a
Delaware corporation, AMI Operating, Inc. a Texas corporation, DeBoles
Nutritional Foods, Inc., a New York corporation, Dana Alexander, Inc., a New
York corporation, and Mountain Chai Company, a Colorado corporation
(collectively, the "Guarantors") in connection with the Credit Agreement (the
"Agreement") dated the date hereof among the Company, Fleet National Bank,
("Fleet") as Administrative Agent, __________________ as Syndication Agent,
___________________ as Documentation Agent and the Lenders party thereto,
pursuant to which the Lenders have agreed to extend credit to the Company in the
aggregate principal amount of $250,000,000. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set forth in the
Agreement.
In acting as such counsel, we have examined:
(a) a counterpart of the Agreement executed by the Company;
(b) the Revolving Credit Facility A Notes, the Revolving Credit
Facility B Notes [and the Term Loan Notes] each executed by
the Company in favor of each Lender;
(c) the Swingline Note, executed by the Company in favor of Fleet; and
(d) a counterpart of the Guaranty executed by each Guarantor.
The documents referred to in items (a) through (d) above are hereinafter
referred to collectively as the "Loan Documents".
We have assumed the authenticity of all documents submitted to us as
originals, the conformity to the originals of all documents submitted to us as
certified, conformed or photostatic copies and the authenticity of the originals
of such copies. We have also examined originals, or copies certified to our
satisfaction, of such corporate records, certificates of public officials,
certificates of corporate officers of the Company and each Guarantor and such
other instruments and documents as we have deemed necessary as a basis for the
opinions hereinafter set forth. As to questions of fact, we have, to the extent
that such facts were not independently established by us, relied upon such
certificates.
Based upon the foregoing and subject to the qualifications set forth
herein, we are of the opinion with respect to the Company and the Guarantors
that,
1. The Company and the Guarantors are each a corporation validly
existing and in good standing under the laws of the jurisdiction of their
incorporation and in good standing in each jurisdiction wherein the conduct of
its business or any ownership of its properties requires it to be qualified to
do business except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect, and each has the corporate power and
authority to own its assets and to transact the business in which it is now
engaged.
2. The Company and the Guarantors each have the requisite corporate
power and authority to execute, deliver and perform the Loan Documents to which
it is a party, each of which has been duly authorized by all necessary and
proper corporate action.
3. The Loan Documents to which the Company or the Guarantors are a
party constitute the legal, valid and binding obligation of the Company and the
Guarantors (to the extent they are a party thereto) enforceable against the
Company and each Guarantor, as the case may be, in accordance with their
respective terms subject as to enforcement by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors' rights
generally, and by equitable principles of general application.
4. Neither the execution and delivery by the Company and the Guarantors
of the Loan Documents to which they are a party nor the performance by the
Company or the Guarantors of their respective obligations under the Loan
Documents, will (a) violate any law, rule or regulation or, to our knowledge,
any order or decree of any court or governmental instrumentality binding upon
the Company or any Guarantor, (b) contravene the Certificate of Incorporation or
By-Laws of the Company or any Guarantor or result in a breach of or constitute a
default (with due notice or lapse of time or both) under any agreements to which
the Company or any Guarantor is bound of which we are aware, or, to our
knowledge, result in the creation or imposition of any lien, charge, or
encumbrance upon any of the property or assets of the Company or any Guarantor,
or (c) require the consent, license, approval or authorization of any
governmental or public body or authority.
5. Neither the Company nor any Guarantor is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
6. No consent or authorization of, filing with or other act by or in
respect of any governmental authority is required to be obtained by the Company
or any Guarantor for the valid execution, delivery and performance of the Loan
Documents to which they are a party.
7. Assuming the proceeds of the Loans are used for the purposes set
forth in Section 3.02 of the Credit Agreement, the making of the Loans
contemplated therein and the application of the proceeds thereof will not
violate the provisions of Regulation U or X of the Board of Governors of the
Federal Reserve System.
8. To the best of our knowledge there are no actions, suits or
proceedings against any of the Company or any Guarantor, pending or threatened
against the Company or any Guarantor, before any court, governmental agency or
arbitrator which challenges the validity or enforceability of any Loan Document
or which, if adversely determined, would impair the ability of the Company or
any Guarantor to perform their respective obligations under the Loan Documents
to which they are a party.
Very truly yours,
1
EXHIBIT H
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement"),
dated as of March ___, 2001, among THE HAIN CELESTIAL GROUP, INC. (the
"Company"), the financial institutions from time to time parties thereto (the
"Lenders"), FLEET NATIONAL BANK, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, SUNTRUST BANK, as Syndication Agent,
and HSBC BANK USA, as Documentation Agent.
The undersigned hereby certifies to the Administrative Agent and to the
Company that:
(1) The undersigned is the beneficial owner of the Notes registered in its
name;
(2) The undersigned is not a bank (as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"));
(3) The undersigned is not a "10-percent shareholder" (as such term is used
in Section 881(c)(3)(B) of the Code);
(4) The income from the Notes held by the undersigned is not effectively
connected with the conduct of a trade or business within the United States;
(5) The undersigned is not a controlled foreign corporation related (within
the meaning of Section 864(d)(4) of the Code) to the Company;
(6) The undersigned is a person other than (i) a citizen or resident of
the United States of America, its territories and possessions (including the
Commonwealth of Puerto Rico and all other areas subject to its jurisdiction)
(for purposes of this clause (6), the "United States"), (ii) a corporation,
partnership or other entity created or organized under the laws of the United
States or any political subdivision thereof or therein or (iii) an estate or
trust that is subject to United States federal income taxation regardless of the
source of its income; and
(7) The undersigned is not a natural person.
We have furnished you with a certificate of our non-U.S. person status
on Internal Revenue Service Form W-8. By executing this certificate, the
undersigned agrees that (a) if the information provided on this certificate
changes, the undersigned shall so inform the Company in writing within thirty
days of such change and (b) the undersigned shall furnish the Company with a
properly completed and currently effective certificate in either the calendar
year in which payment is to be made by the Company to the undersigned, or in
either of the two calendar years preceding such payment.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:____________________________
Title:___________________________
[ADDRESS]
Dated:__________ __, 2001.
[PG NUMBER]
EXHIBIT I-1
COMPANY PLEDGE AGREEMENT
PLEDGE AGREEMENT (the "Agreement") dated as of March _____, 2001 by and
between THE HAIN CELESTIAL GROUP, INC., a Delaware corporation (the "Pledgor"),
and FLEET NATIONAL BANK, a national banking association organized and existing
under the laws of the United States of America, having an office at 300 Broad
Hollow Road, Melville, New York 11747 as Administrative Agent for the ratable
benefit of the Lenders as those terms are defined in the Credit Agreement
referred to below (in such capacity, the "Pledgee").
RECITALS
A. The Pledgor and the Pledgee, as Administrative Agent, SunTrust Bank,
as Syndication Agent, HSBC Bank USA, as Documentation Agent, and the Lenders
party thereto, have entered into a Credit Agreement dated as of March 29, 2001
(as the same may be hereafter amended, modified, restated or supplemented from
time to time, the "Credit Agreement") pursuant to which the Pledgor will receive
Loans and other financial accommodations from the Lenders and will incur
Obligations.
B. The Pledgor is the beneficial owner of that percentage of the issued
and outstanding capital stock or membership or other equity interests of each
Non-Domestic Subsidiary of the Pledgor listed on Schedule A annexed hereto (each
a "Pledged Company" and collectively, the "Pledged Companies") as indicated on
such Schedule A.
C. In order to induce the Lenders to extend credit to the Pledgor on
and after the date hereof as provided in the Credit Agreement, the Pledgor
wishes to grant to the Pledgee for the ratable benefit of the Lenders security
and assurance in order to secure the payment and performance of all Obligations,
and to that effect to pledge to the Pledgee for the ratable benefit of the
Lenders 65% of all of the issued and outstanding capital stock of the Pledged
Companies (the "Pledged Shares") and 65% of all of the issued and outstanding
membership, partnership or other equity interests in the Pledged Companies (the
"Pledged Rights", together with the Pledged Shares, collectively, the "Pledged
Interests") including, without limitation, the Pledged Interests listed opposite
the name of the Pledgor as more particularly described on Schedule A and, with
respect to the Pledged Shares, as represented by the stock certificates
referenced thereon.
Accordingly, the parties hereto agree as follows:
1. Security Interest. As security for the Obligations, including any
and all renewals or extensions thereof, the Pledgor hereby delivers, pledges and
assigns to the Pledgee for the ratable benefit of the Lenders and creates in the
Pledgee for the ratable benefit of the Lenders a first security interest in all
of the Pledgor's right, title and interest in and to all of the Pledged
Interests, together with all rights and privileges of the Pledgor with respect
thereto, all proceeds, income and profits thereof and all property received with
respect to the Pledged Interests in addition thereto, in exchange thereof or in
substitution therefor (collectively, the "Collateral"). The Pledgor has
delivered to the Pledgee, with respect to the Pledged Shares existing on the
date hereof which are evidenced by certificates, certificates evidencing such
Pledged Shares, together with undated stock powers or other similar instruments
duly executed in blank by the Pledgor.
2. Stock Dividends, Options, or Other Adjustments. The Pledgee shall
receive, as Collateral, any and all additional shares of stock, membership
interests or any other property of any kind distributable on or by reason of the
Collateral pledged hereunder, whether in the form of or by way of dividends,
warrants, partial liquidation, conversion, prepayments or redemptions (in whole
or in part), liquidation, or otherwise with the exceptions of cash dividends or
other cash distributions to the extent permitted under Section 7(a) hereof. If
any additional shares of capital stock, instruments, or other property in
respect of the Pledged Interests against which a security interest can only be
perfected by possession by the Pledgee, which are distributable on or by reason
of the Collateral pledged hereunder, shall come into the possession or control
of the Pledgor, the Pledgor shall hold or control in trust for the Pledgee and
the Lenders and forthwith transfer and deliver the same to the Pledgee subject
to the provisions hereof.
3. Delivery of Share Certificates; Stock Powers; Documents. The Pledgor
agrees to deliver all share certificates, undated stock powers duly executed in
blank, documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Pledgee may reasonably request to carry out
the terms of this Agreement or to protect or enforce the lien and security
interest in the Collateral hereunder granted hereby to the Pledgee for the
ratable benefit of the Lenders and further agrees to do and cause to be done,
upon the Pledgee's request, all things reasonably determined by the Pledgee to
be necessary to perfect and keep in full force the lien in the Collateral
hereunder granted hereby in favor of the Pledgee for the ratable benefit of the
Lenders, including, but not limited to, the prompt payment of all documented
out-of-pocket fees and expenses incurred in connection with any filings made to
perfect or continue the lien and security interest in the Collateral hereunder
granted hereby in favor of the Pledgee for the ratable benefit of the Lenders.
The Pledgor agrees to make appropriate entries upon its books and records
(including without limitation its stock record and transfer books) disclosing
the lien against the Collateral hereunder granted hereby to the Pledgee for the
ratable benefit of the Lenders. The Pledgor further agrees to promptly deliver
to the Pledgee, or cause the corporation or other entity issuing the Collateral
to deliver directly to the Pledgee, share certificates or other documents
representing Collateral acquired or received after the date of this Agreement
with an undated stock power or other similar instrument duly executed by the
Pledgor in blank, provided that, the Pledgor shall not be required to pledge any
portion of any Pledged Interest in any Pledged Company which when aggregated
with all of the other Pledged Interests in such Pledged Company pledged to the
Pledgee pursuant to this or any other Pledge Agreement would exceed 65% of the
Pledged Interests in such Pledged Company entitled to vote (within the meaning
of Treasury Regulation Section 1.956-2(c)(2) promulgated under the Code) (on a
fully diluted basis) pledged to the Pledgee under this Agreement and such other
Pledge Agreements; provided that, if, as a result of any change in the tax laws
of the United States of America after the date of this Agreement, the pledge by
the Pledgor of any additional Pledged Interests in excess of 65% under this
Agreement and any other Pledge Agreement would not result in an increase in the
aggregate net consolidated tax liabilities of the Pledgor and such Pledged
Company, then promptly after the change in such laws, all such additional
Pledged Interests shall be so pledged under this Agreement or such other Pledge
Agreement, as applicable. In no event shall the Pledgor be required to pledge
any of the assets of any Subsidiary of the Pledgor that is a controlled foreign
corporation, as defined in Section 957(a) of the Code, including, but not
limited to the stock of any Subsidiary of the Pledgor held directly or
indirectly by any such Subsidiary. If at any time the Pledgee notifies the
Pledgor that additional stock powers or other similar instruments endorsed in
blank with respect to the Collateral are required, the Pledgor shall promptly
execute in blank and deliver such stock powers as the Pledgee may request.
4. Power of Attorney. The Pledgor hereby constitutes and irrevocably
appoints the Pledgee, with full power of substitution and revocation by the
Pledgee, as Pledgor's true and lawful attorney-in-fact, to the full extent
permitted by law, at any time or times when an Event of Default has occurred and
is continuing, to affix to certificates and documents representing the
Collateral the stock power or other similar instruments delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of the Pledgee or the Pledgee's nominee and thereafter to exercise as to
such Collateral all the rights, powers and remedies of an owner. The power of
attorney granted pursuant to this Agreement and all authority hereby conferred
are granted and conferred solely to protect the Pledgee's and the Lenders'
interest in the Collateral and shall not impose any duty upon the Pledgee to
exercise any power. Subject to Section 11 hereof, this power of attorney shall
be irrevocable as one coupled with an interest.
5. Inducing Representations of the Pledgor. The Pledgor makes the following
representations and warranties to the Pledgee; each and all of which shall
survive the execution and delivery of this Agreement:
(a) The information concerning the Pledged Companies and the
Pledgor's beneficial ownership of the Pledged Interests thereof that is
contained in Schedule A is correct in all material respects on the date hereof.
(b) The Pledgor is the sole legal and beneficial owner of, and
has good and indefeasible title to, the Pledged Interests pledged by the
Pledgor, free and clear of all pledges, liens, security interests and other
encumbrances and restrictions on the transfer and assignment thereof, other than
the security interest created by this Agreement and Permitted Liens, and has the
corporate right and authority to execute this Agreement and to pledge the
Collateral to the Pledgee as provided for herein.
(c) There are no outstanding options, warrants or other
agreements to which the Pledged Companies or the Pledgor is a party with respect
to the Pledged Interests pledged by the Pledgor.
(d) The Pledged Shares pledged by the Pledgor have been
validly issued, are fully paid and non-assessable and are not subject to any
charter, by-law, statutory, contractual or other restrictions governing their
issuance, transfer, ownership or control.
(e) Any consent, approval or authorization of or designation
or filing with any authority on the part of the Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected except those consents, approvals, authorizations,
designations or filings which the failure to receive could not reasonably be
expected to have a Material Adverse Effect.
(f) The execution and delivery of this Agreement by the
Pledgor, and the performance by the Pledgor of its obligations hereunder, will
not result in a violation of any mortgage, indenture, contract, instrument,
judgment, decree, order, statute, rule or regulation to which the Pledgor is
subject except any violation which could not reasonably be expected to have a
Material Adverse Effect.
(g) The Pledgor has delivered to the Pledgee all instruments
and stock certificates, if any, representing the Pledged Shares, duly endorsed
in blank or accompanied by an undated assignment or assignments in blank
sufficient to transfer title thereto. There are neither any instruments or
certificates evidencing the Pledged Rights nor registration books in which
ownership of the Pledged Rights are recorded.
6. Obligations of the Pledgor. The Pledgor hereby covenants and agrees with
the Pledgee as follows:
(a) The Pledgor will not sell, transfer or convey any interest
in, or suffer or permit any lien or encumbrance to be created upon or with
respect to, any of the Collateral (other than as created under this Agreement
and Permitted Liens) during the term of the pledge established hereby.
(b) The Pledgor will, at its own expense, at any time and from
time to time at the Pledgee's request, do, make, procure, execute and deliver
all acts, things, writings, assurances and other documents as may be reasonably
required by the Pledgee to further enhance, preserve, establish, demonstrate or
enforce the Pledgee's and the Lenders' rights, interests and remedies created
by, provided in, or emanating from, this Agreement.
7. Rights of the Pledgor. So long as no Event of Default has occurred and
is continuing, and so long as the Pledgee has not transferred the Collateral to
its own name under Section 8 hereof:
(a) The Pledgor shall be entitled to receive and retain any
cash dividends and other cash distributions paid on the Collateral.
(b) The Pledgor shall be entitled to vote or consent or grant
waivers or ratifications with respect to the Collateral in any manner not
inconsistent with this Agreement, the Credit Agreement or any other Loan
Document. The Pledgor hereby grants to the Pledgee an irrevocable proxy to vote
the Collateral, which proxy shall be effective immediately upon the occurrence
of and during the continuance of an Event of Default or registration of the
Collateral in the name of the Pledgee pursuant to Section 8 hereof. Upon request
of the Pledgee, the Pledgor agrees to deliver to the Pledgee such further
evidence of such irrevocable proxy or such further irrevocable proxy to vote the
Collateral during the continuance of an Event of Default as the Pledgee may
request.
(c) The Pledgee will execute and deliver to the Pledgor all
proxies, powers of attorney or other instruments as the Pledgor may reasonably
request, at the Pledgor's cost, for purposes of effecting the voting rights or
right to receive dividends and distributions set forth in clauses (a) and (b) of
this Section 7, provided that the Pledgor shall supply such appropriate forms to
the Pledgee.
8. Rights of the Pledgee. At any time when an Event of Default has occurred
and is continuing, the Pledgee may in its sole discretion:
(a) Cause the Collateral to be transferred to its name or to
the name of its nominee or nominees and thereafter exercise as to such
Collateral all of the rights, powers and remedies of an owner.
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of said Collateral, and hold the same as part of
the Collateral, or apply the same to any of the Obligations in such manner and
order as the Pledgee may decide in its sole discretion.
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof.
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral or pay for the maintenance and
preservation of the Collateral; the amount of such payments, plus any and all
fees, costs and expenses of the Pledgee (including reasonable attorneys' fees
and disbursements) in connection therewith shall, at the Pledgee's option, be
(i) reimbursed by the Pledgor on demand, with interest thereon from the date
paid by Pledgee at two percent (2%) per annum above the Base Rate or (ii) added
to the Obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of an
Event of Default:
(a) In addition to all the rights and remedies of a secured
party under applicable law, the Pledgee shall have the right, without demand of
performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon Pledgor or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange or
broker's board or at any of the Pledgee's offices or elsewhere at such prices
and on such terms (including, without limitation, a requirement that any
purchaser of all or any part of the Collateral shall be required to purchase any
securities constituting the Collateral solely for investment and without any
intention to make a distribution thereof) as the Pledgee in its sole and
absolute discretion deems appropriate without any liability for any loss due to
decrease in the market value of the Collateral during the period held, provided
that any such sale shall be made in a commercially reasonably manner. The
Pledgee agrees that if notice of sale shall be required by law such notification
shall be deemed reasonable and properly given if mailed to the Pledgor, postage
prepaid, at least ten (10) days before any such disposition, to the address
indicated in Section 13(c) below. Any disposition of the Collateral or any part
thereof may be for cash or on credit or for future delivery without assumption
of any credit risk, with the right of the Pledgee and each Lender to purchase
all or any part of the Collateral so sold at any such sale or sales, public or
private, free of any equity or right of redemption in the Pledgor, which right
or equity is, to the extent permitted by applicable law, hereby expressly waived
and released by the Pledgor.
(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as the Pledgee may deem
expedient.
(c) The Pledgee may elect to obtain (at the Pledgor's expense)
the advice of any independent investment banking firm with respect to the method
and manner of sale of any of the Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. The Pledgee, in its sole
discretion, may elect to sell on such credit terms which it deems reasonable.
The sale of any of the Collateral on credit terms shall not relieve the Pledgor
of its liability under any Loan Document until its Obligations have been paid in
full. All payments received by the Pledgee in respect of a sale of Collateral
shall be applied to the Obligations in the manner provided in Section 10 hereof,
as and when such payments are received.
(d) The Pledgor recognizes that the Pledgee may be unable to
effect a public sale of all or a part of the Collateral by reason of certain
prohibitions contained in any applicable securities law, but may be compelled to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view for the distribution or resale
thereof. The Pledgor agrees that private sales so made may be at prices and on
other terms less favorable to the seller than if the Collateral were sold at
public sale, and that the Pledgee has no obligation to delay the sale of any
Collateral for the period of time necessary to permit the registration of the
Collateral for public sale under the Securities Act of 1933, as amended. The
Pledgor agrees that a private sale or sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, the Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure such sale or other disposition of the Collateral as the
Pledgee may reasonably deem necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, the Pledgee shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Pledgee) shall hold the Collateral free from any
claim or right of the Pledgor of whatever kind, including any equity or right of
redemption of the Pledgor. The Pledgor specifically waives, to the extent
permitted by applicable laws, all rights of redemption, stay or appraisal which
it had or may have under any rule of law or statute now existing or hereafter
adopted.
(g) The Pledgee shall not be obligated to make any sale or
other disposition, unless the terms thereof shall be satisfactory to it. The
Pledgee may, subject to applicable laws, without notice or publication, adjourn
any private or public sale, and, upon ten (10) days' prior notice to the
Pledgor, hold such sale 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 future delivery, the Collateral so sold may be retained by the Pledgee until
the selling price is paid by the purchaser thereof, but the Pledgee and the
Lenders shall incur no liability in the case of the failure of such purchaser to
take up and pay for the property so sold and, in case of any such failure, such
property may again be sold as herein provided.
10. Disposition of Proceeds.
-----------------------
(a) The proceeds of any sale or disposition of all or any part of the
Collateral shall be applied by the Pledgee in the following order:
(i) to the payment in full of the costs and expenses
of such sale or sales, collections, and the protection,
declaration and enforcement of any security interest granted
hereunder including the reasonable compensation of the
Pledgee's agents and attorneys;
(ii) to the payment of the Obligations; and
(iii) to the payment to the Pledgor of any surplus
then remaining from such proceeds, subject to the rights of
any holder of a lien on the Collateral of which the Pledgee
has actual notice.
(b) In the event that the proceeds of any sale or other
disposition of the Collateral are insufficient to cover the principal of, and
premium, if any, and interest on, the Obligations secured thereby plus costs and
expenses of the sale or other disposition, the Pledgor shall remain liable for
any deficiency.
11. Termination. This Agreement shall continue in full force and effect
until all of the Obligations shall have been paid in full and satisfied, and the
Credit Agreement shall have been terminated. Subject to any sale or other
disposition by the Pledgee of the Collateral or any part thereof pursuant to
this Agreement, the Collateral (together with the undated stock powers or other
similar instruments delivered by the Pledgor to the Pledgee) shall be returned
to the Pledgor upon full payment, satisfaction and termination of all of the
Obligations. To the extent that the sale or other disposition of the Collateral
is specifically permitted under the Credit Agreement and provided that no Event
of Default has occurred and is then continuing, the Pledgee shall, from time to
time, deliver to the Pledgor upon request therefor and at the Pledgor's expense,
releases of the Collateral and any other documents reasonably requested by the
Pledgor evidencing the release of the security interest granted hereunder.
12. Expenses of the Pledgee. All out-of-pocket expenses (including
reasonable fees and disbursements of counsel) incurred by the Pledgee in
connection with the perfection and continuation of the security interest granted
hereunder and any actual or attempted sale or exchange of, or any enforcement,
collection, compromise or settlement respecting, the Collateral, or any other
action taken by the Pledgee hereunder whether directly or as attorney-in-fact
pursuant to a power of attorney or other authorization herein conferred, for the
purpose of satisfaction of the liability of the Pledgor for failure to pay the
Obligations or as additional amounts owing by the Pledgor to cover the Pledgee's
costs of acting against the Collateral, shall be deemed an Obligation of the
Pledgor for all purposes of this Agreement and the Pledgee may apply the
Collateral to payment of or reimbursement of itself for such liability.
13. General Provisions.
------------------
(a) All capitalized terms used in this Pledge Agreement and
not defined herein shall have the respective meanings assigned to them in the
Credit Agreement.
(b) The Pledgee and its assigns shall have no obligation in
respect of the Collateral, except to use reasonable care in holding the
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement.
(c) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, and unless
otherwise expressly provided herein, shall be conclusively deemed to have been
received by a party hereto and to be effective on the day on which delivered to
such party at the address set forth below, or if sent by registered or certified
mail, on the third Business Day after the day on which mailed in the United
States, addressed to such party at said address:
(i) if to the Pledgee, at:
Fleet National Bank, as Administrative Agent
300 Broad Hollow Road
Melville, New York 11747
Attention: Relationship Manager - The Hain Celestial Group, Inc.
Telecopy: (631) 547-7815
With a copy to:
Farrell Fritz, P.C.
One EAB Plaza
Uniondale, New York 11556
Attention: Robert C. Creighton, Esq.
Telecopy: (516) 227-0777
(ii) if to Pledgor, at:
The Hain Celestial Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
Attention: Gary M. Jacobs
Telecopy: (516) 237-6277
With a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Roger Meltzer, Esq.
Telecopy: (212) 269-5420
(iii) As to each party at such other address as such party
shall have designated to the other in a written notice complying as to
delivery with the provisions of this Section 13(c).
(d) No failure on the part of the Pledgee to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Pledgee of any
right, power or remedy hereunder preclude any other or future 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 or
any other agreement. The representations, covenants and agreements of the
Pledgor herein contained shall survive the date hereof. Neither this Agreement
nor the provisions hereof can be changed, waived or terminated except by a
written agreement signed by the Pledgor and the Pledgee (acting with the consent
of the Required Lenders or all Lenders, as applicable under the Credit
Agreement). This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, legal representatives and
assigns except that the Pledgor may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender and any such assignment or transfer without such consent shall be null
and void.
14. APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF
LAWS. THE PLEDGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL
OR STATE COURT IN THE STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF NASSAU OR
COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR HEREBY WAIVES
AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR ANY DOCUMENT OR ANY
INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH FEDERAL OR STATE COURTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PLEDGOR AGREES NOT TO (I) SEEK AND HEREBY WAIVES THE RIGHT
TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION
OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT AND (II) ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM IS A MANDATORY OR COMPULSORY COUNTERCLAIM UNDER FEDERAL
LAW OR NEW YORK STATE LAW, AS APPLICABLE. THE PLEDGOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR
NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW
YORK. THE PLEDGOR AND THE PLEDGEE EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY. EXCEPT AS PROHIBITED BY LAW, THE PLEDGOR HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
THE HAIN CELESTIAL GROUP, INC.
By:___________________________
Name:
Title:
FLEET NATIONAL BANK, as Administrative Agent
By: ________________________
Name:
Title:
SCHEDULE A
1. Pledged Company:
Jurisdiction of Incorporation:
Stock owned by Pledgor
Class:
Number of Shares:
Stock Certificate No.:
Percentage of issued and outstanding shares:
Pledged Interests:
[PG NUMBER]
EXHIBIT I-2
GUARANTOR PLEDGE AGREEMENT
PLEDGE AGREEMENT (the "Agreement") dated as of ___________________by
and between _____________________________, a ____________ corporation (the
"Pledgor"), and FLEET NATIONAL BANK, a national banking association organized
and existing under the laws of the United States of America, having an office at
300 Broad Hollow Road, Melville, New York 11747, as Administrative Agent for the
ratable benefit of the Lenders as those terms are defined in the Credit
Agreement referred to below (in such capacity, the "Pledgee").
RECITALS
A. The Hain Celestial Group, Inc., a Delaware corporation (the
"Company"), Pledgee, as Administrative Agent, SunTrust Bank, as Syndication
Agent, HSBC Bank USA, as Documentation Agent, and the Lenders party thereto,
have entered into a Credit Agreement dated as of March ____, 2001 (as the same
may be hereafter amended, modified, restated or supplemented from time to time,
the "Credit Agreement") pursuant to which the Company will receive Loans and
other financial accommodations from the Lenders and will incur Obligations.
B. Pursuant to a Guaranty dated as of March ____, 2001, the Pledgor has
guaranteed the payment by the Company of all its Obligations (the obligations of
the Pledgor under such Guaranty are hereinafter referred to as the "Guaranty
Obligations").
C. The Pledgor is the beneficial owner of that percentage of the issued
and outstanding capital stock or membership or other equity interests of each
Non-Domestic Subsidiary listed on Schedule A annexed hereto (each a "Pledged
Company" and collectively, the "Pledged Companies") as indicated on such
Schedule A.
D. In order to induce the Lenders to enter into the Credit Agreement
and to extend credit to the Company on and after the date hereof as provided in
the Credit Agreement, the Pledgor wishes to grant to the Pledgee for the ratable
benefit of the Lenders security and assurance in order to secure the payment and
performance of all its Guaranty Obligations, and to that effect to pledge to the
Pledgee for the ratable benefit of the Lenders 65% of all of the issued and
outstanding capital stock of the Pledged Companies (the "Pledged Shares") and
65% of all of the issued and outstanding membership, partnership or other equity
interests in the Pledged Companies (the "Pledged Rights", together with the
Pledged Shares, collectively, the "Pledged Interests") including, without
limitation, the Pledged Interests listed opposite the name of the Pledgor as
more particularly described on Schedule A and, with respect to the Pledged
Shares, as represented by the stock certificates referenced thereon.
Accordingly, the parties hereto agree as follows:
1. Security Interest. As security for the Guaranty Obligations,
including any and all renewals or extensions thereof, the Pledgor hereby
delivers, pledges and assigns to the Pledgee for the ratable benefit of the
Lenders and creates in the Pledgee for the ratable benefit of the Lenders a
first security interest in all of the Pledgor's right, title and interest in and
to all of the Pledged Interests, together with all rights and privileges of the
Pledgor with respect thereto, all proceeds, income and profits thereof and all
property received with respect to the Pledged Interests in addition thereto, in
exchange thereof or in substitution therefor (collectively, the "Collateral").
The Pledgor has delivered to the Pledgee, with respect to the Pledged Shares
existing on the date hereof which are evidenced by certificates, certificates
evidencing such Pledged Shares, together with undated stock powers or other
similar instruments duly executed in blank by the Pledgor.
2. Stock Dividends, Options, or Other Adjustments. The Pledgee shall
receive, as Collateral, any and all additional shares of stock, membership
interests or other property of any kind distributable on or by reason of the
Collateral pledged hereunder, whether in the form of or by way of dividends,
warrants, partial liquidation, conversion, prepayments or redemptions (in whole
or in part), liquidation, or otherwise with the exceptions of cash dividends or
other cash distributions to the extent permitted under Section 7(a) hereof. If
any additional shares of capital stock, instruments, or other property in
respect of the Pledged Interests against which a security interest can only be
perfected by possession by the Pledgee, which are distributable on or by reason
of the Collateral pledged hereunder, shall come into the possession or control
of the Pledgor, the Pledgor shall hold or control in trust for the Pledgee and
the Lenders and forthwith transfer and deliver the same to the Pledgee subject
to the provisions hereof.
3. Delivery of Share Certificates; Stock Powers; Documents. The Pledgor
agrees to deliver all share certificates, undated stock powers duly executed in
blank, documents, agreements, financing statements, amendments thereto,
assignments or other writings as the Pledgee may reasonably request to carry out
the terms of this Agreement or to protect or enforce the lien and security
interest in the Collateral hereunder granted hereby to the Pledgee for the
ratable benefit of the Lenders and further agrees to do and cause to be done,
upon the Pledgee's request, all things reasonably determined by the Pledgee to
be necessary to perfect and keep in full force the lien in the Collateral
hereunder granted hereby in favor of the Pledgee for the ratable benefit of the
Lenders, including, but not limited to, the prompt payment of all documented
out-of-pocket fees and expenses incurred in connection with any filings made to
perfect or continue the lien and security interest in the Collateral hereunder
granted hereby in favor of the Pledgee for the ratable benefit of the Lenders.
The Pledgor agrees to make appropriate entries upon its books and records
(including without limitation its stock record and transfer books) disclosing
the lien against the Collateral hereunder granted hereby to the Pledgee for the
ratable benefit of the Lenders. The Pledgor further agrees to promptly deliver
to the Pledgee, or cause the corporation or other entity issuing the Collateral
to deliver directly to the Pledgee, share certificates or other documents
representing Collateral acquired or received after the date of this Agreement
with an undated stock power or other similar instruments duly executed by the
Pledgor in blank, provided that, the Pledgor shall not be required to pledge any
portion of any Pledged Interest in any Pledged Company which when aggregated
with all of the other Pledged Interests in such Pledged Company pledged to the
Pledgee pursuant to this or any other Pledge Agreement would exceed 65% of the
Pledged Interests in such Pledged Company entitled to vote (within the meaning
of Treasury Regulation Section 1.956-2(c)(2) promulgated under the Code) (on a
fully diluted basis) pledged to the Pledgee under this Agreement and such other
Pledge Agreements; provided that, if, as a result of any change in the tax laws
of the United States of America after the date of this Agreement, the pledge by
the Pledgor of any additional Pledged Interests in excess of 65% under this
Agreement and any other Pledge Agreement would not result in an increase in the
aggregate net consolidated tax liabilities of the Pledgor and such Pledged
Company, then promptly after the change in such laws, all such additional
Pledged Interests shall be so pledged under this Agreement or such other Pledge
Agreement, as applicable. In no event shall the Pledgor be required to pledge
any of the assets of any Subsidiary of the Pledgor that is a controlled foreign
corporation, as defined in Section 957(a) of the Code, including, but not
limited to the stock of any Subsidiary of the Pledgor held directly or
indirectly by any such Subsidiary. If at any time the Pledgee notifies the
Pledgor that additional stock powers or other similar instruments endorsed in
blank with respect to the Collateral are required, the Pledgor shall promptly
execute in blank and deliver such stock powers as the Pledgee may request.
4. Power of Attorney. The Pledgor hereby constitutes and irrevocably
appoints the Pledgee, with full power of substitution and revocation by the
Pledgee, as Pledgor's true and lawful attorney-in-fact, to the full extent
permitted by law, at any time or times when an Event of Default has occurred and
is continuing, to affix to certificates and documents representing the
Collateral the stock power or other similar instrument delivered with respect
thereto, to transfer or cause the transfer of the Collateral, or any part
thereof on the books of the corporation or other entity issuing the same, to the
name of the Pledgee or the Pledgee's nominee and thereafter to exercise as to
such Collateral all the rights, powers and remedies of an owner. The power of
attorney granted pursuant to this Agreement and all authority hereby conferred
are granted and conferred solely to protect the Pledgee's and the Lenders'
interest in the Collateral and shall not impose any duty upon the Pledgee to
exercise any power. Subject to Section 11 hereof, this power of attorney shall
be irrevocable as one coupled with an interest.
5. Inducing Representations of the Pledgor. The Pledgor makes the following
representations and warranties to the Pledgee; each and all of which shall
survive the execution and delivery of this Agreement:
(a) The information concerning the Pledged Companies and the
Pledgor's beneficial ownership of the Pledged Interests thereof that is
contained in Schedule A is correct in all material respects on the date hereof.
(b) The Pledgor is the sole legal and beneficial owner of, and
has good and indefeasible title to, the Pledged Interests pledged by the
Pledgor, free and clear of all pledges, liens, security interests and other
encumbrances and restrictions on the transfer and assignment thereof, other than
the security interest created by this Agreement and Permitted Liens, and has the
corporate right and authority to execute this Agreement and to pledge the
Collateral to the Pledgee as provided for herein.
(c) There are no outstanding options, warrants or other
agreements to which the Pledged Companies or the Pledgor is a party with respect
to the Pledged Interests pledged by the Pledgor.
(d) The Pledged Shares pledged by the Pledgor have been
validly issued, are fully paid and non-assessable and are not subject to any
charter, by-law, statutory, contractual or other restrictions governing their
issuance, transfer, ownership or control.
(e) Any consent, approval or authorization of or designation
or filing with any authority on the part of the Pledgor which is required in
connection with the pledge and security interest granted under this Agreement
has been obtained or effected except those consents, approvals, authorizations,
designations or filings which the failure to receive could not reasonably be
expected to have a Material Adverse Effect.
(f) The execution and delivery of this Agreement by the
Pledgor, and the performance by the Pledgor of its obligations hereunder, will
not result in a violation of any mortgage, indenture, contract, instrument,
judgment, decree, order, statute, rule or regulation to which the Pledgor is
subject except any violation which could not reasonably be expected to have a
Material Adverse Effect.
(g) The Pledgor has delivered to the Pledgee all instruments
and stock certificates, if any, representing the Pledged Shares, duly endorsed
in blank or accompanied by an undated assignment or assignments in blank
sufficient to transfer title thereto. There are neither any instruments or
certificates evidencing the Pledged Rights nor registration books in which
ownership of the Pledged Rights are recorded.
6. Obligations of the Pledgor. The Pledgor hereby covenants and agrees with
the Pledgee as follows:
(a) The Pledgor will not sell, transfer or convey any interest
in, or suffer or permit any lien or encumbrance to be created upon or with
respect to, any of the Collateral (other than as created under this Agreement
and Permitted Liens) during the term of the pledge established hereby.
(b) The Pledgor will, at its own expense, at any time and from
time to time at the Pledgee's request, do, make, procure, execute and deliver
all acts, things, writings, assurances and other documents as may be reasonably
required by the Pledgee to further enhance, preserve, establish, demonstrate or
enforce the Pledgee's and the Lenders' rights, interests and remedies created
by, provided in, or emanating from, this Agreement.
7. Rights of the Pledgor. So long as no Event of Default has occurred and
is continuing, and so long as the Pledgee has not transferred the Collateral to
its own name under Section 8 hereof:
(a) The Pledgor shall be entitled to receive and retain any
cash dividends and other cash distributions paid on the Collateral.
(b) The Pledgor shall be entitled to vote or consent or grant
waivers or ratifications with respect to the Collateral in any manner not
inconsistent with this Agreement, the Credit Agreement or any other Loan
Document. The Pledgor hereby grants to the Pledgee an irrevocable proxy to vote
the Collateral, which proxy shall be effective immediately upon the occurrence
of and during the continuance of an Event of Default or registration of the
Collateral in the name of the Pledgee pursuant to Section 8 hereof. Upon request
of the Pledgee, the Pledgor agrees to deliver to the Pledgee such further
evidence of such irrevocable proxy or such further irrevocable proxy to vote the
Collateral during the continuance of an Event of Default as the Pledgee may
request.
(c) The Pledgee will execute and deliver to the Pledgor all
proxies, powers of attorney or other instruments as the Pledgor may reasonably
request, at the Pledgor's cost, for purposes of effecting the voting rights or
right to receive dividends and distributions set forth in clauses (a) and (b) of
this Section 7, provided that the Pledgor shall supply such appropriate forms to
the Pledgee.
8. Rights of the Pledgee. At any time when an Event of Default has occurred
and is continuing, the Pledgee may in its sole discretion:
(a) Cause the Collateral to be transferred to its name or to
the name of its nominee or nominees and thereafter exercise as to such
Collateral all of the rights, powers and remedies of an owner.
(b) Collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now or
hereafter payable on account of said Collateral, and hold the same as part of
the Collateral, or apply the same to any of the Guaranty Obligations in such
manner and order as the Pledgee may decide in its sole discretion.
(c) Enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement relating to
or affecting the Collateral, and in connection therewith deposit or surrender
control of the Collateral thereunder, and accept other property in exchange
therefor and hold and apply such property or money so received in accordance
with the provisions hereof.
(d) Discharge any taxes, liens, security interests or other
encumbrances levied or placed on the Collateral or pay for the maintenance and
preservation of the Collateral; the amount of such payments, plus any and all
fees, costs and expenses of the Pledgee (including reasonable attorneys' fees
and disbursements) in connection therewith shall, at the Pledgee's option, be
(i) reimbursed by the Pledgor on demand, with interest thereon from the date
paid by Pledgee at two percent (2%) per annum above the Base Rate or (ii) added
to the Guaranty Obligations secured hereby.
9. Event of Default; Remedies. Upon the occurrence and continuance of an
Event of Default:
(a) In addition to all the rights and remedies of a secured
party under applicable law, the Pledgee shall have the right, without demand of
performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon Pledgor or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the extent
permitted by law), to proceed forthwith to collect, receive, appropriate and
realize upon the Collateral, or any part thereof and to proceed forthwith to
sell, assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Collateral or any part thereof in one or
more parcels at public or private sale or sales at any stock exchange or
broker's board or at any of the Pledgee's offices or elsewhere at such prices
and on such terms (including, without limitation, a requirement that any
purchaser of all or any part of the Collateral shall be required to purchase any
securities constituting the Collateral solely for investment and without any
intention to make a distribution thereof) as the Pledgee in its sole and
absolute discretion deems appropriate without any liability for any loss due to
decrease in the market value of the Collateral during the period held, provided
that any such sale shall be made in a commercially reasonably manner. The
Pledgee agrees that if notice of sale shall be required by law such notification
shall be deemed reasonable and properly given if mailed to the Pledgor, postage
prepaid, at least ten (10) days before any such disposition, to the address
indicated in Section 13(c) below. Any disposition of the Collateral or any part
thereof may be for cash or on credit or for future delivery without assumption
of any credit risk, with the right of the Pledgee and each Lender to purchase
all or any part of the Collateral so sold at any such sale or sales, public or
private, free of any equity or right of redemption in the Pledgor, which right
or equity is, to the extent permitted by applicable law, hereby expressly waived
and released by the Pledgor.
(b) All of the Pledgee's rights and remedies, including but
not limited to the foregoing, shall be cumulative and not exclusive and shall be
enforceable alternatively, successively or concurrently as the Pledgee may deem
expedient.
(c) The Pledgee may elect to obtain (at the Pledgor's expense)
the advice of any independent investment banking firm with respect to the method
and manner of sale of any of the Collateral, the best price reasonably
obtainable therefor, the consideration of cash and/or credit terms, or any other
details concerning such sale or disposition. The Pledgee, in its sole
discretion, may elect to sell on such credit terms which it deems reasonable.
The sale of any of the Collateral on credit terms shall not relieve the Pledgor
of its liability under any Loan Document until its Guaranty Obligations have
been paid in full. All payments received by the Pledgee in respect of a sale of
Collateral shall be applied to the Guaranty Obligations in the manner provided
in Section 10 hereof, as and when such payments are received.
(d) The Pledgor recognizes that the Pledgee may be unable to
effect a public sale of all or a part of the Collateral by reason of certain
prohibitions contained in any applicable securities law, but may be compelled to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire the Collateral for their own
account, for investment and not with a view for the distribution or resale
thereof. The Pledgor agrees that private sales so made may be at prices and on
other terms less favorable to the seller than if the Collateral were sold at
public sale, and that the Pledgee has no obligation to delay the sale of any
Collateral for the period of time necessary to permit the registration of the
Collateral for public sale under the Securities Act of 1933, as amended. The
Pledgor agrees that a private sale or sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
(e) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial disposition of the Collateral, the Pledgor will execute all such
applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
best efforts to secure such sale or other disposition of the Collateral as the
Pledgee may reasonably deem necessary pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, the Pledgee shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Pledgee) shall hold the Collateral free from any
claim or right of the Pledgor of whatever kind, including any equity or right of
redemption of the Pledgor. The Pledgor specifically waives, to the extent
permitted by applicable laws, all rights of redemption, stay or appraisal which
it had or may have under any rule of law or statute now existing or hereafter
adopted.
(g) The Pledgee shall not be obligated to make any sale or
other disposition, unless the terms thereof shall be satisfactory to it. The
Pledgee may, subject to applicable laws, without notice or publication, adjourn
any private or public sale, and, upon ten (10) days' prior notice to the
Pledgor, hold such sale 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 future delivery, the Collateral so sold may be retained by the Pledgee until
the selling price is paid by the purchaser thereof, but the Pledgee and the
Lenders shall incur no liability in the case of the failure of such purchaser to
take up and pay for the property so sold and, in case of any such failure, such
property may again be sold as herein provided.
10. Disposition of Proceeds.
-----------------------
(a) The proceeds of any sale or disposition of all or any part of the
Collateral shall be applied by the Pledgee in the following order:
(i) to the payment in full of the costs and expenses
of such sale or sales, collections, and the protection,
declaration and enforcement of any security interest granted
hereunder including the reasonable compensation of the
Pledgee's agents and attorneys;
(ii) to the payment of the Guaranty Obligations; and
(iii) to the payment to the Pledgor of any surplus
then remaining from such proceeds, subject to the rights of
any holder of a lien on the Collateral of which the Pledgee
has actual notice.
(b) In the event that the proceeds of any sale or other
disposition of the Collateral are insufficient to cover the principal of, and
premium, if any, and interest on, the Guaranty Obligations secured thereby plus
costs and expenses of the sale or other disposition, the Pledgor shall remain
liable for any deficiency.
11. Termination. This Agreement shall continue in full force and effect
until all of the Guaranty Obligations shall have been paid in full and
satisfied, and the Credit Agreement shall have been terminated. Subject to any
sale or other disposition by the Pledgee of the Collateral or any part thereof
pursuant to this Agreement, the Collateral (together with the undated stock
powers or other similar instruments delivered by the Pledgor to the Pledgee)
shall be returned to the Pledgor upon full payment, satisfaction and termination
of all of the Guaranty Obligations. To the extent that the sale or other
disposition of the Collateral is specifically permitted under the Credit
Agreement and provided that no Event of Default has occurred and is then
continuing, the Pledgee shall, from time to time, deliver to the Pledgor upon
request therefor and at the Pledgor's expense, releases of the Collateral and
any other documents reasonably requested by the Pledgor evidencing the release
of the security interest granted hereunder.
12. Expenses of the Pledgee. All out-of-pocket expenses (including
reasonable fees and disbursements of counsel) incurred by the Pledgee in
connection with the perfection and continuation of the security interest granted
hereunder and any actual or attempted sale or exchange of, or any enforcement,
collection, compromise or settlement respecting, the Collateral, or any other
action taken by the Pledgee hereunder whether directly or as attorney-in-fact
pursuant to a power of attorney or other authorization herein conferred, for the
purpose of satisfaction of the liability of the Pledgor for failure to pay the
Guaranty Obligations or as additional amounts owing by the Pledgor to cover the
Pledgee's costs of acting against the Collateral, shall be deemed a Guaranty
Obligation of the Pledgor for all purposes of this Agreement and the Pledgee may
apply the Collateral to payment of or reimbursement of itself for such
liability.
13. General Provisions.
------------------
(a) All capitalized terms used in this Pledge Agreement and
not defined herein shall have the respective meanings assigned to them in the
Credit Agreement.
(b) The Pledgee and its assigns shall have no obligation in
respect of the Collateral, except to use reasonable care in holding the
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement.
(c) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, and unless
otherwise expressly provided herein, shall be conclusively deemed to have been
received by a party hereto and to be effective on the day on which delivered to
such party at the address set forth below, or if sent by registered or certified
mail, on the third Business Day after the day on which mailed in the United
States, addressed to such party at said address:
(i) if to the Pledgee, at:
Fleet National Bank, as Administrative Agent
300 Broad Hollow Road
Melville, New York 11747
Attention: Relationship Manager - The Hain Celestial Group, Inc.
Telecopy: (631) 547-7815
With a copy to:
Farrell Fritz, P.C.
One EAB Plaza
Uniondale, New York 11556
Attention: Robert C. Creighton, Esq.
Telecopy: (516) 227-0777
(ii) if to Pledgor, at:
c/o The Hain Celestial Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, New York 11553
Attention: Gary M. Jacobs
Telecopy: (516) 237-6277
With a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: Roger Meltzer, Esq.
Telecopy: (212) 269-5420
(iii) As to each party at such other address as such party
shall have designated to the other in a written
notice complying as to delivery with the provisions of this Section 13(c).
(d) No failure on the part of the Pledgee to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Pledgee of any
right, power or remedy hereunder preclude any other or future 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 or
any other agreement. The representations, covenants and agreements of the
Pledgor herein contained shall survive the date hereof. Neither this Agreement
nor the provisions hereof can be changed, waived or terminated except by a
written agreement signed by the Pledgor and the Pledgee (acting with the consent
of the Required Lenders or all Lenders, as applicable under the Credit
Agreement). This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, legal representatives and
assigns except that the Pledgor may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender and any such assignment or transfer without such consent shall be null
and void.
14. APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF
LAWS. THE PLEDGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL
OR STATE COURT IN THE STATE OF NEW YORK, COUNTY OF NEW YORK, COUNTY OF NASSAU OR
COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR HEREBY WAIVES
AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR ANY DOCUMENT OR ANY
INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH FEDERAL OR STATE COURTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE PLEDGOR AGREES NOT TO (I) SEEK AND HEREBY WAIVES THE RIGHT
TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION
OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH
JUDGMENT AND (II) ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM IS A MANDATORY OR COMPULSORY COUNTERCLAIM UNDER FEDERAL
LAW OR NEW YORK STATE LAW, AS APPLICABLE. THE PLEDGOR AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR
NOTICES SET FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW
YORK. THE PLEDGOR AND THE PLEDGEE EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY. EXCEPT AS PROHIBITED BY LAW, THE PLEDGOR HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
[PLEDGOR]
By:___________________________
Name:
Title:
FLEET NATIONAL BANK, as Administrative Agent
By: ________________________
Name:
Title:
SCHEDULE A
Pledged Company:
Jurisdiction of Incorporation:
Stock owned by Pledgor
Class:
Number of Shares
Stock Certificate no.
Percentage of issued and outstanding shares:
Pledged Interests:
Pledged Company:
Jurisdiction of Incorporation:
Stock owned by Pledgor
Class
Number of Shares
Stock Certificate Nos.
Percentage of issued and outstanding shares:
Pledged Interests:
AMENDMENT dated as of June 7, 2001
(this "Amendment") to the Credit
Agreement dated as of March 29,
2001, (as amended, restated,
modified or otherwise supplemented,
from time to time, the "Credit
Agreement") by and among THE HAIN
CELESTIAL GROUP, INC., a Delaware
corporation (the "Company"), FLEET
NATIONAL BANK, a national banking
association, as Administrative Agent
and as a Lender, SUNTRUST BANK, a
Georgia banking corporation, as
Syndication Agent and as a Lender,
HSBC BANK USA, a New York banking
corporation, as Documentation Agent
and as a Lender, and the other
Lenders party thereto.
WHEREAS, the Company, the Administrative Agent and the Required Lenders have
agreed, subject to the terms and conditions of this Amendment, to amend certain
provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Amendment.
(a) Section 7.01(j) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"(j) Indebtedness owing by (i) the Company to any Subsidiary
or (ii) any Subsidiary to the Company or any other Subsidiary,
to the extent that such Indebtedness is otherwise permitted
pursuant to the terms and conditions of this Agreement;"
(b) Section 7.01(k) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"(k) purchase money Indebtedness for borrowed money secured
solely by mortgages on the real property of the Company or any
of its Subsidiaries in an amount not to exceed $15,000,000 in
the aggregate at any time outstanding; and"
(c) Section 7.02(j) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"(j) Liens on real property of the Company or any of its
Subsidiaries securing Indebtedness permitted by Section
7.01(k) hereof, provided the Lien is specifically limited to
such real property."
(d) Section 7.03 of the Credit Agreement is hereby amended to add a new
subsection (d) immediately following subsection (c) of Section 7.03, which new
subsection (d) shall read in its entirety as follows:
"(d) guaranties by the Company of any Indebtedness permitted
pursuant to Section 7.01 of any Subsidiary of the Company or
guaranties by any Subsidiary of the Company of such
Indebtedness of the Company or any other Subsidiary."
2. Miscellaneous.
Capitalized terms used herein and not otherwise defined herein shall have the
same meanings as defined in the Credit Agreement.
Except as expressly amended hereby, the Credit Agreement shall remain in full
force and effect in accordance with the original terms thereof.
The amendments herein contained are limited specifically to the matters set
forth above and do not constitute directly or by implication an amendment or
waiver of any other provision of Credit Agreement or any default which may occur
or may have occurred under the Credit Agreement.
The Company hereby represents and warrants that (a) after giving effect to this
Amendment, the representations and warranties by the Company and each of its
Subsidiaries pursuant to the Credit Agreement and the Loan Documents to which
each is a party are true and correct in all material respects as of the date
hereof with the same effect as though such representations and warranties have
been made on and as of such date, unless such representation is as of a specific
date, in which case, as of such date, (b) after giving effect to this Amendment,
no Default or Event of Default has occurred and is continuing.
This Amendment may be executed in one or more counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute
but one Amendment. This Amendment shall become effective when duly executed
counterparts hereof which, when taken together, bear the signatures of each of
the parties hereto shall have been delivered to the Administrative Agent.
This Amendment shall constitute a Loan Document.
This Amendment shall governed by, and construed in accordance with, the laws of
the State of New York.
[the next page is the signature page]
IN WITNESS WHEREOF, the Company and the Administrative Agent, as authorized on
behalf of the Required Lenders, have caused this Amendment to be duly
executed by their duly authorized officers, all as of the day and year
first above written.
THE HAIN CELESTIAL GROUP, INC.
By:_____________________________
Name:
Title:
FLEET BANK NATIONAL BANK,
as Administrative Agent
By:_____________________________
Name:
Title:
FFDOCS1\LMAHLER\LMAHLER\334866.7 June 28, 2001-- 5:06PM
CONSENT
Each of the undersigned, not parties to the Credit Agreement but each a
Guarantor under a Guaranty dated as of March 29,2001, hereby acknowledges the
terms of the Amendment contained herein and confirms that its Guaranty is in
full force and effect.
CELESTIAL SEASONINGS, INC.
ARROWHEAD MILLS, INC.
KINERT FOODS CORPORATION
WESTBRAE NATURAL, INC.
HAIN PURE FOOD CO., INC.
NATURAL NUTRITION GROUP, INC.
LITTLE BEAR ORGANIC FOODS, INC.
WESTBRAE NATURAL FOODS, INC.
HEALTH VALLEY COMPANY
AMI OPERATING, INC.
DEBOLES NUTRITIONAL FOODS, INC.
DANA ALEXANDER, INC.
MOUNTAIN CHAI COMPANY
By: ____________________________________
Name: Gary M. Jacobs
Title: Chief Financial Officer
3
AMENDMENT AND WAIVER dated as of
July 17, 2001 (this "Amendment and
Waiver") to the Credit Agreement
dated as of March 29, 2001, as
amended by Amendment dated June 7,
2001, (as may be further amended,
restated, modified or otherwise
supplemented, from time to time, the
"Credit Agreement") by and among THE
HAIN CELESTIAL GROUP, INC., a
Delaware corporation (the
"Company"), FLEET NATIONAL BANK, a
national banking association, as
Administrative Agent and as a
Lender, SUNTRUST BANK, a Georgia
banking corporation, as Syndication
Agent and as a Lender, HSBC BANK
USA, a New York banking corporation,
as Documentation Agent and as a
Lender, and the other Lenders party
thereto.
WHEREAS, the Company has requested that the Lenders waive compliance with
certain provisions of the Credit Agreement, subject to the terms and conditions
set forth herein, and the Lenders have agreed to grant such Waivers.
WHEREAS, the Company, the Administrative Agent and the Lenders have agreed,
subject to the terms and conditions set forth herein, to amend certain
provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Waiver.
------
(a) Compliance by the Company with Section 7.01 (Indebtedness) of the
Credit Agreement is hereby waived solely with respect to the Company having
assumed certain foreign exchange contracts with The Bank of Nova Scotia (the "FX
Contract") in connection with the Company's acquisition of the stock of Yves
Veggie Cuisine Inc., a Canadian company, and related companies (the "Yves Veggie
Acquisition").
(b) Compliance by the Company with Section 7.02 (Liens) of the Credit
Agreement is hereby waived solely with respect to the Company having pledged
cash collateral in the amount of $447,000 to The Bank of Nova Scotia in order to
secure the FX Contract which was assumed in connection with the Yves Veggie
Acquisition.
(c) Compliance by the Company with the requirements of Section
7.06(g)(iii) (Loans and Investments) of the Credit Agreement is hereby waived
solely with respect to the Company's obligation to deliver the documents
required to be delivered to the Lenders pursuant to such section fifteen (15)
Business Days prior to the closing of the Yves Veggie Acquisition.
2. Amendments.
(a) The definition of "Hedging Agreement" in Section 1.01 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"Hedging Agreement" shall mean any interest rate swap, collar,
cap, floor or forward rate agreement or other agreement
executed by the Company in connection with the hedging of
interest rate risk exposure of the Company and any confirming
letter executed pursuant to such agreement, all as amended,
supplemented, restated or otherwise modified from time to
time."
(b) Section 6.12 of the Credit Agreement is hereby amended by deleting
the reference to "ten (10) days" in line 11 thereof, and replacing it with the
words "fifteen (15) Business Days".
(c) Section 7.01(h) of the Credit Agreement is hereby amended by deleting
the phrase "arranged by any Lender" therefrom.
(d) Section 7.01 of the Credit Agreement is hereby further amended by
adding a new subsection (m), which subsection shall be and read in its entirety
as follows:
"(m) Indebtedness not otherwise provided for in Section
7.01(a) through Section 7.01(l) in an aggregate amount not to exceed
$2,500,000 at any time outstanding, which Indebtedness may be secured
by Liens permitted pursuant to Section 7.02(k) hereof."
(e) Section 7.02 of the Credit Agreement is hereby amended by adding a
new subsection (k), which subsection shall be and read in its entirety as
follows:
"(k) Liens securing the Indebtedness permitted by Section
7.01(m) hereof, provided such Lien secures only such Indebtedness."
(f) Section 7.06(g)(iii) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(iii) with respect to each such acquisition, the Company shall have
delivered to the Administrative Agent:
(A) on or before the sixth (6th) Business Day prior to the closing of
such proposed acquisition, or, in the event that the consent of the Lenders to
such acquisition is required pursuant to the definition of Acceptable
Acquisition, the eleventh (11th) Business Day prior to the closing of such
proposed acquisition:
(1) a final report of the Company's Auditor, in form and
substance satisfactory to the Lenders, which report shall set
forth the EBITDA of the subject of the proposed acquisition,
together with any and all adjustments thereto;
(2) a certificate of the Chief Financial Officer, in form and
substance satisfactory to the Lenders, demonstrating the
Company's calculations with respect to clauses (c) and (d) of
the definition of "Acceptable Acquisition" and demonstrating
that upon consummation of such proposed acquisition, the
Company will be in compliance with each of the financial
covenants set forth in Section 7.13 hereof.
(3) financial statements which shall include balance sheets,
income statements and statements of cash flows of the Person
being acquired, (a) in the same form and substance as those
required to be delivered by the Company under Sections 6.03(a)
and 6.03(b) hereof, to the extent such are available, or (b)
if unavailable, in the form relied upon by the Company in
connection with such transaction, together with the due
diligence report prepared by the Company's Auditors, or
another nationally recognized accounting firm, in connection
with such transaction, in each case for the previous three (3)
fiscal years;
(4) pro forma balance sheet and income statements of the
Company and its Subsidiaries (after giving effect to the
proposed Acceptable Acquisition) as of the then most recent
fiscal quarter ended demonstrating that upon consummation of
such Acceptable Acquisition, the Company will be in compliance
with the financial covenants contained in Section 7.13, such
evidence of compliance to be in form and substance reasonably
satisfactory to the Lenders;
(5) copies of the relevant purchase agreement and all schedules thereto;
and
(B) on or before the date of the Closing of such Acquisition, evidence
satisfactory to the Administrative Agent that the shares or other
interest in the Person, or the assets of the Person, which is the
subject of the related Acceptable Acquisition are free and clear of all
Liens, except those Liens permitted pursuant to Section 7.02,
including, without limitation, with respect to the acquisition of
shares or other equity interests, free of any restrictions on transfer
other than restrictions applicable to the sale of securities under
federal and state securities laws and regulations generally; provided
that, in the case of any Non-Domestic Acquisition, to the extent that
any such Liens secure aggregate Indebtedness of less than $5,000,000,
such evidence may be delivered to the Administrative Agent no later
than fifteen (15) Business Days following the consummation of such
Acceptable Acquisition."
The Administrative Agent shall provide copies to the Lenders of all
items delivered to the Administrative Agent pursuant to Section
7.06(g)(iii)(A) on the Business Day following receipt of such items by
the Administrative Agent.
3. Miscellaneous.
Capitalized terms used herein and not otherwise defined herein shall have the
same meanings as defined in the Credit Agreement.
Except as expressly waived hereby, the Credit Agreement shall remain in full
force and effect in accordance with the original terms thereof.
The waivers and amendments set forth above are limited specifically to the
matters set forth above and for the specific instances and purposes given and do
not constitute directly or by implication a waiver or amendment of any other
provision of the Credit Agreement or a waiver of any Default or Event of
Default, whether now existing or hereafter arising, which may occur or may have
occurred under the Credit Agreement.
The Company hereby represents and warrants that (a) after giving effect to this
Amendment and Waiver, the representations and warranties by the Company and each
of its Subsidiaries pursuant to the Credit Agreement and the Loan Documents to
which each is a party are true and correct in all material respects as of the
date hereof with the same effect as though such representations and warranties
have been made on and as of such date, unless such representation is as of a
specific date, in which case, as of such date, and (b) after giving effect to
this Amendment and Waiver, no Default or Event of Default has occurred and is
continuing.
This Amendment and Waiver may be executed in one or more counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute but one Amendment and Waiver. This Amendment and Waiver shall become
effective when duly executed counterparts hereof which, when taken together,
bear the signatures of each of the parties hereto shall have been delivered to
the Administrative Agent.
This Amendment and Waiver shall constitute a Loan Document.
This Amendment and Waiver shall governed by, and construed in accordance with,
the laws of the State of New York.
[the next page is the signature page]
IN WITNESS WHEREOF, the Company and the Administrative Agent, as authorized on
behalf of the Lenders, have caused this Waiver to be duly executed by their duly
authorized officers, all as of the day and year first above written.
THE HAIN CELESTIAL GROUP, INC.
By:_____________________________
Name:
Title:
FLEET BANK NATIONAL BANK,
as Administrative Agent
By:_____________________________
Name:
Title:
CONSENT
Each of the undersigned, not parties to the Credit Agreement but each a
Guarantor under a Guaranty dated as of March 29, 2001 (and June 8, 2001 for
Hain-Yves, Inc.), hereby acknowledges the terms of the Amendment and Waiver
contained herein and confirms that its Guaranty is in full force and effect.
CELESTIAL SEASONINGS, INC.
ARROWHEAD MILLS, INC.
KINERT FOODS CORPORATION
WESTBRAE NATURAL, INC.
HAIN PURE FOOD CO., INC.
NATURAL NUTRITION GROUP, INC.
LITTLE BEAR ORGANIC FOODS, INC.
WESTBRAE NATURAL FOODS, INC.
HEALTH VALLEY COMPANY
AMI OPERATING, INC.
DEBOLES NUTRITIONAL FOODS, INC.
DANA ALEXANDER, INC.
MOUNTAIN CHAI COMPANY
HAIN-YVES, INC.
By: ____________________________________
Name: Gary M. Jacobs
Title: Chief Financial Officer