<Page>
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
SUIZA FOODS CORPORATION,
as Borrower,
CERTAIN OF THE DOMESTIC SUBSIDIARIES OF THE
BORROWER FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
and
BANK ONE, NA,
as Syndication Agent
and
FIRST UNION SECURITIES, INC.
and
BANC ONE CAPITAL MARKETS, INC.,
as Co-Lead Arrangers and Joint Book Runners
and
FLEET NATIONAL BANK,
HARRIS TRUST AND SAVINGS BANK
and
SUNTRUST BANK,
as Co-Documentation Agents
Dated as of July 31, 2001
- --------------------------------------------------------------------------------
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
Page
----
ARTICLE I DEFINITIONS..............................................................................2
Section 1.1 DEFINED TERMS...............................................................2
Section 1.2 OTHER DEFINITIONAL PROVISIONS..............................................30
Section 1.3 ACCOUNTING TERMS...........................................................31
ARTICLE II THE LOANS; AMOUNT AND TERMS............................................................31
Section 2.1 REVOLVING LOANS............................................................31
Section 2.2 SWINGLINE LOAN SUBFACILITY.................................................33
Section 2.3 LETTER OF CREDIT SUBFACILITY...............................................34
Section 2.4 TRANCHE A TERM LOAN FACILITY...............................................38
Section 2.5 TRANCHE B TERM LOAN FACILITY...............................................39
Section 2.6 FEES.......................................................................41
Section 2.7 REDUCTION OF THE REVOLVING COMMITMENTS.....................................42
Section 2.8 PREPAYMENTS................................................................42
Section 2.9 MINIMUM BORROWING AMOUNTS AND PRINCIPAL AMOUNTS OF TRANCHES................45
Section 2.10 INTEREST; INTEREST PAYMENT DATES...........................................45
Section 2.11 CONVERSION OPTIONS.........................................................46
Section 2.12 COMPUTATION OF INTEREST AND FEES...........................................47
Section 2.13 PRO RATA TREATMENT AND PAYMENTS............................................48
Section 2.14 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT...........................49
Section 2.15 INABILITY TO DETERMINE INTEREST RATE.......................................50
Section 2.16 ILLEGALITY.................................................................51
Section 2.17 REQUIREMENTS OF LAW........................................................51
Section 2.18 INDEMNITY..................................................................53
Section 2.19 TAXES......................................................................53
Section 2.20 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.........................55
Section 2.21 DEFAULTING LENDERS; LIMITATION ON CLAIMS...................................56
Section 2.22 REPLACEMENT OF LENDERS.....................................................58
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................58
Section 3.1 FINANCIAL CONDITION........................................................59
Section 3.2 NO CHANGE..................................................................59
Section 3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW...................................59
Section 3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS....................59
Section 3.5 NO LEGAL BAR; NO DEFAULT...................................................60
Section 3.6 NO MATERIAL LITIGATION.....................................................60
Section 3.7 GOVERNMENT ACTS............................................................60
Section 3.8 MARGIN REGULATIONS.........................................................61
Section 3.9 ERISA......................................................................61
Section 3.10 ENVIRONMENTAL MATTERS......................................................61
Section 3.11 PURPOSE OF LOANS...........................................................62
Section 3.12 SUBSIDIARIES...............................................................63
Section 3.13 OWNERSHIP..................................................................63
Section 3.14 INDEBTEDNESS...............................................................63
Section 3.15 TAXES......................................................................63
Section 3.16 INTELLECTUAL PROPERTY......................................................63
Section 3.17 SOLVENCY...................................................................64
Section 3.18 INVESTMENTS................................................................64
Section 3.19 LOCATION OF COLLATERAL.....................................................64
Section 3.20 NO BURDENSOME RESTRICTIONS.................................................64
Section 3.21 BROKERS' FEES..............................................................65
Section 3.22 LABOR MATTERS..............................................................65
Section 3.23 SECURITY DOCUMENTS.........................................................65
<Page>
Section 3.24 CONSUMMATION OF ACQUISITION................................................65
Section 3.25 MATERIAL CONTRACTS.........................................................65
Section 3.26 ACCURACY AND COMPLETENESS OF INFORMATION...................................66
Section 3.27 INTEREST RATE PROTECTION...................................................66
ARTICLE IV CONDITIONS PRECEDENT...................................................................66
Section 4.1 CONDITIONS TO CLOSING DATE.................................................66
Section 4.2 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT.................................67
Section 4.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.....................................74
ARTICLE V AFFIRMATIVE COVENANTS...................................................................75
Section 5.1 FINANCIAL STATEMENTS.......................................................76
Section 5.2 CERTIFICATES; OTHER INFORMATION............................................77
Section 5.3 PAYMENT OF OBLIGATIONS.....................................................78
Section 5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE...........................78
Section 5.5 MAINTENANCE OF PROPERTY; INSURANCE.........................................78
Section 5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.....................79
Section 5.7 NOTICES....................................................................79
Section 5.8 ENVIRONMENTAL LAWS.........................................................81
Section 5.9 FINANCIAL COVENANTS........................................................82
Section 5.10 OBLIGATIONS REGARDING SUBSIDIARIES; ADDITIONAL SUBSIDIARY GUARANTORS.......83
Section 5.11 COMPLIANCE WITH LAW........................................................83
Section 5.12 PLEDGED ASSETS.............................................................84
Section 5.13 ADDITIONAL CREDIT PARTIES..................................................84
Section 5.14 AMENDMENTS, MODIFICATIONS..................................................85
Section 5.15 FURTHER ASSURANCES.........................................................85
Section 5.16 GOOD STANDING; POST-CLOSING QUALIFICATION..................................85
ARTICLE VI NEGATIVE COVENANTS.....................................................................85
Section 6.1 INDEBTEDNESS...............................................................86
Section 6.2 LIENS......................................................................87
Section 6.3 NATURE OF BUSINESS.........................................................87
Section 6.4 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.....................87
Section 6.5 ADVANCES, INVESTMENTS AND LOANS............................................89
Section 6.6 TRANSACTIONS WITH AFFILIATES...............................................89
Section 6.7 OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS....................................89
Section 6.8 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL CONTRACTS..................90
Section 6.9 LIMITATION ON ACTIONS......................................................90
Section 6.10 RESTRICTED PAYMENTS........................................................91
Section 6.11 PAYMENTS OF SUBORDINATED DEBT, ETC.........................................92
Section 6.12 SALE LEASEBACKS............................................................92
Section 6.13 USE OF PROCEEDS............................................................92
Section 6.14 SENIOR NOTES...............................................................92
ARTICLE VII EVENTS OF DEFAULT.....................................................................93
Section 7.1 EVENTS OF DEFAULT..........................................................93
Section 7.2 ACCELERATION; REMEDIES.....................................................95
ARTICLE VIII THE AGENT............................................................................96
Section 8.1 APPOINTMENT................................................................96
Section 8.2 DELEGATION OF DUTIES.......................................................96
Section 8.3 EXCULPATORY PROVISIONS.....................................................96
Section 8.4 RELIANCE BY ADMINISTRATIVE AGENT...........................................97
Section 8.5 NOTICE OF DEFAULT..........................................................97
Section 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.....................98
Section 8.7 INDEMNIFICATION............................................................98
Section 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY............................99
<Page>
Section 8.9 SUCCESSOR ADMINISTRATIVE AGENT.............................................99
ARTICLE IX MISCELLANEOUS..........................................................................99
Section 9.1 AMENDMENTS, WAIVERS AND RELEASE OF COLLATERAL..............................99
Section 9.2 NOTICES...................................................................102
Section 9.3 NO WAIVER; CUMULATIVE REMEDIES............................................102
Section 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................................103
Section 9.5 PAYMENT OF EXPENSES AND TAXES.............................................103
Section 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS................104
Section 9.7 ADJUSTMENTS; SET-OFF......................................................107
Section 9.8 TABLE OF CONTENTS AND SECTION HEADINGS....................................108
Section 9.9 COUNTERPARTS..............................................................108
Section 9.10 EFFECTIVENESS.............................................................108
Section 9.11 SEVERABILITY..............................................................108
Section 9.12 INTEGRATION...............................................................109
Section 9.13 GOVERNING LAW.............................................................109
Section 9.14 CONSENT TO JURISDICTION AND SERVICE OF PROCESS............................109
Section 9.15 CONFIDENTIALITY...........................................................109
Section 9.16 ACKNOWLEDGMENTS...........................................................110
Section 9.17 WAIVERS OF JURY TRIAL.....................................................110
ARTICLE X GUARANTY...............................................................................111
Section 10.1 THE GUARANTY..............................................................111
Section 10.2 BANKRUPTCY................................................................111
Section 10.3 NATURE OF LIABILITY.......................................................112
Section 10.4 INDEPENDENT OBLIGATION....................................................112
Section 10.5 AUTHORIZATION.............................................................112
Section 10.6 RELIANCE..................................................................113
Section 10.7 WAIVER....................................................................113
Section 10.8 LIMITATION ON ENFORCEMENT.................................................114
Section 10.9 CONFIRMATION OF PAYMENT...................................................114
</Table>
<Page>
SCHEDULES
<Table>
Schedule 1.1(a) Account Designation Letter
Schedule 1.1(b) Investments
Schedule 1.1(c) Liens
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(d) Form of Revolving Note
Schedule 2.2(d) Form of Swingline Note
Schedule 2.4(c) Form of Tranche A Term Note
Schedule 2.5(c) Form of Tranche B Term Note
Schedule 2.11 Form of Notice of Conversion/Extension
Schedule 2.19 2.19 Certificate
Schedule 3.1 Material Contingencies Not Otherwise Shown on Financial Statements
Schedule 3.6 Litigation
Schedule 3.12 Subsidiaries
Schedule 3.16 Intellectual Property
Schedule 3.19(a) Real Property Owned by Borrower and its Restricted Subsidiaries
Schedule 3.19(b) Locations of Tangible Personal Property
Schedule 3.19(c) Chief Executive Offices
Schedule 3.22 Labor Matters
Schedule 3.25 Material Contracts
Schedule 4.1(b) Form of Secretary's Certificate
Schedule 4.2(f)(ii) Significant Mortgaged Properties
Schedule 4.2(j) Form of Solvency Certificate
Schedule 5.5(b) Insurance
Schedule 5.13 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 9.2 Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
</Table>
<Page>
CREDIT AGREEMENT, dated as of July 31, 2001, among SUIZA FOODS CORPORATION,
a Delaware corporation (the "BORROWER"), those Domestic Subsidiaries of the
Borrower identified as a "Guarantor" on the signature pages hereto and such
other Domestic Subsidiaries of the Borrower as may from time to time become a
party hereto (collectively, the "GUARANTORS" and individually, a "GUARANTOR"),
the several banks and other financial institutions as may from time to time
become parties to this Agreement (collectively, the "LENDERS"; and individually,
a "LENDER"), FIRST UNION NATIONAL BANK, a national banking association, as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT"), BANK ONE, NA, a national banking association, as
syndication agent for the Lenders hereunder (in such capacity, the "SYNDICATION
AGENT") and FLEET NATIONAL BANK, HARRIS TRUST AND SAVINGS BANK and SUNTRUST
BANK, as co-documentation agents for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Borrower proposes: (a) to acquire Dean Foods Company, a
Delaware corporation (the "ACQUIRED COMPANY") and its Subsidiaries pursuant to a
series of transactions in which the Acquired Company will be merged (the
"MERGER") with and into a wholly-owned Subsidiary of the Borrower and the former
shareholders of the Acquired Company will receive a combination of both stock
and cash; (b) to acquire all partnership and other ownership interests currently
held by Dairy Farmers of America, Inc. ("DFA") in Suiza Dairy Group, L.P.,
pursuant to a series of transactions in which DFA will receive cash, operating
assets, and certain contingent obligations of the Borrower; (c) to refinance
certain existing funded debt of the Acquired Company, the Borrower and their
respective Subsidiaries (excluding outstanding senior unsecured notes and
certain other indebtedness); (d) to obtain senior bank credit facilities in
connection therewith which will also be used to (i) provide for working capital
and other general corporate purposes of the Borrower and its Subsidiaries; (ii)
to pay accrued quarterly dividends to the shareholders of the Acquired Company
as agreed between the Borrower and the Acquired Company; and (iii) to pay fees,
costs and expenses incurred in connection with the foregoing transactions;
WHEREAS, in connection with the foregoing, the Borrower has requested that
the Lenders make loans and other financial accommodations to the Borrower as
more particularly described herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Borrower on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
<Page>
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, terms defined in the preamble and recitals to
this Agreement have the meanings therein indicated, and the following terms have
the following meanings:
"ACCOUNT DESIGNATION LETTER" shall mean the Notice of Account Designation
Letter dated the Funding Date from the Borrower to the Administrative Agent
substantially in the form attached hereto as SCHEDULE 1.1(A).
"ACQUIRED COMPANY" shall have the meaning set forth in the first recital
above.
"ACQUISITION" shall mean the acquisition of the Acquired Company and its
Subsidiaries by the Borrower and/or one of its wholly-owned Subsidiaries
pursuant to the terms of the Acquisition Documents.
"ACQUISITION DOCUMENTS" shall mean the Merger Agreement, the DFA Agreement,
and each other document executed and delivered in connection with the
consummation of the Acquisition as amended, modified or supplemented from time
to time.
"ADDITIONAL CREDIT PARTY" shall mean each Person that becomes a Guarantor by
execution of a Joinder Agreement in accordance with Section 5.10.
"ADMINISTRATIVE AGENT" shall have the meaning set forth in the preamble to
this Agreement and any successors in such capacity.
"AFFILIATE" shall mean as to any Person, any Person that directly or
indirectly controls, or is under common control with, or is controlled by, such
Person and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children and siblings) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise); PROVIDED that, in any
event, any Person that owns directly or indirectly securities having 10% or more
of the 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 other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Borrower or any of its
Subsidiaries, and (b) none of the Restricted Subsidiaries of the Borrower shall
be considered Affiliates. For purposes hereof, all Unrestricted Subsidiaries
shall be considered Affiliates.
2
<Page>
"AGENTS" shall mean a collective reference to the Administrative Agent and
the Syndication Agent.
"AGREEMENT" shall mean this Credit Agreement, as amended, modified,
supplemented or restated from time to time in accordance with its terms.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "PRIME
RATE" shall mean, at any time, the rate of interest per annum publicly announced
from time to time by First Union at its principal office as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any
day, the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds 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 on the next succeeding Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive in the absence of manifest error) that
it is unable to ascertain the Federal Funds Effective Rate, for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the first sentence of
this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
opening of business on the date of such change.
"ALTERNATE BASE RATE LOANS" shall mean Loans that bear interest at an
interest rate based on the Alternate Base Rate.
"APPLICABLE PERCENTAGE" shall mean, for any day, the rate per annum set
forth below opposite the applicable level (the "LEVEL") then in effect, it being
understood that the Applicable Percentage for (i) Revolving Loans and Tranche A
Term Loans which are Alternate Base Rate Loans shall be the percentage set forth
under the column "Alternate Base Rate Margin for Revolving Loans and Tranche A
Term Loans", (ii) Revolving Loans and Tranche A Term Loans which are LIBOR Rate
Loans shall be the percentage set forth under the column "LIBOR Rate Margin for
Revolving Loans, Tranche A Term Loans and the Letter of Credit Fee", (iii)
Tranche B Term Loans which are Alternate Base Rate Loans shall be the percentage
set forth under the column "Alternate Base Rate Margin for Tranche B Term Loan,"
(iv) Tranche B Term Loans which are LIBOR Rate Loans shall be the percentage set
forth under the column "LIBOR Rate Margin for Tranche B Term Loans", (v) the
Letter of Credit Fee shall be the percentage set forth under the column "LIBOR
Rate Margin for Revolving Loans, Tranche A Term Loans and Letter
3
<Page>
of Credit Fee" and (vi) the Commitment Fee shall be the percentage set forth
under the column "Commitment Fee":
<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------------
LIBOR Rate
Alternate Margin for
Base Rate Revolving Alternate
Margin for Loans, Tranche Base Rate LIBOR Rate
Revolving Loans A Term Loans Margin for Margin for
Leverage and Tranche A and Letter of Tranche B Tranche B
Level Ratio Term Loans Credit Fee Term Loans Term Loans Commitment Fee
- ------------------------------------------------------------------------------------------------------------------------
I => 4.00 to 1.0 1.50% 2.75% 2.00% 3.25% 0.50%
- ------------------------------------------------------------------------------------------------------------------------
II < 4.00 to 1.0 1.25% 2.50% 1.75% 3.00% 0.50%
but
=> 3.50 to 1.0
- ------------------------------------------------------------------------------------------------------------------------
III < 3.50 to 1.0 1.00% 2.25% 1.50% 2.75% 0.50%
but
=> 3.00 to 1.0
- ------------------------------------------------------------------------------------------------------------------------
IV < 3.00 to 1.0 0.75% 2.00% 1.50% 2.75% 0.50%
but
=> 2.50 to 1.0
- ------------------------------------------------------------------------------------------------------------------------
V < 2.50 to 1.0 0.50% 1.75% 1.25% 2.50% 0.375%
but
=> 2.00 to 1.0
- ------------------------------------------------------------------------------------------------------------------------
VI < 2.00 to 1.0 0.25% 1.50% 1.25% 2.50% 0.375%
- ------------------------------------------------------------------------------------------------------------------------
</Table>
The Applicable Percentage shall, in each case, be determined and adjusted
quarterly on the date (each an "INTEREST DETERMINATION DATE") three (3) Business
Days after the earlier of the date on which the Borrower provides or is required
to provide to the Administrative Agent the annual or quarterly financial
information and certifications in accordance with the provisions of Sections
5.1(a), 5.1(b) and 5.2(c). Such Applicable Percentage shall be effective from
such Interest Determination Date until the next such Interest Determination
Date. The initial Applicable Percentages on the Funding Date shall be based on
Level II (or Level I, if applicable) until the date which is six months
following the Funding Date. After the Funding Date, if the Borrower shall fail
to provide the annual or quarterly financial information and certifications in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(c), the
Applicable Percentage from such Interest Determination Date shall, on the date
five (5) Business Days after the date by which the Borrower was so required to
provide such financial information and certifications to the Administrative
Agent and the Lenders, be based on Level I until such time as the date which is
three (3) Business Days after the date such information and certifications are
provided, whereupon the Level shall be determined by the then current Leverage
Ratio.
4
<Page>
"APPROVED FUND" means with respect to any Lender under the Tranche A Term
Loan or the Tranche B Term Loan that is a fund that invests in bank loans, any
other fund that invests in commercial loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"ARRANGERS" shall mean a collective reference to FUSI and BOCM and
"ARRANGER" shall mean either of them.
"ASSET DISPOSITION" shall mean the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Restricted
Subsidiary whether by sale, lease, transfer or otherwise; provided, however, the
term "Asset Disposition" shall not include (i) Specified Sales, (ii) the sale,
lease or transfer of assets permitted by Section 6.4(c)(iii) or (iv) hereof, or
(iii) any Equity Issuance.
"ATTRIBUTED PRINCIPAL AMOUNT" means, on any day, with respect to any
Permitted Receivables Financing entered into by any Credit Party, the aggregate
amount (with respect to any such transaction, the "INVESTED AMOUNT") paid to, or
borrowed by, such Person as of such date under such Permitted Receivables
Financing, MINUS the aggregate amount received by the applicable Receivables
Financier and applied to the reduction of the Invested Amount under such
Permitted Receivables Financing.
"BANK ONE" shall mean Bank One, NA and its successors and assigns.
"BANKRUPTCY CODE" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BOCM" shall mean Banc One Capital Markets, Inc.
"BORROWER" shall have the meaning set forth in the first paragraph of this
Agreement.
"BORROWING DATE" shall mean, in respect of any Loan, the date such Loan is
made.
"BUSINESS" shall have the meaning set forth in Section 3.10.
"BUSINESS DAY" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; PROVIDED, HOWEVER, that when used in
connection with a rate determination, borrowing or payment in respect of a LIBOR
Rate Loan, the term "Business Day" shall also exclude any day on which banks in
London, England are not open for dealings in Dollar deposits in the London
interbank market.
"CAPITAL LEASE" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
5
<Page>
"CAPITAL LEASE OBLIGATIONS" shall mean the aggregate principal component of
capitalized lease obligations relating to a Capital Lease determined in
accordance with GAAP.
"CAPITAL STOCK" shall mean (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPTIVE INSURANCE COMPANY" shall mean any Subsidiary of the Borrower that
is organized and subject to regulation as an insurance company, or the principal
purpose of which is to procure insurance for the benefit of the Borrower and/or
its Restricted Subsidiaries.
"CASH EQUIVALENTS" shall mean (i) securities issued directly or fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("GOVERNMENT OBLIGATIONS"), (ii)
U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof (any such bank being an
"APPROVED BANK"), in each case with maturities of not more than one year from
the date of acquisition, (iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any commercial
paper or variable rate notes issued by, or guaranteed by any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or
the equivalent thereof) or better by Moody's and maturing within nine months of
the date of acquisition, (iv) repurchase agreements with a bank or trust company
(including a Lender) or a recognized securities dealer having capital and
surplus in excess of $500,000,000 for direct obligations issued by or fully
guaranteed by the United States of America, (v) obligations of any state of the
United States or any political subdivision thereof rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's having maturities of not more than one year from the date of acquisition
thereof, and (vi) auction preferred stock rated in the highest short-term credit
rating category by S&P or Moody's.
"CHANGE OF CONTROL" shall mean (a) any Person or two or more Persons acting
in concert (other than Mr. Gregg L. Engles or any other director or officer of
the Borrower as of the Funding Date), shall have acquired "beneficial
ownership," directly or indirectly, of, or shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over, Voting
Stock of the Borrower (or other securities convertible into such Voting Stock,
excluding for purposes hereof, the TIPES and/or the debentures issued in
connection therewith) representing 20% or more of the combined voting power of
all Voting Stock of the Borrower, or (b) during any period of up to 25
consecutive months, commencing after the Funding Date, individuals who at the
beginning of such 25 month period were directors of the Borrower (together with
any new director whose election by the
6
<Page>
Borrower's Board of Directors or whose nomination for election by the Borrower's
shareholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors of the Borrower then in
office. As used herein, "beneficial ownership" shall have the meaning provided
in Rule 13d-3 of the Securities and Exchange Commission under the Securities Act
of 1934.
"CLOSING DATE" shall mean the date of this Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL" shall mean a collective reference to the collateral which is
identified in, and at any time will be covered by, the Security Documents.
"COMMITMENT" shall mean the Revolving Commitment, the LOC Commitment, the
Swingline Commitment, the Tranche A Term Loan Commitment and the Tranche B Term
Loan Commitment, individually or collectively, as appropriate.
"COMMITMENT FEE" shall have the meaning set forth in Section 2.6(a).
"COMMITMENT PERCENTAGE" shall mean the Revolving Commitment Percentage, the
LOC Commitment Percentage, the Tranche A Term Loan Commitment Percentage and/or
the Tranche B Term Loan Commitment Percentage, as appropriate.
"COMMITMENT PERIOD" shall mean the period from and including the Funding
Date to but not including the Revolving Commitment Termination Date.
"COMMITMENT TRANSFER SUPPLEMENT" shall mean a Commitment Transfer
Supplement, substantially in the form of SCHEDULE 9.6(c).
"COMMONLY CONTROLLED ENTITY" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"COMPLIANCE CERTIFICATE" shall mean the officer's certificate delivered
pursuant to Section 5.2(c).
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean for any period, all
expenditures of the Borrower and its Restricted Subsidiaries on a consolidated
basis for such period which in accordance with GAAP would be classified as
capital expenditures, including without limitation, Capital Lease Obligations.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in the
determination of Consolidated Net Income for such period, has been deducted for
(A) Consolidated Interest Expense and interest
7
<Page>
paid on debentures issued in connection with the TIPES, (B) total federal,
state, local and foreign income, value added and similar taxes, (C)
depreciation, amortization expense and other non-cash charges, (D) pro forma
cost savings add-backs resulting from non-recurring charges related to the
Acquisition and other acquisitions to the extent permitted hereunder, as
permitted pursuant to Regulation S-X of the Securities Exchange Act of 1934 or
as approved by the Agents, and (E) other adjustments to Consolidated EBITDA
reasonably acceptable to the Agents. Except as otherwise provided herein, the
applicable period shall be for the four consecutive quarters ending as of the
date of computation.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, all interest
expense of the Borrower and its Restricted Subsidiaries other than interest
expense associated with any TIPES or the debentures issued in connection
therewith, including the interest component under Capital Leases and the implied
interest component under Permitted Receivables Financings, plus net amounts
payable (or minus net amounts receivable) under Hedging Agreements, minus
interest income for such period, in each case as determined in accordance with
GAAP. Except as otherwise provided herein, the applicable period shall be for
the four consecutive quarters ending as of the date of computation.
"CONSOLIDATED NET INCOME" shall mean, for any period, net income (excluding
extraordinary items) after taxes for such period of the Borrower and its
Restricted Subsidiaries on a consolidated basis, as determined in accordance
with GAAP, including net income attributable to Permitted Acquisitions after
giving effect to such Permitted Acquisitions on a Pro Forma Basis. Except as
otherwise provided herein, the applicable period shall be for the four
consecutive quarters ending as of the date of computation.
"CONSOLIDATED NET WORTH" shall mean, as at any date, the sum for the
Borrower and its Subsidiaries (including minority interests in any Person owned
by the Borrower or any of its Subsidiaries), determined on a consolidated basis
without duplication in accordance with GAAP, of (a) the amount of Capital Stock
PLUS (b) the amount of additional paid in capital PLUS (c) the amount of
retained earnings (or, in the case of any retained earnings deficit, MINUS the
amount of such deficit) PLUS (d) the aggregate outstanding face amount of TIPES;
PROVIDED, HOWEVER, TIPES shall only be included in the calculation of
Consolidated Net Worth if the following criteria are met: (i) at least five
quarters remain during which the Borrower may defer interest payments on the
subordinated debentures related to the TIPES, and (ii) if a Default or an Event
of Default shall have occurred and be continuing, no interest or principal is
paid on the subordinated debentures related to the TIPES.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"CREDIT DOCUMENTS" shall mean this Agreement, each of the Notes, any Joinder
Agreement, the Letters of Credit, the LOC Documents and the Security Documents.
"CREDIT PARTY" shall mean any of the Borrower or the Guarantors.
8
<Page>
"CREDIT PARTY OBLIGATIONS" shall mean, without duplication, (i) all of the
obligations of the Credit Parties to the Lenders (including the Issuing Lender)
and the Administrative Agent, whenever arising, under this Agreement, the Notes
or any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a filing of a petition of bankruptcy
under the Bankruptcy Code with respect to any Credit Party, regardless of
whether such interest is an allowed claim under the Bankruptcy Code) and (ii)
all liabilities and obligations, whenever arising, owing from the Borrower or
any of its Restricted Subsidiaries to any Lender, or any Affiliate of a Lender,
arising under any Hedging Agreement.
"DEBT ISSUANCE" shall mean the issuance of any Indebtedness for borrowed
money by any Credit Party or any of its Restricted Subsidiaries (excluding, for
purposes hereof, any Equity Issuance or any Indebtedness of the Borrower and its
Restricted Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof
(other than Indebtedness permitted to be incurred pursuant to Section 6.1(j))).
"DEFAULT" shall mean the occurrence of any of the events specified in
Section 7.1, whether or not any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"DEFAULTING LENDER" shall mean, at any time, any Lender that, at such time
(a) has failed to make a Loan required pursuant to the terms of this Credit
Agreement, including the funding of a Participation Interest in accordance with
the terms hereof, (b) has failed to pay to the Administrative Agent or any other
Lender an amount owed by such Lender pursuant to the terms of this Credit
Agreement, or (c) has been deemed insolvent by its principal regulator or has
become subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"DFA AGREEMENT" shall mean that certain Securities Purchase Agreement, dated
as of April 4, 2001, among Suiza Foods Corporation, Suiza Dairy Group Holdings,
Inc., Suiza Dairy Group, L.P., Suiza Southeast, LLC, Dairy Farmers of America,
Inc., and, for certain limited purposes, Mid-Am Capital, L.L.C., as the same may
be amended or modified from time to time.
"DOLLARS" and "$" shall mean dollars in lawful currency of the United States
of America.
"DOMESTIC LENDING OFFICE" shall mean, initially, the office of each Lender
designated as such Lender's Domestic Lending Office shown on SCHEDULE 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which Alternate Base Rate Loans of such Lender are to be made.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any written
notice, claim, demand or other communication (collectively, a "claim") by any
other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response
9
<Page>
costs, damages to natural resources or other Property, personal injuries, fines
or penalties arising out of, based on or resulting from (a) the presence, or
release into the environment, of any Hazardous Material at any location, whether
or not owned by such Person, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any
Governmental Authority for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and any
claim by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Agreement.
"EQUITY ISSUANCE" shall mean any issuance by the Borrower or any of its
Restricted Subsidiaries to any Person which is not a Credit Party of (a) shares
of its Capital Stock, (b) any shares of its Capital Stock pursuant to the
exercise of options or warrants or (c) any shares of its Capital Stock pursuant
to the conversion of any debt securities to equity.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which any Credit Party or any of its Subsidiaries is a member, (ii)
solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 4l2(c)(l1) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which any Credit Party or any of its Subsidiaries is a member and (iii)
which are under common control with any Credit Party or any of its Subsidiaries
within the meaning of Section 4001(a)(14) of ERISA.
"EURODOLLAR RESERVE PERCENTAGE" shall mean for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities, as defined in Regulation D of such Board as
in effect from time to time, or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"EVENT OF DEFAULT" shall mean any of the events specified in Section 7.1;
PROVIDED, HOWEVER, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.
10
<Page>
"EXCESS CASH FLOW" shall mean, with respect to any fiscal year period of the
Borrower and its Restricted Subsidiaries on a consolidated basis, an amount
equal to (a) Consolidated EBITDA for such period MINUS (b) Consolidated Capital
Expenditures for such period MINUS (c) Scheduled Funded Debt Payments made
during such period MINUS (d) Consolidated Interest Expense MINUS (e) amounts
paid in respect of federal, state, local and foreign income, value added and
similar taxes with respect to such period MINUS (f) voluntary principal
prepayments of Term Loans made during such period.
"EXCLUDED DISPOSITION" shall mean the sale, transfer, or other disposition
of (a) any motor vehicles or other equipment no longer used or useful in the
business of the Borrower or any of its Restricted Subsidiaries, (b) any
inventory, materials and other assets in the ordinary course of business and on
ordinary business terms, (c) Permitted Investments described in clause (a) of
the definition thereof and (d) an Investment Tax Credit.
"EXTENSION OF CREDIT" shall mean, as to any Lender, the making of a Loan by
such Lender or the issuance of, or participation in, a Letter of Credit by such
Lender.
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning set forth in the
definition of "Alternate Base Rate".
"FEE LETTER" shall mean the letter agreement dated April 4, 2001 addressed
to the Borrower from the Administrative Agent, the Syndication Agent, First
Union Securities, Inc. and Banc One Capital Markets, Inc., as amended, modified
or otherwise supplemented.
"FIRST TIER FOREIGN SUBSIDIARY" shall mean any direct Foreign Subsidiary of
a Credit Party.
"FIRST UNION" shall mean First Union National Bank, a national banking
association and its successors and assigns.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"FUNDED DEBT" shall mean, with respect to any Person, without duplication,
(a) all Indebtedness of such Person other than Indebtedness of the types
referred to in clause (e), (g), (i) and (m) of the definition of "Indebtedness"
set forth in this Section 1.1, (b) all Funded Debt of others of the type
referred to in clause (a) above secured by (or for which the holder of such
Funded Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (c) all Guaranty Obligations of such Person with respect to Funded
Debt of the type referred to in clause (a) above of another Person and (d)
Funded Debt of the type referred to in clause (a) above of any partnership or
unincorporated joint venture in which such Person is legally obligated or has a
reasonable expectation of being liable with respect thereto.
11
<Page>
"FUNDING DATE" shall mean the date upon which all the conditions precedent
to funding under Section 4.2 shall have been satisfied, and the initial
Extensions of Credit are made hereunder, which in any event, shall occur no
later than December 31, 2001.
"FUSI" shall mean First Union Securities, Inc.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States of America applied on a consistent basis, SUBJECT, HOWEVER, in the
case of determination of compliance with the financial covenants set out in
Section 5.9 to the provisions of Section 1.3.
"GOVERNMENT ACTS" shall have the meaning set forth in Section 2.18.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTOR" shall mean any of the Domestic Subsidiaries identified as a
"Guarantor" on the signature pages hereto and the Additional Credit Parties
which execute a Joinder Agreement, together with their successors and permitted
assigns.
"GUARANTY" shall mean the guaranty of the Guarantors set forth in Article X.
"GUARANTY OBLIGATIONS" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor, (ii) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements or similar agreements or arrangements) for the benefit of any holder
of Indebtedness of such other Person, (iii) to lease or purchase assets,
securities or services primarily for the purpose of assuring the holder of such
Indebtedness, or (iv) to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under
12
<Page>
any Environmental Law and (c) any other chemical or other material or substance,
exposure to which is now or hereafter prohibited, limited or regulated under any
Environmental Law.
"HEDGING AGREEMENTS" shall mean, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates, or
currency values, including, without limitation, any interest rate swap, cap or
collar agreement or similar arrangement between such Person and one or more
counterparties, any foreign currency exchange agreement, currency protection
agreements, or other interest or exchange rate hedging agreements.
"INDEBTEDNESS" shall mean, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
assets purchased by such Person (other than customary reservations or retentions
of title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations of such Person issued or assumed as the deferred
purchase price of assets or services purchased by such Person (other than trade
debt incurred in the ordinary course of business and due within six months of
the incurrence thereof) which would appear as liabilities on a balance sheet of
such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements, (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
assets owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed, (g) all Guaranty Obligations of such Person with
respect to Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases, (i) all obligations of such
Person under Hedging Agreements, (j) the maximum amount of all standby letters
of credit issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (l) the principal balance outstanding under any synthetic lease,
tax retention operating lease, accounts receivable securitization program,
off-balance sheet loan or similar off-balance sheet financing product, including
without limitation, the outstanding Attributed Principal Amount under any
Permitted Receivables Financing, and (m) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer; PROVIDED, HOWEVER, it is understood and agreed that Indebtedness
shall not include the TIPES or debentures issued by the Borrower or its
Subsidiaries in connection therewith.
"INSOLVENCY" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"INSOLVENT" shall mean being in a condition of Insolvency.
"INTELLECTUAL PROPERTY" has the meaning set forth in Section 3.16.
13
<Page>
"INTEREST COVERAGE RATIO" means, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis for the twelve month period
ending on the last day of any fiscal quarter of the Borrower, the ratio of (a)
Consolidated EBITDA to (b) Consolidated Interest Expense. Notwithstanding the
foregoing, for purposes of calculating the Interest Coverage Ratio of the
Borrower and its Restricted Subsidiaries for the first three complete fiscal
quarters to occur after the Funding Date, the interest component thereof shall
be determined by annualizing such component such that for the first complete
fiscal quarter to occur after the Funding Date such component would be
multiplied by four (4), the first two complete fiscal quarters would be
multiplied by two (2) and the first three complete fiscal quarters would be
multiplied by one and one-third (1-1/3).
"INTEREST PAYMENT DATE" shall mean (a) as to any Alternate Base Rate Loan or
Swingline Loan, the last day of each March, June, September and December and on
the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an Interest
Period of three months or less, the last day of such Interest Period, and (c) as
to any LIBOR Rate Loan having an Interest Period longer than three months, the
day which is three months after the first day of such Interest Period and the
last day of such Interest Period.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Rate Loan,
(i) during the Syndication Period, the period commencing on the
Borrowing Date or conversion date, as the case may be, with respect to such
LIBOR Rate Loan and ending seven (7) days thereafter; and
(ii) initially after the Syndication Period, the period commencing on
the Borrowing Date or conversion date, as the case may be, with respect to
such LIBOR Rate Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in the Notice of Borrowing or Notice of Conversion
given with respect thereto; and
(iii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Rate Loan and
ending one, two, three or six months thereafter, as selected by the Borrower
by irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period with
respect thereto;
PROVIDED that the foregoing provisions are subject to the
following:
(A) if any Interest Period pertaining to a LIBOR Rate Loan would
otherwise end on a day that 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;
(B) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no
14
<Page>
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant
calendar month;
(C) if the Borrower shall fail to give notice as provided above,
the Borrower shall be deemed to have selected an Alternate Base Rate
Loan to replace the affected LIBOR Rate Loan;
(D) no Interest Period in respect of any Loan shall otherwise
extend beyond the applicable Maturity Date for such Loan and, further
with regard to the Tranche A Term Loans and the Tranche B Term Loans,
no Interest Period shall extend beyond any principal amortization
payment date unless the portion of such Tranche A Term Loan or Tranche
B Term Loan consisting of Alternate Base Rate Loans together with the
portion of such Tranche A Term Loan and Tranche B Term Loan consisting
of LIBOR Rate Loans with Interest Periods expiring prior to or
concurrently with the date such principal amortization payment date is
due, is at least equal to the amount of such principal amortization
payment due on such date; and
(E) no more than sixteen (16) LIBOR Rate Loans may be in effect
at any time. For purposes hereof, LIBOR Rate Loans with different
Interest Periods shall be considered as separate LIBOR Rate Loans, even
if they shall begin on the same date and have the same duration,
although borrowings, extensions and conversions may, in accordance with
the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new LIBOR Rate Loan with a single Interest
Period.
"INVESTMENT" shall mean an investment, in cash or by delivery of assets
made, directly or indirectly in, to or from any Person, whether by acquisition
of shares of Capital Stock, property, assets, indebtedness or other obligations
or securities or by loan, advance, capital contribution or otherwise.
"INVESTMENT TAX CREDIT" shall mean an investment tax credit to which the
Borrower or any of its Restricted Subsidiaries may be entitled pursuant to the
Puerto Rico Agricultural Tax Incentives Act of 1995.
"ISSUING LENDER" shall mean either (i) First Union or (ii) Bank One.
"ISSUING LENDER FEES" shall have the meaning set forth in Section 2.6(c).
"JOINDER AGREEMENT" shall mean a Joinder Agreement substantially in the form
of SCHEDULE 5.10, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10.
"LENDER" shall have the meaning set forth in the first paragraph of this
Agreement.
15
<Page>
"LETTERS OF CREDIT" shall mean any letter of credit issued by the Issuing
Lender pursuant to the terms hereof, as such Letters of Credit may be amended,
modified, extended, renewed or replaced from time to time.
"LETTER OF CREDIT FEE" shall have the meaning set forth in Section 2.6(b).
"LEVERAGE RATIO" shall mean, with respect to the Borrower and its Restricted
Subsidiaries on a consolidated basis for the twelve month period ending on the
last day of any fiscal quarter, the ratio of (a) Funded Debt of the Borrower and
its Restricted Subsidiaries on a consolidated basis on the last day of such
period, minus cash held on a consolidated basis on such day, to (b) Consolidated
EBITDA for such period.
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; PROVIDED, HOWEVER, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%). If, for any reason, neither of such rates is available,
then "LIBOR" shall mean the rate per annum at which, as determined by the
Administrative Agent, Dollars in an amount comparable to such LIBOR Rate Loan
are being offered to leading banks at approximately 11:00 A.M. London time, two
(2) Business Days prior to the commencement of the applicable Interest Period
for settlement in immediately available funds by leading banks in the London
interbank market for a period equal to the Interest Period selected.
"LIBOR LENDING OFFICE" shall mean, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on SCHEDULE 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be made.
"LIBOR RATE" shall mean a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR RATE LOAN" shall mean Loans the rate of interest applicable to which
is based on the LIBOR Rate.
16
<Page>
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any 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 and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"LOAN" shall mean a Revolving Loan, a Swingline Loan, the Tranche A Term
Loan and/or the Tranche B Term Loan, as appropriate.
"LOC COMMITMENT" shall mean the commitment of the Issuing Lender to issue
Letters of Credit and with respect to each Lender, the commitment of such Lender
to purchase participation interests in the Letters of Credit up to such Lender's
LOC Committed Amount as specified in SCHEDULE 2.1(a), as such amount may be
reduced from time to time in accordance with the provisions hereof.
"LOC COMMITMENT PERCENTAGE" shall mean, for each Lender, the percentage
identified as its LOC Commitment Percentage on SCHEDULE 2.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 9.6(c).
"LOC COMMITTED AMOUNT" shall mean, collectively, the aggregate amount of all
of the LOC Commitments of the Lenders to issue and participate in Letters of
Credit as referenced in Section 2.3 and, individually, the amount of each
Lender's LOC Commitment as specified in SCHEDULE 2.1(a).
"LOC DOCUMENTS" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or (ii) any collateral security for such obligations.
"LOC OBLIGATIONS" shall mean, at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit PLUS (ii) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing Lender but
not theretofore reimbursed.
"MANDATORY BORROWING" shall have the meaning set forth in Section 2.2(b)(ii)
or Section 2.3(e), as the context may require.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
business, operations, property, prospects or financial condition of the Borrower
and its Restricted Subsidiaries (including the Acquired Company and its
Subsidiaries) taken as a whole, (b) the ability of the Borrower and Guarantors,
taken as a whole, to perform their obligations, when such obligations are
required to be performed, under this Agreement, any of the Notes or any other
Credit Document or (c) the validity or enforceability of this Agreement, any of
the Notes or any
17
<Page>
of the other Credit Documents or the rights or remedies of the Administrative
Agent or the Lenders hereunder or thereunder.
"MATERIAL CONTRACT" shall mean any contract or other arrangement, whether
written or oral, to which the Borrower or any of its Restricted Subsidiaries is
a party as to which the breach, nonperformance, cancellation or failure to renew
by any party thereto could reasonably be expected to have a Material Adverse
Effect.
"MATERIAL SUBSIDIARY" shall mean any Restricted Subsidiary (other than a
Receivables Financing SPC) of a Credit Party with assets of $100,000 or more;
provided, however, if the aggregate assets of Restricted Subsidiaries (other
than Receivables Financing SPCs) that are not Material Subsidiaries at any time
exceeds $1,000,000, the Borrower shall designate one or more of such Restricted
Subsidiaries as Material Subsidiaries such that, after giving effect to such
designations, the aggregate assets of Restricted Subsidiaries (other than
Receivables Financing SPCs) that are not Material Subsidiaries shall be less
than $1,000,000.
"MATURITY DATE" shall mean (i) with respect to the Tranche A Term Loan, the
Tranche A Term Loan Maturity Date, (ii) with respect to the Tranche B Term Loan,
the Tranche B Term Loan Maturity Date and (iii) with respect to the Revolving
Loans and Swingline Loans, the Revolving Commitment Termination Date.
"MERGER AGREEMENT" shall mean that certain Agreement and Plan of Merger
dated as of April 4, 2001 by and among the Borrower, Blackhawk Acquisition Corp.
and the Acquired Company, as the same may be amended or modified from time to
time.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"MORTGAGE INSTRUMENT" shall have the meaning set forth in Section 4.2(f).
"MORTGAGE POLICIES" shall have the meaning set forth in Section 4.2(f).
"MORTGAGED PROPERTY" shall have the meaning set forth in Section 4.2(f).
"MULTIEMPLOYER PLAN" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" shall mean the aggregate cash proceeds received by any
Credit Party or any Restricted Subsidiary in respect of any Asset Disposition,
Equity Issuance or Debt Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and (b) taxes paid or payable as a result thereof; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by the Borrower or any Restricted Subsidiary in any Asset Disposition,
Equity Issuance or Debt Issuance.
18
<Page>
"NOTE" or "NOTES" shall mean the Revolving Notes, the Swingline Note, the
Tranche A Term Notes and/or the Tranche B Term Notes, collectively, separately
or individually, as appropriate.
"NOTICE OF BORROWING" shall mean the written notice of borrowing as
referenced and defined in Section 2.1(b)(i).
"NOTICE OF CONVERSION/EXTENSION" shall mean the written notice of extension
or conversion as referenced and defined in Section 2.11.
"OBLIGATIONS" shall mean, collectively, Loans and LOC Obligations.
"PARTICIPANT" shall have the meaning set forth in Section 9.6(b).
"PARTICIPATION INTEREST" shall mean the purchase by a Lender of a
participation interest in Swingline Loans as provided in Section 2.2(b)(ii) or
in Letters of Credit as provided in Section 2.3.
"PATENT LICENSE" shall mean all agreements, whether written or oral,
providing for the grant by or to a Credit Party of any right to manufacture, use
or sell any invention covered by a Patent, including, without limitation, any
thereof referred to in SCHEDULE 3.16.
"PATENTS" shall mean (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including, without
limitation, any thereof referred to in SCHEDULE 3.16, and (b) all applications
for letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any thereof referred to in SCHEDULE 3.16.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED ACQUISITION" shall mean an acquisition by the Borrower or any of
its Restricted Subsidiaries which (i) is an acquisition of a Person or assets of
a Person in a line of business permitted by Section 6.3 hereof, (ii) is in an
amount not greater than $100,000,000 (which amount shall be increased to
$300,000,000 at any time that the Leverage Ratio is less than 3.00 to 1.00 on a
Pro Forma Basis after giving effect to such acquisition) in total cash
consideration (after deducting cash on the balance sheet of the Person acquired
or included in the assets being acquired) for any single acquisition; PROVIDED,
HOWEVER, the total cash consideration (after deducting cash on the balance sheet
of the Person acquired or included in the assets being acquired) for any single
acquisition may exceed $100,000,000 (which amount shall be increased to
$300,000,000 at any time that the Leverage Ratio is less than 3.00 to 1.00 on a
Pro Forma Basis after giving effect to such acquisition) with the consent of the
Required Lenders, (iii) is approved by the Board of Directors or the requisite
shareholders of the Person being acquired or Person transferring the assets
being acquired, (iv) if an acquisition of Capital Stock of a Person, at least
51% of all issued and outstanding Capital Stock of such Person is acquired, and
(v) after giving effect to such acquisition
19
<Page>
on a Pro Forma Basis, the Borrower and its Restricted Subsidiaries are in
compliance with each of the financial covenants set forth in Section 5.9.
"PERMITTED INVESTMENTS" shall mean:
(a) cash or Cash Equivalents;
(b) Investments outstanding as of the Funding Date and identified in
SCHEDULE 1.1(b) or other investments outstanding as of the Funding Date not
exceeding in acquisition cost $20,000,000 in the aggregate;
(c) Investments by any Subsidiary of the Borrower in the Borrower and
Investments by any Credit Party in any other Credit Party;
(d) Permitted Acquisitions;
(e) operating deposit accounts with depository institutions;
(f) Hedging Agreements;
(g) (i) Investments permitted under Section 6.4(b) hereof, (ii)
investments received in connection with a disposition permitted by Section
6.4(c) hereof and (iii) indemnities executed in connection with the sale of
Investment Tax Credits;
(h) Investments by the Borrower and its Subsidiaries in the Capital
Stock of their Subsidiaries to the extent outstanding as of the Funding
Date;
(i) loans and advances to employees in the ordinary course of business
not exceeding $10,000,000 in the aggregate;
(j) deposits to secure bids, tenders, utilities, vendors, leases,
licenses, statutory obligations, surety and appeal bonds and other deposits
of like nature arising in the ordinary course of business;
(k) Investments by any Credit Party in a Receivables Financing SPC made
in connection with a Permitted Receivables Financing;
(l) Investments by the Borrower and its Subsidiaries in a Captive
Insurance Company in a cumulative amount from the Funding Date not to exceed
$75,000,000;
(m) additional Investments up to but not exceeding $80,000,000 in the
aggregate during each fiscal year, including investments in Unrestricted
Subsidiaries; PROVIDED, HOWEVER, that notwithstanding the foregoing, the
Borrower shall be permitted to make additional investments in Unrestricted
Subsidiaries during any fiscal year in an amount equal to the aggregate
amount of dividends and other distributions received by the Borrower or its
Restricted Subsidiaries from Unrestricted Subsidiaries and payments
20
<Page>
of Indebtedness by an Unrestricted Subsidiary to the Borrower or a
Restricted Subsidiary during such fiscal year; and
(n) Investments by the Borrower or any of its Restricted Subsidiaries,
each of which (i) existed before the time of acquisition of the Person or
assets of the Person who made such investment and (ii) was not made in
anticipation of such acquisition.
"PERMITTED LIENS" shall mean:
(a) Liens created by or otherwise existing, under or in connection with
this Agreement or the other Credit Documents in favor of the Lenders;
(b) Liens in connection with Hedging Agreements, but only (i) to the
extent such Liens secure obligations under Hedging Agreements with any
Lender or any Affiliate of a Lender, (ii) to the extent such Liens are on
the same collateral as to which the Administrative Agent on behalf of the
Lenders also has a Lien and (iii) if the provider of any such Hedging
Agreement and the Lenders shall share PARI PASSU in the collateral subject
to such Liens;
(c) Liens in existence on the Funding Date and listed on SCHEDULE
1.1(c);
(d) Liens imposed by any Governmental Authority for taxes, assessments
or charges not yet delinquent or that are being contested in good faith and
by appropriate proceedings if, unless the amount thereof is not material
with respect to it or its financial condition, adequate reserves with
respect thereto are maintained on the books of the Borrower or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
(e) carriers', warehousemen's, mechanics', materialmen's, landlord's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith and by appropriate proceedings;
(f) Liens securing judgments but only to the extent for an amount and
for a period not resulting in an Event of Default under Section 7.1(f)
hereof;
(g) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(h) deposits or pledges to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, licenses, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(i) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor
21
<Page>
imperfections in title thereto that, in the aggregate, are not material in
amount, and that do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(j) Liens upon personal Property acquired after the date hereof (by
purchase, construction or otherwise), or upon other assets acquired after
the date hereof as a capital expenditure, by the Borrower or any of its
Subsidiaries, each of which Liens either (i) existed on such assets before
the time of its acquisition and was not created in anticipation thereof or
(ii) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost of such
assets; PROVIDED that (A) no such Lien shall extend to or cover any assets
of the Borrower or such Subsidiary other than the assets so acquired, (B)
the principal amount of Indebtedness secured by any such Lien shall at no
time exceed the fair market value (as determined in good faith by a
Responsible Officer of the Borrower) of such assets at the time they were
acquired, and (C) the principal amount of all Indebtedness (other than
Indebtedness permitted by Section 6.1(c) hereof) secured by such Liens shall
not exceed $30,000,000 in the aggregate;
(k) Liens upon real Property heretofore leased or leased after the date
hereof (under operating or Capital Leases) in the ordinary course of
business by the Borrower or any of its Subsidiaries in favor of the lessor
created at the inception of the lease transaction, securing obligations of
the Borrower or any of its Subsidiaries under or in respect of such lease
and extending to or covering only the Property subject to such lease and
improvements thereon;
(l) Liens of sellers or creditors of sellers of farm products
encumbering such farm products when sold to any of the Borrower or its
Subsidiaries pursuant to the Food Security Act of 1985 or pursuant to
similar state laws to the extent such Liens may be deemed to extend to the
assets of such Person;
(m) protective Uniform Commercial Code filings with respect to personal
Property leased by, or consigned to, any of the Borrower or its
Subsidiaries;
(n) Liens upon assets of Unrestricted Subsidiaries;
(o) Liens in favor of a Receivables Financing SPC or Receivables
Financier created or deemed to exist in connection with a Permitted
Receivables Financing (including any related filings of any financing
statements), but only to the extent that any such Lien relates to the
applicable Transferred Assets actually sold, contributed, financed or
otherwise conveyed or pledged pursuant to such transaction;
(p) any extension, renewal or replacement of the foregoing; PROVIDED,
HOWEVER, that the Liens permitted under this clause (q) shall not be spread
to cover any additional Indebtedness or assets and the principal amount of
such Indebtedness shall not be increased;
22
<Page>
(q) Liens securing Indebtedness to the extent such Indebtedness is
permitted pursuant to Section 6.1(g) and Section 6.1(k); and
(r) Liens upon personal Property or fixtures granted in connection with
the energy saving program with Enron Energy Services Operations Inc.
("ENRON"); provided that (A) no such Lien shall extend to or cover any
assets of the Borrower or any Subsidiary other than assets purchased by
Enron and transferred to the Borrower or any Subsidiary in connection with
that program, and (B) the aggregate value of the assets covered by such
Liens shall not exceed $50,000,000 in the aggregate at any time.
"PERMITTED RECEIVABLES FINANCING" shall mean any one or more receivables
financings in which (a) any Credit Party (i) sells (as determined in accordance
with GAAP) any accounts receivable, notes receivable, rights to future lease
payments or residuals (collectively, together with certain property relating
thereto and the right to collections thereon, being the "TRANSFERRED ASSETS") to
any Person that is not a Subsidiary or Affiliate of the Borrower (with respect
to any such transaction, the "RECEIVABLES FINANCIER"), (ii) borrows from such
Receivables Financier and secures such borrowings by a pledge of such
Transferred Assets and/or (iii) otherwise finances its acquisition of such
Transferred Assets and, in connection therewith, conveys an interest in such
Transferred Assets to the Receivables Financier or (b) any Credit Party sells,
conveys or otherwise contributes any Transferred Assets to a Receivables
Financing SPC, which Receivables Financing SPC then (i) sells (as determined in
accordance with GAAP) any such receivables (or an interest therein) to any
Receivables Financier, (ii) borrows from such Receivables Financier and secures
such borrowings by a pledge of such receivables or (iii) otherwise finances its
acquisition of such receivables and, in connection therewith, conveys an
interest in such receivables to the Receivables Financier, PROVIDED that (A) the
aggregate Attributed Principal Amount for all such receivables financings shall
not at any time exceed $400,000,000, (B) such receivables financing shall not
involve any recourse to any Credit Party for any reason other than (x)
repurchases of non-eligible receivables or (y) indemnifications for losses other
than credit losses related to the receivables sold in such financing, (C) the
Administrative Agent shall be reasonably satisfied with the structure of and
documentation for any such transaction and that the terms of such transaction,
including the discount at which receivables are sold, the term of the commitment
of the Receivables Financier thereunder and any termination events, shall be (in
the good faith understanding of the Administrative Agent) consistent with those
prevailing in the market for similar transactions involving a receivables
originator/servicer of similar credit quality and a receivables pool of similar
characteristics and (D) the documentation for such transaction shall not be
amended or modified in any material manner without the prior written approval of
the Administrative Agent.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PLAN" shall mean, at any particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or,
23
<Page>
if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT" shall mean the Pledge Agreement dated as of the Funding
Date given by the Borrower and certain of the other Credit Parties to the
Administrative Agent, as amended, modified or supplemented from time to time in
accordance with its terms.
"PRIME RATE" shall have the meaning set forth in the definition of Alternate
Base Rate.
"PRO FORMA BASIS" shall mean, with respect to any Permitted Acquisition or
any dividend made pursuant to Section 6.10(f), that such Permitted Acquisition
or dividend shall be deemed to have occurred or made, as applicable, as of the
first day of the four fiscal-quarter period ending as of the most recent fiscal
quarter end preceding the date of such Permitted Acquisition or dividend.
"PRO FORMA OPENING STATEMENTS" shall have the meaning set forth in Section
4.2(s).
"PROPERTY" shall mean any tangible property or assets, whether real or
personal.
"PURCHASING LENDERS" shall have the meaning set forth in Section 9.6(c).
"REAL PROPERTIES" shall have the meaning set forth in Section 3.10(a).
"RECEIVABLES FINANCIER" shall have the meaning set forth in the definition
of Permitted Receivables Financing.
"RECEIVABLES FINANCING SPC" shall mean, in respect of any Permitted
Receivables Financing, any Subsidiary or Affiliate of the Borrower to which any
Credit Party sells, contributes or otherwise conveys any Transferred Assets in
connection with such Permitted Receivables Financing.
"RECOVERY EVENT" shall mean the receipt by the Borrower or any of its
Restricted Subsidiaries of any cash insurance proceeds or condemnation award
payable by reason of theft, loss, physical destruction or damage, taking or
similar event with respect to any of their respective property or assets.
"REGISTER" shall have the meaning set forth in Section 9.6(d).
"REORGANIZATION" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"REPORTABLE EVENT" shall mean any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty-day notice period is
waived under PBGC Reg. Section 4043.
24
<Page>
"REQUIRED LENDERS" shall mean Lenders holding in the aggregate greater than
50% of (i) the outstanding Loans plus the aggregate unused Revolving Commitments
at such time (and Participation Interests therein) (treating for purposes hereof
in the case of Swingline Loans and LOC Obligations, in the case of the Swingline
Lender and the Issuing Lender, only the portion of the Swingline Loans and the
LOC Obligations of the Swingline Lender and the Issuing Lender, respectively,
which is not subject to the Participation Interests of the other Lenders and, in
the case of the Lenders other than the Swingline Lender and the Issuing Lender,
the Participation Interests of such Lenders in Swingline Loans and LOC
Obligations hereunder as direct Obligations of such Lenders) or (ii) if the
Commitments have been terminated, the outstanding Loans and Participation
Interests (including the Participation Interests of the Swingline Lender in
Swingline Loans and the Participation Interests of the Issuing Lender in any
Letters of Credit); PROVIDED, HOWEVER, that if any Lender shall be a Defaulting
Lender at such time, then there shall be excluded from the determination of
Required Lenders, Obligations (including Participation Interests) owing to such
Defaulting Lender and such Defaulting Lender's Commitments or, after termination
of the Commitments, the principal balance of the Obligations owing to such
Defaulting Lender.
"REQUIREMENT OF LAW" shall mean, as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents of such
Person, and each law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"RESPONSIBLE OFFICER" of any Person shall mean the President, the Chief
Executive Officer, the Chief Financial Officer or the Vice President/Treasurer
of such Person.
"RESTRICTED PAYMENT" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
the Borrower or any of its Restricted Subsidiaries, now or hereafter
outstanding, (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of Capital Stock of the Borrower or any of its Restricted
Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of the Borrower or any of its
Restricted Subsidiaries, now or hereafter outstanding, or (d) any payment or
prepayment of principal or premium, if any, or interest on, redemption,
purchase, retirement defeasance, sinking fund or similar payment with respect
to, any Subordinated Indebtedness, including, without limitation, payments
required to be made on the subordinated debentures issued in connection with the
TIPES.
"RESTRICTED SUBSIDIARIES" shall mean the Subsidiaries of the Borrower other
than the Unrestricted Subsidiaries.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding up to such Lender's Revolving Committed Amount as
specified in SCHEDULE 2.1(a), as such
25
<Page>
amount may be reduced from time to time in accordance with the provisions hereof
or in connection with any assignment made in accordance with the provisions of
Section 9.6(c).
"REVOLVING COMMITMENT PERCENTAGE" shall mean, for each Lender, the
percentage identified as its Revolving Commitment Percentage on SCHEDULE 2.1(a),
as such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the earlier to occur of
(a) July 15, 2007 or (b) the sixth anniversary of the Closing Date.
"REVOLVING COMMITTED AMOUNT" shall mean, collectively, the aggregate amount
of all Revolving Commitments as referenced in Section 2.1(a), as such amount may
be increased or reduced from time to time in accordance with the provisions
hereof, and, individually, the amount of each Lender's Revolving Commitment as
specified on SCHEDULE 2.1(a), as such amount may be reduced from time to time in
accordance with the provisions hereof or in connection with any assignment made
in accordance with the provisions of Section 9.6(c).
"REVOLVING LOAN" shall have the meaning set forth in Section 2.1.
"REVOLVING NOTE" or "REVOLVING NOTES" shall mean the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Revolving Loans provided
pursuant to Section 2.1(d), individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented, extended, renewed
or replaced from time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"SCHEDULED FUNDED DEBT PAYMENTS" shall mean, as of any date of determination
for the Borrower and its Restricted Subsidiaries, the sum of all scheduled
payments of principal on Funded Debt for the applicable period ending on the
date of determination (including the principal component of payments due on
Capital Leases during the applicable period ending on the date of
determination).
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto.
"SECURITY AGREEMENT" shall mean the Security Agreement dated as of the
Funding Date given by the Borrower and the other Credit Parties to the
Administrative Agent, as amended, modified or supplemented from time to time in
accordance with its terms.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the Pledge
Agreement, the Mortgage Instruments and such other documents executed and
delivered in connection with the attachment and perfection of the Administrative
Agent's security interests and liens arising thereunder, including, without
limitation, UCC financing statements.
"SENIOR NOTES" shall mean those certain Senior Debt Securities issued
pursuant to the terms of the Indenture dated as of January 15, 1998 by and
between Dean Foods Company and
26
<Page>
The Bank of New York, as trustee, and issued pursuant to the Indenture dated as
of January 15, 1995 by and between Dean Foods Company and Bank of America
Illinois, as trustee, in an aggregate principal amount of $700,000,000.
"SINGLE EMPLOYER PLAN" shall mean any Plan which is not a Multiemployer
Plan.
"SPECIFIED SALES" shall mean (a) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of business, (b)
the sale, transfer, lease or other disposition of obsolete or worn-out property
or assets in the ordinary course of business, (c) the sale, transfer or other
disposition of Permitted Investments described in clause (a) of the definition
thereof, and (d) from and after the Funding Date, transfers of Capital Stock and
assets pursuant to the DFA Agreement as in effect on the Closing Date and (e)
other sales, transfers and dispositions required or requested by any
Governmental Authority in connection with any required consent to transactions
contemplated by the Acquisition Documents or other dispositions of Capital Stock
and assets for a period not to exceed eighteen (18) months following the Funding
Date and in an aggregate amount for all such dispositions pursuant to this
subsection (e) not to exceed $150,000,000.
"SUBORDINATED INDEBTEDNESS" shall mean any publicly issued Indebtedness
specifically subordinated in right of payment and priority to the Credit Party
Obligations, with customary payment blockage and other provisions, having a
maturity no earlier than the date which is one year after the Tranche B Term
Loan Maturity Date and which shall otherwise be on terms and conditions
reasonably satisfactory to the Agents.
"SUBSIDIARY" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time outstanding up
to the Swingline Committed Amount, and the commitment of the Lenders to purchase
participation interests in the Swingline Loans as provided in Section
2.2(b)(ii), as such amounts may be reduced from time to time in accordance with
the provisions hereof.
"SWINGLINE COMMITTED AMOUNT" shall mean the amount of the Swingline Lender's
Swingline Commitment as specified in Section 2.2(a).
"SWINGLINE LENDER" shall mean First Union, in its capacity as such.
27
<Page>
"SWINGLINE LOAN" or "SWINGLINE LOANS" shall have the meaning set forth in
Section 2.2(a).
"SWINGLINE NOTE" shall mean the promissory note of the Borrower in favor of
the Swingline Lender evidencing the Swingline Loans provided pursuant to Section
2.2(d), as such promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"SYNDICATION PERIOD" shall mean the period from the Funding Date through the
earlier of (i) the date that is 90 days following the Funding Date or (ii) the
date on which the Arrangers determine in their sole discretion that syndication
is complete.
"TAXES" shall have the meaning set forth in Section 2.19.
"TERM LOANS" shall mean collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TIPES" shall mean the 5-1/2% Trust Convertible Preferred Securities issued
by Suiza Capital Trust II, a Delaware statutory business trust, in accordance
with the terms and provisions of the Amended and Restated Declaration of Trust
dated as of March 24, 1998 among the Borrower, as Depositor, Wilmington Trust
Company, as Delaware Trustee, Wilmington Trust Company, as Property Trustee,
Michelle P. Goolsby and Barry F. Fromberg, each an Administrative Trustee and
the Holders (as defined therein), as the same may be amended from time to time.
"TRADEMARK LICENSE" shall mean any agreement, written or oral, providing for
the grant by or to a Credit Party of any right to use any Trademark, including,
without limitation, any thereof referred to in SCHEDULE 3.16.
"TRADEMARKS" shall mean (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade dress and
service marks, logos and other source or business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in SCHEDULE 3.16, and (b) all renewals
thereof, including, without limitation, any thereof referred to in SCHEDULE
3.16.
"TRANCHE" shall mean the collective reference to LIBOR Rate Loans whose
Interest Periods begin and end on the same day. A Tranche may sometimes be
referred to as a "LIBOR Tranche".
"TRANCHE A TERM LOAN" shall have the meaning set forth in Section 2.4(a).
"TRANCHE A TERM LOAN COMMITMENT" shall mean, with respect to each
Lender, the commitment of such Lender to make its portion of the Tranche A Term
Loan in a principal
28
<Page>
amount equal to such Lender's Tranche A Term Loan Commitment Percentage of the
Tranche A Term Loan Committed Amount (and for purposes of making determinations
of Required Lenders hereunder after the Closing Date, the principal amount
outstanding on the Tranche A Term Loan).
"TRANCHE A TERM LOAN COMMITMENT PERCENTAGE" shall mean, for any Lender, the
percentage identified as its Tranche A Term Loan Commitment Percentage on
SCHEDULE 2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 9.6.
"TRANCHE A TERM LOAN COMMITTED AMOUNT" shall have the meaning set forth in
Section 2.4(a).
"TRANCHE A TERM LOAN MATURITY DATE" shall mean the earlier to occur of (a)
July 15, 2007 and (b) the sixth anniversary of the Closing Date.
"TRANCHE A TERM NOTE" or "TRANCHE A TERM NOTES" shall mean the promissory
notes of the Borrower in favor of each of the Lenders evidencing the portion of
the Tranche A Term Loan provided pursuant to Section 2.4(c), individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"TRANCHE B TERM LOAN" shall have the meaning set forth in Section 2.5(a).
"TRANCHE B TERM LOAN COMMITMENT" shall mean, with respect to each Lender,
the commitment of such Lender to make its portion of the Tranche B Term Loan in
a principal amount equal to such Lender's Tranche B Term Loan Commitment
Percentage of the Tranche B Term Loan Committed Amount (and for purposes of
making determinations of Required Lenders hereunder after the Closing Date, the
principal amount outstanding on the Tranche B Term Loan).
"TRANCHE B TERM LOAN COMMITMENT PERCENTAGE" shall mean, for any Lender, the
percentage identified as its Tranche B Term Loan Commitment Percentage on
SCHEDULE 2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 9.6.
"TRANCHE B TERM LOAN COMMITTED AMOUNT" shall have the meaning set forth in
Section 2.5(a).
"TRANCHE B TERM LOAN MATURITY DATE" shall mean the earlier to occur of (a)
July 15, 2008 and (b) the seventh anniversary of the Closing Date.
"TRANCHE B TERM NOTE" or "TRANCHE B TERM NOTES" shall mean the promissory
notes of the Borrower in favor of each of the Lenders evidencing the portion of
the Tranche B Term Loan provided pursuant to Section 2.5(c), individually or
collectively, as appropriate, as such
29
<Page>
promissory notes may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time.
"TRANSFER EFFECTIVE DATE" shall have the meaning set forth in each
Commitment Transfer Supplement.
"TRANSFERRED ASSETS" shall have the meaning set forth in the definition of
Permitted Receivables Financing.
"2.19 CERTIFICATE" shall have the meaning set forth in Section 2.19.
"TYPE" shall mean, as to any Loan, its nature as an Alternate Base Rate
Loan, LIBOR Rate Loan or Swingline Loan, as the case may be.
"UPDATED PROJECTIONS" shall have the meaning set forth in Section 4.2(q).
"UNRESTRICTED SUBSIDIARIES" shall mean (a) Suiza International Holding
Company and its Subsidiaries (including Suiza Netherlands, B.V., Leche Celta,
S.L., and Lacteos de Santander, S.A.), (b) Continental Can Company, Inc., and
its Subsidiaries (including Dixie Holding, Inc., and Franklin Plastics, Inc.),
(c) on and after the Funding Date, E.B.I Foods, Ltd. and its Subsidiaries, (d)
each Captive Insurance Company and (e) any other Subsidiary of the Borrower
designated as such in writing, with the reasonable consent of the Agents.
"VOTING STOCK" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have such defined meanings when used in the Notes or other
Credit Documents or any certificate or other document made or delivered
pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The word "including" is by way of example and not limitation.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
30
<Page>
SECTION 1.3 ACCOUNTING TERMS.
Unless otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Borrower delivered to the Lenders;
PROVIDED that, if the Borrower notifies the Administrative Agent that it wishes
to amend any covenant in Section 5.9 to eliminate the effect of any change in
GAAP on the operation of such covenant (or if the Administrative Agent notifies
the Borrower that the Required Lenders wish to amend Section 5.9 for such
purpose), then the Credit Parties' compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender at
the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
SECTION 2.1 REVOLVING LOANS.
(a) REVOLVING COMMITMENT. During the Commitment Period, subject to the
terms and conditions hereof, each Lender with a Revolving Commitment
severally agrees to make revolving credit loans ("REVOLVING LOANS") to the
Borrower from time to time for the purposes hereinafter set forth; PROVIDED,
HOWEVER, that (i) with regard to each Lender individually, the sum of such
Lender's share of outstanding Revolving Loans PLUS such Lender's Revolving
Commitment Percentage of Swingline Loans PLUS such Lender's LOC Commitment
Percentage of LOC Obligations shall not exceed such Lender's Revolving
Commitment and (ii) with regard to the Lenders collectively, the sum of the
aggregate amount of outstanding Revolving Loans PLUS Swingline Loans PLUS
LOC Obligations shall not exceed the Revolving Committed Amount. For
purposes hereof, the aggregate amount available hereunder shall be EIGHT
HUNDRED MILLION DOLLARS ($800,000,000) (as such aggregate maximum amount may
be reduced from time to time as provided in Section 2.7, the "REVOLVING
COMMITTED AMOUNT"). Revolving Loans may consist of Alternate Base Rate Loans
or LIBOR Rate Loans, or a combination thereof, as the Borrower may request,
and may be repaid and reborrowed in accordance with the provisions hereof.
LIBOR Rate Loans shall be made
31
<Page>
by each Lender at its LIBOR Lending Office and Alternate Base Rate Loans at
its Domestic Lending Office.
(b) REVOLVING LOAN BORROWINGS.
(i) NOTICE OF BORROWING. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephone notice promptly
confirmed in writing which confirmation may be by fax) to the
Administrative Agent not later than 1:30 P.M. (Charlotte, North
Carolina time) on the date of the requested borrowing in the case of
Alternate Base Rate Loans, and on the third Business Day prior to the
date of the requested borrowing in the case of LIBOR Rate Loans. Each
such request for borrowing shall be irrevocable and shall specify (A)
that a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, (D) whether the borrowing shall be comprised of
Alternate Base Rate Loans, LIBOR Rate Loans or a combination thereof,
and if LIBOR Rate Loans are requested, the Interest Period(s) therefor.
A form of Notice of Borrowing (a "NOTICE OF BORROWING") is attached
hereto as SCHEDULE 2.1(b)(i). If the Borrower shall fail to specify in
any such Notice of Borrowing (I) an applicable Interest Period in the
case of a LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (II) the type of
Revolving Loan requested, then such notice shall be deemed to be a
request for an Alternate Base Rate Loan hereunder. The Administrative
Agent shall give notice to each Lender promptly upon receipt of each
Notice of Borrowing, the contents thereof and each such Lender's share
thereof.
(ii) ADVANCES. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in Section 9.2, or at such other
office as the Administrative Agent may designate in writing, by 4:00
P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent by crediting the
account of the Borrower on the books of such office with the aggregate
of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(c) REPAYMENT. The principal amount of all Revolving Loans shall be due
and payable in full on the Revolving Commitment Termination Date.
(d) REVOLVING NOTES. Each Lender's Revolving Loans shall be evidenced
by a duly executed promissory note of the Borrower to such Lender in the
original amount of such Lender's Revolving Commitment and in substantially
the form of SCHEDULE 2.1(d).
32
<Page>
SECTION 2.2 SWINGLINE LOAN SUBFACILITY.
(a) SWINGLINE COMMITMENT. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans to the Borrower
(each a "SWINGLINE LOAN" and, collectively, the "SWINGLINE LOANS") for the
purposes hereinafter set forth; PROVIDED, HOWEVER, (i) the aggregate amount
of Swingline Loans outstanding at any time shall not exceed ONE HUNDRED
MILLION DOLLARS ($100,000,000) (the "SWINGLINE COMMITTED AMOUNT"), and (ii)
the sum of the aggregate amount of outstanding Revolving Loans PLUS
Swingline Loans PLUS LOC Obligations shall not exceed the Revolving
Committed Amount. Swingline Loans hereunder may be repaid and reborrowed in
accordance with the provisions hereof.
(b) SWINGLINE LOAN BORROWINGS.
(i) NOTICE OF BORROWING AND DISBURSEMENT. The Swingline Lender
will make Swingline Loans available to the Borrower on any Business Day
upon request made by the Borrower not later than 4:00 P.M. (Charlotte,
North Carolina time) on such Business Day. A request for a Swingline
Loan borrowing shall be made in the form of a Notice of Borrowing with
appropriate modifications. Swingline Loan borrowings hereunder shall be
made in minimum amounts of $100,000 and integral multiples of $100,000
in excess thereof.
(ii) REPAYMENT OF SWINGLINE LOANS. Each Swingline Loan borrowing
shall be due and payable on or before the fifth Business Day after the
date on which such Swingline Loan borrowing is made or such later date
to which the Swingline Lender and Borrower agree and, in any event, on
the Maturity Date. The Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Administrative
Agent, demand repayment of its Swingline Loans by way of a Revolving
Loan borrowing, in which case the Borrower shall be deemed to have
requested a Revolving Loan borrowing comprised entirely of Alternate
Base Rate Loans in the amount of such Swingline Loans; PROVIDED,
HOWEVER, that, in the following circumstances, any such demand shall
also be deemed to have been given one Business Day prior to each of (i)
the Maturity Date, (ii) the occurrence of any Event of Default
described in Section 7.1(e), (iii) upon acceleration of the Credit
Party Obligations hereunder, whether on account of an Event of Default
described in Section 7.1(e) or any other Event of Default, and (iv) the
exercise of remedies in accordance with the provisions of Section 7.2
hereof (each such Revolving Loan borrowing made on account of any such
deemed request therefor as provided herein being hereinafter referred
to as a "MANDATORY BORROWING"). Each Lender with a Revolving Commitment
hereby irrevocably agrees to make such Revolving Loans promptly upon
any such request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date NOTWITHSTANDING (I) the amount of
Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise
33
<Page>
required hereunder, (II) whether any conditions specified in Section
4.2 are then satisfied, (III) whether a Default or an Event of Default
then exists, (IV) failure of any such request or deemed request for
Revolving Loans to be made by the time otherwise required in Section
2.1(b)(i), (V) the date of such Mandatory Borrowing, or (VI) any
reduction in the Revolving Committed Amount or termination of the
Revolving Commitments immediately prior to such Mandatory Borrowing or
contemporaneously therewith. In the event that any Mandatory Borrowing
cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower),
then each Lender with a Revolving Commitment hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from
the Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in such
Swingline Loans ratably based upon its respective Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2), PROVIDED that (A) all interest
payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective
participation is purchased, and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the
purchasing Lender shall be required to pay to the Swingline Lender
interest on the principal amount of such participation purchased for
each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for
such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Borrowing, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base
Rate.
(c) INTEREST ON SWINGLINE LOANS. Subject to the provisions of
Section 2.10(b), Swingline Loans shall bear interest at a per annum
rate equal to the lesser of (i) the Alternate Base Rate PLUS the
Applicable Percentage for Revolving Loans that are Alternate Base Rate
Loans or (ii) a rate agreed upon by the Swingline Lender and the
Borrower. Interest on Swingline Loans shall be payable in arrears on
each Interest Payment Date.
(d) SWINGLINE NOTE. The Swingline Loans shall be evidenced by a
duly executed promissory note of the Borrower to the Swingline Lender
in the original amount of the Swingline Committed Amount and
substantially in the form of SCHEDULE 2.2(d).
SECTION 2.3 LETTER OF CREDIT SUBFACILITY.
(a) ISSUANCE. Subject to the terms and conditions hereof and of
the LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require, during the Commitment Period the
Issuing Lender shall issue, and the Lenders having a Revolving
Commitment shall participate in, Letters of Credit for the
34
<Page>
account of the Borrower from time to time upon request in a form
acceptable to the Issuing Lender; PROVIDED, HOWEVER, that (i) the
aggregate amount of LOC Obligations shall not at any time exceed ONE
HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (the "LOC COMMITTED
AMOUNT"), (ii) the sum of the aggregate amount of Revolving Loans PLUS
Swingline Loans PLUS LOC Obligations shall not at any time exceed the
Revolving Committed Amount, (iii) all Letters of Credit shall be
denominated in Dollars and (iv) Letters of Credit shall be issued for
lawful corporate purposes and may be issued as standby letters of
credit, including in connection with workers' compensation and other
insurance programs, and trade letters of credit. Except as otherwise
expressly agreed upon by the Issuing Lenders and the Administrative
Agent, no Letter of Credit shall have an original expiry date more than
twelve (12) months from the date of issuance; PROVIDED, HOWEVER, so
long as no Default or Event of Default has occurred and is continuing
and subject to the other terms and conditions to the issuance of
Letters of Credit hereunder, the expiry dates of Letters of Credit may
be extended annually or periodically from time to time on the request
of the Borrower or by operation of the terms of the applicable Letter
of Credit to a date not more than twelve (12) months from the date of
extension; PROVIDED, FURTHER, that no Letter of Credit, as originally
issued or as extended, shall have an expiry date extending beyond the
date which is five (5) Business Days prior to the Revolving Commitment
Termination Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry date of each Letter of Credit
shall be a Business Day. First Union shall be the Issuing Lender on all
Letters of Credit issued on or after the Funding Date. All currently
outstanding letters of credit issued by First Union for the account of
the Borrower, its Subsidiaries, or any predecessor-in-interest of any
of them, shall, as of the Funding Date, be considered Letters of Credit
issued and subject to the terms of this Credit Agreement.
(b) NOTICE AND REPORTS. The request for the issuance of a Letter
of Credit shall be submitted to the Issuing Lender at least three (3)
Business Days prior to the requested date of issuance. The Issuing
Lender will promptly upon request provide to the Administrative Agent
for dissemination to the Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, expiry date as well as
any payments or expirations which may have occurred. The Issuing Lender
will further provide to the Administrative Agent promptly upon request
copies of the Letters of Credit. The Issuing Lender will provide to the
Administrative Agent promptly upon request a summary report of the
nature and extent of LOC Obligations then outstanding.
(c) PARTICIPATIONS. Each Lender with a Revolving Commitment, upon
issuance of a Letter of Credit (other than a Letter of Credit in an
original face amount of less than $1,000,000), shall be deemed to have
purchased without recourse a risk participation from the Issuing Lender
in such Letter of Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal to its LOC
Commitment Percentage of the obligations under such Letter of Credit
and shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the
Issuing Lender therefor and discharge when due, its LOC
35
<Page>
Commitment Percentage of the obligations arising under such Letter of
Credit, unless the Issuing Lender acted with gross negligence or
willful misconduct in issuing such Letter of Credit. Without limiting
the scope and nature of each Lender's participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed
as required hereunder or under any LOC Document, each such Lender shall
pay to the Issuing Lender its LOC Commitment Percentage of such
unreimbursed drawing in same day funds on the day of notification by
the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) below if such notice is received at or
before 2:00 P.M. (Charlotte, North Carolina time), otherwise such
payment shall be made at or before 12:00 Noon (Charlotte, North
Carolina time) on the Business Day next succeeding the day such notice
is received. The obligation of each Lender to so reimburse the Issuing
Lender shall be absolute and unconditional and shall not be affected by
the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as
hereinafter provided.
(d) REIMBURSEMENT. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent. The Borrower shall reimburse the Issuing Lender
on the day of drawing under any Letter of Credit (either with the
proceeds of a Swingline Loan or Revolving Loan obtained hereunder or
otherwise) in same day funds as provided herein or in the LOC
Documents. If the Borrower shall fail to reimburse the Issuing Lender
as provided herein, the unreimbursed amount of such drawing shall bear
interest at a per annum rate equal to the Alternate Base Rate plus the
Applicable Percentage. Unless the Borrower shall immediately notify the
Issuing Lender and the Administrative Agent of its intent to otherwise
reimburse the Issuing Lender, the Borrower shall be deemed to have
requested a Swingline Loan, or if and to the extent Swingline Loans
shall not be available, a Revolving Loan in the amount of the drawing
as provided in subsection (e) below, the proceeds of which will be used
to satisfy the reimbursement obligations. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of set-off, counterclaim or
defense to payment the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or unenforceability
of the Letter of Credit. The Issuing Lender will promptly notify the
other Lenders of the amount of any unreimbursed drawing and each Lender
shall promptly pay to the Administrative Agent for the account of the
Issuing Lender in Dollars and in immediately available funds, the
amount of such Lender's LOC Commitment Percentage of such unreimbursed
drawing, unless the Issuing Lender acted with gross negligence or
willful misconduct in issuing such Letter of Credit. Such payment shall
be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M.
(Charlotte, North Carolina time), otherwise such payment shall be made
at or before 12:00 Noon (Charlotte, North Carolina time) on the
Business Day next succeeding the day such notice is received. If such
Lender does not pay such amount to the Issuing
36
<Page>
Lender in full upon such request, such Lender shall, on demand, pay to
the Administrative Agent for the account of the Issuing Lender interest
on the unpaid amount during the period from the date of such drawing
until such Lender pays such amount to the Issuing Lender in full at a
rate per annum equal to, if paid within two (2) Business Days of the
date of drawing, the Federal Funds Effective Rate and thereafter at a
rate equal to the Alternate Base Rate. Each Lender's obligation to make
such payment to the Issuing Lender, and the right of the Issuing Lender
to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
Credit Party Obligations hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) REPAYMENT WITH REVOLVING LOANS. On any day on which the
Borrower shall have requested, or been deemed to have requested, (i) a
Swingline Loan borrowing to reimburse a drawing under a Letter of
Credit, the Swingline Lender shall make the Swingline Loan advance
pursuant to the terms of the request or deemed request in accordance
with the provisions for Swingline Loan advances hereunder, or (ii) a
Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Lenders that a Revolving
Loan has been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a Revolving Loan
borrowing comprised entirely of Alternate Base Rate Loans (each such
borrowing, a "MANDATORY BORROWING") shall be immediately made (without
giving effect to any termination of the Commitments pursuant to Section
7.2) PRO RATA based on each Lender's respective Revolving Commitment
Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2) and in the case of both clauses
(i) and (ii) the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon
any such request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date NOTWITHSTANDING (i) the amount of
Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 4.2 are then satisfied,
(iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Loan to be
made by the time otherwise required in Section 2.1(b), (v) the date of
such Mandatory Borrowing, or (vi) any reduction in the Revolving
Committed Amount after any such Letter of Credit may have been drawn
upon. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower), then each such Lender
hereby agrees that it shall forthwith fund (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) its Participation Interests in the outstanding LOC
Obligations; PROVIDED, FURTHER, that in the event any Lender shall fail
to fund its Participation Interest on the day the Mandatory Borrowing
would otherwise have occurred, then the amount of such Lender's
unfunded
37
<Page>
Participation Interest therein shall bear interest payable to the
Issuing Lender upon demand, at the rate equal to, if paid within two
(2) Business Days of such date, the Federal Funds Effective Rate, and
thereafter at a rate equal to the Alternate Base Rate.
(f) DESIGNATION OF SUBSIDIARIES AS ACCOUNT PARTIES.
Notwithstanding anything to the contrary set forth in this Agreement,
including without limitation Section 2.3(a), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Subsidiary of the Borrower,
provided that notwithstanding such statement, the Borrower shall be the
actual account party for all purposes of this Agreement for such Letter
of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of
Credit.
(g) MODIFICATION, EXTENSION. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) UNIFORM CUSTOMS AND PRACTICES. The Issuing Lender shall
have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits(the "UCP"), or the International
Standby Practices 1998 ("ISP"), in each case as published as of the
date of issue by the International Chamber of Commerce, in which case
the UCP or ISP, as applicable, may be incorporated therein and deemed
in all respects to be a part thereof.
SECTION 2.4 TRANCHE A TERM LOAN FACILITY.
(a) TRANCHE A TERM LOAN. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, each Lender
severally agrees to make available to the Borrower on the Funding Date such
Lender's Tranche A Term Loan Commitment Percentage of a term loan in Dollars
(the "TRANCHE A TERM LOAN") in the aggregate principal amount of NINE HUNDRED
MILLION DOLLARS ($900,000,000) (the "TRANCHE A TERM LOAN COMMITTED AMOUNT") for
the purposes set forth in Section 3.11. The Tranche A Term Loan may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the
Borrower may request. LIBOR Rate Loans shall be made by each Lender at its LIBOR
Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.
Amounts repaid on the Tranche A Term Loan may not be reborrowed.
(b) REPAYMENT OF TRANCHE A TERM LOAN. The principal amount of the Tranche A
Term Loan shall be repaid in twenty-two (22) consecutive quarterly installments
and one additional payment as follows, unless accelerated sooner pursuant to
Section 7.2:
<Table>
<Caption>
================================ ===============================================
Principal Amortization Payment Tranche A Term Loan
Date Principal Amortization Payment
-------------------------------- -----------------------------------------------
March 31, 2002 $16,875,000
-------------------------------- -----------------------------------------------
June 30, 2002 $16,875,000
-------------------------------- -----------------------------------------------
38
<Page>
<Caption>
================================ ===============================================
Principal Amortization Payment Tranche A Term Loan
Date Principal Amortization Payment
-------------------------------- -----------------------------------------------
September 30, 2002 $16,875,000
-------------------------------- -----------------------------------------------
December 31, 2002 $16,875,000
-------------------------------- -----------------------------------------------
March 31, 2003 $33,750,000
-------------------------------- -----------------------------------------------
June 30, 2003 $33,750,000
-------------------------------- -----------------------------------------------
September 30, 2003 $33,750,000
-------------------------------- -----------------------------------------------
December 31, 2003 $33,750,000
-------------------------------- -----------------------------------------------
March 31, 2004 $33,750,000
-------------------------------- -----------------------------------------------
June 30, 2004 $33,750,000
-------------------------------- -----------------------------------------------
September 30, 2004 $33,750,000
-------------------------------- -----------------------------------------------
December 31, 2004 $33,750,000
-------------------------------- -----------------------------------------------
March 31, 2005 $39,375,000
-------------------------------- -----------------------------------------------
June 30, 2005 $39,375,000
-------------------------------- -----------------------------------------------
September 30, 2005 $39,375,000
-------------------------------- -----------------------------------------------
December 31, 2005 $39,375,000
-------------------------------- -----------------------------------------------
March 31, 2006 $45,000,000
-------------------------------- -----------------------------------------------
June 30, 2006 $45,000,000
-------------------------------- -----------------------------------------------
September 30, 2006 $45,000,000
-------------------------------- -----------------------------------------------
December 31, 2006 $45,000,000
-------------------------------- -----------------------------------------------
March 31, 2007 $56,250,000
-------------------------------- -----------------------------------------------
June 30, 2007 $56,250,000
-------------------------------- -----------------------------------------------
Tranche A Term Loan Maturity $112,500,000
Date
-------------------------------- -----------------------------------------------
</Table>
(c) TRANCHE A TERM NOTES. Each Lender's Tranche A Term Loan Commitment
Percentage of the Tranche A Term Loan Committed Amount shall be evidenced by a
duly executed promissory note of the Borrower to such Lender in substantially
the form of SCHEDULE 2.4(c).
SECTION 2.5 TRANCHE B TERM LOAN FACILITY.
(a) TRANCHE B TERM LOAN. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein, each Lender
39
<Page>
severally agrees to make available to the Borrower on the Funding Date such
Lender's Tranche B Term Loan Commitment Percentage of a term loan in Dollars
(the "TRANCHE B TERM LOAN") in the aggregate principal amount of ONE BILLION
DOLLARS ($1,000,000,000) (the "TRANCHE B TERM LOAN COMMITTED AMOUNT") for the
purposes set forth in Section 3.11. The Tranche B Term Loan may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the
Borrower may request. LIBOR Rate Loans shall be made by each Lender at its LIBOR
Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.
Amounts repaid on the Tranche B Term Loan may not be reborrowed.
(b) REPAYMENT OF TRANCHE B TERM LOAN. The principal amount of the Tranche B
Term Loan shall be repaid in twenty-four (24) quarterly installments and two (2)
subsequent semiannual installments as follows:
<Table>
<Caption>
================================ ============================================
Principal Amortization Payment Tranche B Term Loan
Date Principal Amortization Payment
-------------------------------- --------------------------------------------
March 31, 2002 $1,250,000
-------------------------------- --------------------------------------------
June 30, 2002 $1,250,000
-------------------------------- --------------------------------------------
September 30, 2002 $1,250,000
-------------------------------- --------------------------------------------
December 31, 2002 $1,250,000
-------------------------------- --------------------------------------------
March 31, 2003 $2,500,000
-------------------------------- --------------------------------------------
June 30, 2003 $2,500,000
-------------------------------- --------------------------------------------
September 30, 2003 $2,500,000
-------------------------------- --------------------------------------------
December 31, 2003 $2,500,000
-------------------------------- --------------------------------------------
March 31, 2004 $2,500,000
-------------------------------- --------------------------------------------
June 30, 2004 $2,500,000
-------------------------------- --------------------------------------------
September 30, 2004 $2,500,000
-------------------------------- --------------------------------------------
December 31, 2004 $2,500,000
-------------------------------- --------------------------------------------
March 31, 2005 $2,500,000
-------------------------------- --------------------------------------------
June 30, 2005 $2,500,000
-------------------------------- --------------------------------------------
September 30, 2005 $2,500,000
-------------------------------- --------------------------------------------
December 31, 2005 $2,500,000
-------------------------------- --------------------------------------------
March 31, 2006 $2,500,000
-------------------------------- --------------------------------------------
June 30, 2006 $2,500,000
-------------------------------- --------------------------------------------
September 30, 2006 $2,500,000
-------------------------------- --------------------------------------------
December 31, 2006 $2,500,000
-------------------------------- --------------------------------------------
40
<Page>
<Caption>
================================ ============================================
Principal Amortization Payment Tranche B Term Loan
Date Principal Amortization Payment
-------------------------------- --------------------------------------------
March 31, 2007 $2,500,000
-------------------------------- --------------------------------------------
June 30, 2007 $2,500,000
-------------------------------- --------------------------------------------
September 30, 2007 $2,500,000
-------------------------------- --------------------------------------------
December 31, 2007 $2,500,000
-------------------------------- --------------------------------------------
March 31, 2008 $472,500,000
-------------------------------- --------------------------------------------
June 30, 2008 $0.00
-------------------------------- --------------------------------------------
Tranche B Term Loan Maturity $472,500,000
Date
-------------------------------- --------------------------------------------
</Table>
(c) TRANCHE B TERM NOTES. Each Lender's Tranche B Term Loan Commitment
Percentage of the Tranche B Term Loan Committed Amount shall be evidenced by a
duly executed promissory note of the Borrower to such Lender in substantially
the form of SCHEDULE 2.5(c).
SECTION 2.6 FEES.
(a) COMMITMENT FEE. In consideration of the Commitments, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit
of the Lenders a commitment fee (the "COMMITMENT FEE") in an amount equal to
(1) with respect to the Tranche B Term Loan Committed Amount, one-half
percent (0.5%) per annum from the Closing Date until the Funding Date, and
(2) with respect to the Tranche A Term Loan Committed Amount and the
Revolving Committed Amount, from and after (A) the Closing Date until
October 31, 2001, one-eighth percent (.125%) per annum on the Tranche A Term
Loan Committed Amount and the Revolving Committed Amount and (B) November 1,
2001 until the Funding Date, one-quarter percent (.25%) per annum. After the
Funding Date the Borrower agrees to pay to the Administrative Agent for the
ratable benefit of the Lenders holding a Revolving Commitment, a Commitment
Fee equal to the Applicable Percentage per annum on the average daily unused
amount of the Revolving Committed Amount. For purposes of computing the
Commitment Fee hereunder, (i) LOC Obligations shall be considered usage
under the aggregate Revolving Committed Amount and (ii) Swingline Loans
shall not be considered usage under the aggregate Revolving Committed Amount
unless and until other Lenders having a Revolving Commitment purchase
Participation Interests in such Swingline Loans pursuant to Section
2.2(b)(ii). The Commitment Fee shall be payable quarterly in arrears on the
15th day following the last day of each calendar quarter for the prior
calendar quarter and upon termination of the Revolving Commitments and the
funding of the Term Loans.
(b) LETTER OF CREDIT FEES. In consideration of the LOC Commitments,
the Borrower agrees to pay to the Issuing Lender a fee (the "LETTER OF
CREDIT FEE") equal to
41
<Page>
the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under each Letter of Credit (as such amount may be
increased subject to the provisions of Section 2.10(b)) from the date of
issuance (or in the case of Letters of Credit outstanding on the Closing
Date, from the Closing Date) to the date of expiration. In addition to such
Letter of Credit Fee, the Issuing Lender may charge, and retain for its own
account without sharing by the other Lenders, an additional facing fee of
one-eighth of one percent (1/8%) per annum on the average daily maximum
amount available to be drawn under each such Letter of Credit issued by it.
The Issuing Lender shall promptly pay over to the Administrative Agent for
the ratable benefit of the Lenders (including the Issuing Lender) the Letter
of Credit Fee. The Letter of Credit Fee shall be payable quarterly in
arrears on the 15th day following the last day of each calendar quarter for
the prior calendar quarter.
(c) ISSUING LENDER FEES. In addition to the Letter of Credit Fees
payable pursuant to subsection (b) above, the Borrower shall pay to the
Issuing Lender for its own account without sharing by the other Lenders the
reasonable and customary charges from time to time of the Issuing Lender
with respect to the amendment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit (collectively, the
"ISSUING LENDER FEES").
(d) ADMINISTRATIVE FEE. The Borrower agrees to pay to the Agents the
annual administrative fee as described in the Fee Letter.
SECTION 2.7 REDUCTION OF THE REVOLVING COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. The Borrower shall have the right to
terminate or permanently reduce the unused portion of the Revolving
Committed Amount at any time or from time to time upon not less than one
Business Day prior notice to the Administrative Agent (which shall notify
the Lenders thereof as soon as practicable) of each such termination or
reduction, which notice shall specify the effective date thereof and the
amount of any such reduction which shall be in a minimum amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall be
irrevocable and effective upon receipt by the Administrative Agent; PROVIDED
that no such reduction or termination shall be permitted if after giving
effect thereto, and to any prepayments of the Revolving Loans made on the
effective date thereof, the sum of the then outstanding aggregate principal
amount of the Revolving Loans PLUS Swingline Loans PLUS LOC Obligations
would exceed the Revolving Committed Amount.
(b) MATURITY DATE. The Revolving Commitment, the LOC Commitment and the
Swingline Commitment shall automatically terminate on the Revolving
Commitment Termination Date.
SECTION 2.8 PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. The Borrower shall have the right to prepay
Loans in whole or in part from time to time; PROVIDED, HOWEVER, that (i)
each partial prepayment
42
<Page>
of Loans (other than Swingline Loans) shall be in a minimum principal amount
of $5,000,000 and integral multiples of $1,000,000 in excess thereof and
(ii) each prepayment of Swingline Loans shall be in a minimum principal
amount of $100,000 and integral multiples of $100,000 in excess thereof. The
Borrower shall give irrevocable written notice (or telephone notice promptly
confirmed in writing which confirmation may be by fax) of any such voluntary
prepayment to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) not later than 1:30 P.M. (Charlotte, North
Carolina time) on the Business Day prior to the date of the requested
prepayment in the case of Alternate Base Rate Loans, and on the third
Business Day prior to the date of the requested prepayment in the case of
LIBOR Rate Loans. Amounts prepaid under this Section 2.8(a) shall be applied
first pro rata to the Tranche A Term Loan (ratably to the remaining
principal installments thereof) and the Tranche B Term Loan (ratably to the
remaining principal installments thereof) (provided, however, promptly upon
notification thereof, one or more holders of the Tranche B Term Loan may
decline to accept such payment to the extent there are sufficient amounts
under the Tranche A Term Loan outstanding to be paid with such prepayment,
in which case, such declined payments shall be allocated pro rata among the
Tranche A Term Loan and the Tranche B Term Loan held by Lenders accepting
such payments) and then (after the Tranche A Term Loan and Tranche B Term
Loan have been paid in full) to the Revolving Loans. Subject to the
foregoing terms, amounts prepaid under this Section 2.8(a) shall be applied
first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct
order of Interest Period maturities. All prepayments under this Section
2.8(a) shall be subject to Section 2.18, but otherwise without premium or
penalty. Interest on the principal amount prepaid shall be payable on the
date of such prepayment. Amounts prepaid on the Swingline Loans and the
Revolving Loans may be reborrowed in accordance with the terms hereof.
Amounts prepaid on the Tranche A Term Loan and the Tranche B Term Loan may
not be reborrowed.
(b) MANDATORY PREPAYMENTS.
(i) REVOLVING COMMITTED AMOUNT. If at any time after the
Funding Date, the sum of the aggregate principal amount of
outstanding Revolving Loans PLUS Swingline Loans PLUS LOC
Obligations shall exceed the Revolving Committed Amount, the
Borrower immediately shall prepay the Revolving Loans and (after
all Revolving Loans have been repaid) cash collateralize the LOC
Obligations, in an amount sufficient to eliminate such excess (such
prepayment to be applied as set forth in clause (vi) below).
(ii) ASSET DISPOSITIONS. Promptly following any Asset
Disposition in excess of $20,000,000 in any fiscal year (provided,
however, that with respect to the first eighteen (18) month period
following the Funding Date, the full amount of any Asset
Disposition shall be subject to the prepayment requirements set
forth below), the Borrower shall prepay the Loans in an aggregate
amount equal to (A) during any fiscal quarter immediately following
a fiscal quarter in which the Borrower's Leverage Ratio is less
than 3.00 to 1.0, 75% of the Net Cash Proceeds derived from all
such Asset Dispositions, and (B) at any other time, 100% of the
43
<Page>
Net Cash Proceeds derived from all such Asset Dispositions (such
prepayment to be applied as set forth in clause (vi) below);
provided, however, that such Net Cash Proceeds shall not be
required to be so applied to the extent (1) the Borrower delivers
to the Administrative Agent a certificate stating that it intends
to use such Net Cash Proceeds to acquire fixed or capital assets in
replacement of the disposed assets, (2) such acquisition is
committed to within 180 days of receipt of the Net Cash Proceeds
and (3) such acquisition is consummated within 270 days of receipt
of such Net Cash Proceeds, it being expressly agreed that any Net
Cash Proceeds not so reinvested shall be applied to repay the Loans
immediately thereafter.
(iii) ISSUANCES. Immediately upon receipt by any Credit Party
of proceeds from (A) any Debt Issuance, the Borrower shall prepay
the Loans in an aggregate amount equal to seventy-five percent
(75%) of the Net Cash Proceeds of such Debt Issuance (such
prepayment to be applied as set forth in clause (vi) below) or (B)
any Equity Issuance in excess of $10,000,000 in any fiscal year,
the Borrower shall prepay the Loans in an aggregate amount equal to
fifty percent (50%) of the Net Cash Proceeds of such Equity
Issuance (such prepayment to be applied as set forth in clause (vi)
below); provided, however, with respect to both (A) and (B) above,
to the extent the Leverage Ratio was less than or equal to 3.0 to
1.0 as of the most recently ended fiscal quarter, no prepayments
shall be required hereunder.
(iv) RECOVERY EVENT. To the extent of cash proceeds received in
connection with a Recovery Event which are in excess of $10,000,000
in the aggregate and which are not applied to repair, replace or
relocate damaged property or to purchase or acquire fixed or
capital assets in replacement of the assets lost or destroyed
within 270 days (or 360 days, in the case of improvements to real
property) of the receipt of such cash proceeds, the Borrower shall
prepay the Loans in an aggregate amount equal to one hundred
percent (100%) of such cash proceeds (such prepayment to be applied
as set forth in clause (vi) below).
(v) EXCESS CASH FLOW. Within 90 days after the end of each
fiscal year (commencing with the fiscal year ending December 31,
2002), the Borrower shall prepay the Loans in an amount equal to
(x) if the Leverage Ratio of the Borrower at the end of such fiscal
year was greater than 3.0 to 1.0, fifty percent (50%) of the Excess
Cash Flow earned during such fiscal year and (y) if such Leverage
Ratio was less than or equal to 3.0 to 1.0, no prepayments shall be
required with respect to the Excess Cash Flow earned during such
fiscal year (such prepayments, if any, to be applied as set forth
in clause (vi) below).
(vi) APPLICATION OF MANDATORY PREPAYMENTS. All amounts required
to be paid pursuant to this Section 2.8(b) shall be applied as
follows: (A) with respect to all amounts prepaid pursuant to
Section 2.8(b)(i), to the Revolving Loans and then (after all
Revolving Loans have been repaid) to a cash collateral account in
respect of LOC Obligations, (B) with respect to all amounts prepaid
44
<Page>
pursuant to Sections 2.8(b)(ii) through (v), (1) first, pro rata to
the Tranche A Term Loan and the Tranche B Term Loan (ratably to the
remaining principal installments thereof); PROVIDED, HOWEVER,
promptly upon notification thereof, one or more holders of the
Tranche B Term Loan may decline to accept a mandatory prepayment to
the extent there are sufficient amounts under the Tranche A Term
Loan outstanding to be paid with such prepayment, in which case,
such declined payments shall be allocated pro rata among the
Tranche A Term Loan and the Tranche B Term Loan held by Lenders
accepting such prepayments, and (2) second, to the Revolving Loans
with a corresponding permanent pro rata reduction of the Revolving
Commitments and (after all Revolving Loans have been repaid) to a
cash collateral account in respect of LOC Obligations. Within the
parameters of the applications set forth above, prepayments shall
be applied first to Alternate Base Rate Loans and then to LIBOR
Rate Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.8(b) shall be subject to Section
2.18 and be accompanied by interest on the principal amount prepaid
through the date of prepayment.
SECTION 2.9 MINIMUM BORROWING AMOUNTS AND PRINCIPAL AMOUNTS OF TRANCHES.
(a) Each Alternate Base Rate Loan (other than Swingline Loans)
borrowing shall be in a minimum amount of $5,000,000 and whole multiples of
$1,000,000 in excess thereof.
(b) Each LIBOR Rate Loan borrowing shall be in a minimum amount of
$10,000,000 and whole multiples of $1,000,000 in excess thereof.
(c) All borrowings, payments and prepayments in respect of Revolving
Loans shall be in such amounts and be made pursuant to such elections so
that after giving effect thereto the aggregate principal amount of the
Revolving Loans comprising any Tranche shall either be zero or shall not be
less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof.
SECTION 2.10 INTEREST; INTEREST PAYMENT DATES.
(a) Subject to the provisions of Section 2.10(b), all Loans (other
than Swingline Loans) shall bear interest as follows:
(i) ALTERNATE BASE RATE LOANS. During such periods as Loans
shall be comprised of Alternate Base Rate Loans, each such
Alternate Base Rate Loan shall bear interest at a per annum rate
equal to the sum of the Alternate Base Rate PLUS the Applicable
Percentage; and
(ii) LIBOR RATE LOANS. During such periods as Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear
interest at a per annum rate equal to the sum of the applicable
LIBOR Rate PLUS the Applicable Percentage.
45
<Page>
(b) Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on
the Loans, and any other amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate 2%
greater than the applicable rate (including the Applicable Percentage) then
in effect or, if no rate is then in effect, at a per annum rate 2% greater
than the Alternate Base Rate plus the Applicable Percentage and the Letter
of Credit Fees shall be increased by 2% per annum.
(c) Interest on Loans shall be payable in arrears on each Interest
Payment Date, subject to Section 2.13; provided that (i) interest owing
under Section 2.10(b) shall be payable on demand, (ii) interest owing in
connection with any amounts repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) interest owing on LIBOR Loans
which are converted pursuant to Section 2.11, shall be payable on the date
of such conversion.
SECTION 2.11 CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert Alternate
Base Rate Loans to LIBOR Rate Loans by giving irrevocable written notice (or
telephone notice promptly confirmed in writing which confirmation may be by
fax) to the Administrative Agent not later than 1:30 P.M. (Charlotte, North
Carolina time) on the third Business Day prior to the date of the requested
conversion (a "NOTICE OF CONVERSION/EXTENSION"). A form of Notice of
Conversion/Extension is attached as SCHEDULE 2.11. If the date upon which an
Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a
Business Day, then such conversion shall be made on the next succeeding
Business Day and during the period from such last day of an Interest Period
to such succeeding Business Day such Loan shall bear interest as if it were
an Alternate Base Rate Loan. All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein, PROVIDED that (i) no Loan
may be converted into a LIBOR Rate Loan when any Default or Event of Default
has occurred and is continuing and (ii) partial conversions shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the expiration
of an Interest Period with respect thereto by compliance by the Borrower
with the notice provisions contained in Section 2.11(a); PROVIDED, that no
LIBOR Rate Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, in which case such Loan shall be
automatically converted to an Alternate Base Rate Loan at the end of the
applicable Interest Period with respect thereto. If the Borrower shall fail
to give timely notice of an election to continue a LIBOR Rate Loan, or the
continuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate
Loans shall be automatically converted to Alternate Base Rate Loans at the
end of the applicable Interest Period with respect thereto.
46
<Page>
SECTION 2.12 COMPUTATION OF INTEREST AND FEES.
(a) Interest payable hereunder with respect to Alternate Base Rate
Loans based on the Prime Rate shall be calculated on the basis of a year of
365 days (or 366 days, as applicable) for the actual days elapsed. All other
fees, interest and all other amounts payable hereunder shall be calculated
on the basis of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of each determination of a LIBOR Rate on the Business Day of the
determination thereof. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base
Rate shall become effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and
the amount of each such change.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
The Administrative Agent shall, at the request of the Borrower, deliver to
the Borrower a statement showing the computations used by the Administrative
Agent in determining any interest rate.
(c) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law from
time to time in effect. All agreements between the Lenders and the Credit
Parties are hereby limited by the provisions of this paragraph which shall
override and control all such agreements, whether now existing or hereafter
arising and whether written or oral. In no way, nor in any event or
contingency (including but not limited to prepayment or acceleration of the
maturity of any obligation), shall the interest taken, reserved, contracted
for, charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such interest shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum nonusurious amount,
an amount equal to the amount which would have been excessive interest
shall, without penalty, be applied to the reduction of the principal amount
owing on the Loans and not to the payment of interest, or refunded to the
Borrower or the other payor thereof if and to the extent such amount which
would have been excessive exceeds such unpaid principal amount of the Loans.
The right to demand payment of the Loans or any other Indebtedness evidenced
by any of the Credit Documents does not include the right to receive any
interest which has not otherwise accrued on the date of such demand, and the
Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable law,
47
<Page>
be amortized, prorated, allocated, and spread throughout the full stated
term (including any renewal or extension) of the Loans so that the amount of
interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
SECTION 2.13 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made PRO RATA according to the respective Commitment
Percentages of the Lenders. Each payment under this Agreement or any Note shall
be applied, first, to any fees then due and owing by the Borrower pursuant to
Section 2.6, second, to interest then due and owing in respect of the Notes of
the Borrower and, third, to principal then due and owing hereunder and under the
Notes of the Borrower. Each payment on account of any fees pursuant to Section
2.6 shall be made PRO RATA in accordance with the respective amounts due and
owing (except as to the portion of the Letter of Credit retained by the Issuing
Lender, the Issuing Lender Fees and fees payable to the Agents). Each payment
(other than prepayments) by the Borrower on account of principal of and interest
on the Revolving Loans, the Tranche A Term Loan and/or the Tranche B Term Loan
shall be made PRO RATA according to the respective amounts due and owing first
to Alternate Base Rate Loans and then to LIBOR Rate Loans in the direct order of
Interest Period maturities. Each optional prepayment on account of principal of
the Loans shall be applied as set forth in Section 2.8(a); PROVIDED, that
prepayments made pursuant to Section 2.16 shall be applied in accordance with
such section. Each mandatory prepayment on account of principal of the Loans
shall be applied in accordance with Section 2.8(b). All payments (including
prepayments) to be made by the Borrower on account of principal, interest and
fees shall be made without defense, set-off or counterclaim (except as provided
in Section 2.19(b)) and shall be made to the Administrative Agent for the
account of the Lenders at the Administrative Agent's office specified on
SCHEDULE 9.2 in Dollars and in immediately available funds not later than 2:00
P.M. (Charlotte, North Carolina time) on the date when due. The Administrative
Agent shall distribute such payments to the Lenders entitled thereto promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the LIBOR Rate Loans) 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. If any payment on a
LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT. Notwithstanding any other
provisions of this Credit Agreement to the contrary, after the occurrence and
during the continuance of an Event of Default, all amounts collected or received
by the Administrative Agent or any Lender on account of the Credit Party
Obligations or any other amounts outstanding under any of the Credit Documents
or in respect of the Collateral shall be paid over or delivered as follows:
48
<Page>
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent in connection with enforcing the rights of the Lenders
under the Credit Documents and any protective advances made by the
Administrative Agent with respect to the Collateral under or pursuant to the
terms of the Security Documents;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of each
of the Lenders in connection with enforcing its rights under the Credit
Documents or otherwise with respect to the Credit Party Obligations owing to
such Lender;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the Credit
Party Obligations (including the payment or cash collateralization of the
outstanding LOC Obligations);
SIXTH, to all other Credit Party Obligations and other obligations
which shall have become due and payable under the Credit Documents or
otherwise and not repaid pursuant to clauses "FIRST" through "FIFTH" above;
and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Loans and LOC Obligations held by such Lender bears to the aggregate then
outstanding Loans and LOC Obligations) of amounts available to be applied
pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH" above; and (iii)
to the extent that any amounts available for distribution pursuant to clause
"FIFTH" above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (A) first, to
reimburse the Issuing Lender from time to time for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses "FIFTH"
and "SIXTH" above in the manner provided in this Section 2.13(b).
SECTION 2.14 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
(a) Unless the Administrative Agent shall have been notified in
writing by a Lender prior to the date a Loan is to be made by such Lender
(which notice shall be effective upon receipt) that such Lender does not
intend to make the proceeds of such
49
<Page>
Loan available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in
reliance upon such assumption (but shall not be required to) make available
to the Borrower a corresponding amount. If such corresponding amount is not
in fact made available to the Administrative Agent, the Administrative Agent
shall be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover from the Lender or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount
is recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal
Funds Effective Rate.
(b) Unless the Administrative Agent shall have been notified in
writing by the Borrower, prior to the date on which any payment is due from
it hereunder (which notice shall be effective upon receipt) that the
Borrower does not intend to make such payment, the Administrative Agent may
assume that the Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to each Lender on such payment date an amount
equal to the portion of such assumed payment to which such Lender is
entitled hereunder, and if the Borrower has not in fact made such payment to
the Administrative Agent, such Lender shall, on demand, repay to the
Administrative Agent the amount made available to such Lender. If such
amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each
day from the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is recovered by the Administrative
Agent at a per annum rate equal to the Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent submitted to the Borrower
or any Lender with respect to any amount owing under this Section 2.14 shall
be conclusive in the absence of manifest error.
SECTION 2.15 INABILITY TO DETERMINE INTEREST RATE.
Notwithstanding any other provision of this Agreement, if (i) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining LIBOR for an Interest Period, or (ii) the Required Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the
cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested
be outstanding as a LIBOR Tranche
50
<Page>
during an Interest Period, the Administrative Agent shall forthwith give
telephone notice of such determination, confirmed in writing, to the Borrower,
and the Lenders at least two Business Days prior to the first day of such
Interest Period. Unless the Borrower shall have notified the Administrative
Agent upon receipt of such telephone notice that it wishes to rescind or modify
its request regarding such LIBOR Rate Loans, any Loans that were requested to be
made as LIBOR Rate Loans shall be made as Alternate Base Rate Loans and any
Loans that were requested to be converted into or continued as LIBOR Rate Loans
shall be converted into Alternate Base Rate Loans. Until any such notice has
been withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
SECTION 2.16 ILLEGALITY.
Notwithstanding any other provision of this Agreement, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof by the relevant Governmental Authority to any Lender shall make it
unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR
Rate Loans as contemplated by this Agreement or to obtain in the interbank
eurodollar market through its LIBOR Lending Office the funds with which to make
such Loans, (a) such Lender shall promptly notify the Administrative Agent and
the Borrower thereof, (b) the commitment of such Lender hereunder to make LIBOR
Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended
until the Administrative Agent shall give notice that the condition or situation
which gave rise to the suspension shall no longer exist, and (c) such Lender's
Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the
last day of the Interest Period for such Loans or within such earlier period as
required by law as Alternate Base Rate Loans. The Borrower hereby agrees
promptly to pay any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for actual and direct costs (but not including
anticipated profits) reasonably incurred by such Lender in making any repayment
in accordance with this Section including, but not limited to, any interest or
fees payable by such Lender to lenders of funds obtained by it in order to make
or maintain its LIBOR Rate Loans hereunder. A certificate as to any additional
amounts payable pursuant to this Section submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its LIBOR Lending Office) to avoid or to minimize
any amounts which may otherwise be payable pursuant to this Section; PROVIDED,
HOWEVER, that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such Lender in its
sole discretion to be material.
SECTION 2.17 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date
hereof:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to any Letter of Credit or any application relating
thereto, any LIBOR
51
<Page>
Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit or
to reduce any amount receivable hereunder or under any Note and such
Lender's costs have increased with respect to other customers under similar
circumstances, then, in any such case, the Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable which such
Lender reasonably deems to be material as determined by such Lender with
respect to its LIBOR Rate Loans or Letters of Credit. A certificate as to
any additional amounts payable pursuant to this Section submitted by such
Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its Domestic
Lending Office or LIBOR Lending Office, as the case may be) to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
paragraph of this Section; PROVIDED, HOWEVER, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender to be material.
(b) If any Lender shall have reasonably determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in
the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
central bank or Governmental Authority made subsequent to the date hereof
does or shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount reasonably deemed by such Lender to be
material, and such Lender has experienced such effect with respect to other
customers under similar circumstances, then from time to time, within
fifteen (15) days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount as shall be certified by such Lender as
being required to compensate it for such reduction. Such a certificate as to
any additional amounts payable under this Section submitted by a Lender
(which certificate shall include a description of the basis
52
<Page>
for the computation), through the Administrative Agent, to the Borrower
shall be conclusive absent manifest error.
(c) The agreements in this Section 2.17 shall survive the
termination of this Agreement and payment of the Notes and all other amounts
payable hereunder.
SECTION 2.18 INDEMNITY.
The Borrower hereby agrees to indemnify each Lender and to hold such Lender
harmless from any funding loss or expense which such Lender may sustain or incur
as a consequence of (a) default by the Borrower in payment of the principal
amount of or interest on any Loan by such Lender in accordance with the terms
hereof, (b) default by the Borrower in accepting a borrowing after the Borrower
has given a notice in accordance with the terms hereof, (c) default by the
Borrower in making any prepayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
prepayment of a Loan, or the conversion thereof, on a day which is not the last
day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain its Loans
hereunder. A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender, through the Administrative Agent, to the
Borrower (which certificate must be delivered to the Administrative Agent within
thirty days following such default, prepayment or conversion) shall be
conclusive in the absence of manifest error. The agreements in this Section
shall survive termination of this Agreement and payment of the Notes and all
other amounts payable hereunder.
SECTION 2.19 TAXES.
(a) All payments made by the Borrower hereunder or under any Note
will be, except as provided in Section 2.19(b), made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any Governmental Authority or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding any tax imposed on or measured by the net income or
profits of a Lender) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "TAXES"). If
any Taxes are so levied or imposed, the Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any
Note, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein or in such Note. The
Borrower will furnish to the Administrative Agent as soon as practicable
after the date the payment of any Taxes is due pursuant to applicable law
certified copies (to the extent reasonably available and required by law) of
tax receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed and
53
<Page>
paid by such Lender but excluding any interest or penalties caused by
such Lender's failure to pay any such taxes when due.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Closing Date, or in
the case of a Lender that is an assignee or transferee of an interest under
this Agreement pursuant to Section 9.6(d) (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or
transfer), on the date of such assignment or transfer to such Lender, (i) if
the Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or successor forms) certifying such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or
(ii) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, either Internal Revenue Service Form W-8BEN or
W-8ECI as set forth in clause (i) above, or (x) a certificate substantially
in the form of SCHEDULE 2.19 (any such certificate, a "2.19 CERTIFICATE")
and (y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying such Lender's entitlement to
an exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition,
each Lender agrees that it will deliver upon the Borrower's request updated
versions of the foregoing, as applicable, whenever the previous
certification has become obsolete or inaccurate in any material respect,
together with such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under
this Agreement and any Note. Notwithstanding anything to the contrary
contained in Section 2.19(a), but subject to the immediately succeeding
sentence, (x) each Borrower shall be entitled, to the extent it is required
to do so by law, to deduct or withhold Taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the
extent that such Lender has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 2.19(a) hereof to gross-up payments to be made to a
Lender in respect of Taxes imposed by the United States if (I) such Lender
has not provided to the Borrower the Internal Revenue Service Forms required
to be provided to the Borrower pursuant to this Section 2.19(b) or (II) in
the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such Taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section
2.19, the Borrower agrees to pay additional amounts and to indemnify each
Lender in the manner set forth in Section 2.19(a) (without regard to the
identity of the jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the Closing
Date in any
54
<Page>
applicable law, treaty, governmental rule, regulation, guideline
or order, or in the interpretation thereof, relating to the deducting or
withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR Lending
Office, as the case may be) to avoid or to minimize any amounts which might
otherwise be payable pursuant to this Section; PROVIDED, HOWEVER, that such
efforts shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender in its sole
discretion to be material.
(d) If the Borrower pays any additional amount pursuant to this
Section 2.19 with respect to a Lender, such Lender shall use reasonable
efforts to obtain a refund of tax or credit against its tax liabilities on
account of such payment; PROVIDED that such Lender shall have no obligation
to use such reasonable efforts if either (i) it is in an excess foreign tax
credit position or (ii) it believes in good faith, in its sole discretion,
that claiming a refund or credit would cause adverse tax consequences to it.
In the event that such Lender receives such a refund or credit, such Lender
shall pay to the Borrower an amount that such Lender reasonably determines
is equal to the net tax benefit obtained by such Lender as a result of such
payment by the Borrower. In the event that no refund or credit is obtained
with respect to the Borrower's payments to such Lender pursuant to this
Section 2.19(d), then such Lender shall upon request provide a certification
that such Lender has not received a refund or credit for such payments.
Nothing contained in this Section 2.19(d) shall require a Lender to disclose
or detail the basis of its calculation of the amount of any tax benefit or
any other amount or the basis of its determination referred to in the
proviso to the first sentence of this Section 2.19(d) to the Borrower or any
other party.
(e) The agreements in this Section 2.19 shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
SECTION 2.20 INDEMNIFICATION; NATURE OF ISSUING LENDER'S DUTIES.
(a) In addition to its other obligations under Section 2.3, the
Borrower hereby agrees to protect, indemnify, pay and save the Issuing
Lender harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit
or (ii) the failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or governmental
authority (all such acts or omissions, herein called "GOVERNMENT ACTS").
(b) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuing Lender shall not be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by
55
<Page>
any party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may prove
to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of a Letter of Credit to comply fully with conditions required
in order to draw upon a Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds thereof;
and (vii) for any consequences arising from causes beyond the control of the
Issuing Lender, including, without limitation, any Government Acts. None of
the above shall affect, impair, or prevent the vesting of the Issuing
Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Issuing Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put such
Issuing Lender under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and applied
to protect and indemnify the Issuing Lender against any and all risks
involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Borrower, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any
Governmental Authority. The Issuing Lender shall not, in any way, be liable
for any failure by the Issuing Lender or anyone else to pay any drawing
under any Letter of Credit as a result of any Government Acts or any other
cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 2.20 is intended to limit the
reimbursement obligation of the Borrower contained in Section 2.3(d) hereof.
The obligations of the Borrower under this Section 2.20 shall survive the
termination of this Agreement. No act or omissions of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the
rights of the Issuing Lender to enforce any right, power or benefit under
this Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 2.20, the Borrower shall have no obligation to indemnify any Issuing
Lender in respect of any liability incurred by such Issuing Lender arising
out of the gross negligence or willful misconduct of the Issuing Lender
(including action not taken by an Issuing Lender), as determined by a court
of competent jurisdiction.
SECTION 2.21 DEFAULTING LENDERS; LIMITATION ON CLAIMS.
(a) GENERALLY. In addition to the rights and remedies that may be
available to the Administrative Agent or the Borrower under this Agreement
or applicable law, if at
56
<Page>
any time a Lender is a Defaulting Lender such Defaulting Lender's right
to participate in the administration of the Loans, this Agreement and the
other Credit Documents (excluding for purposes hereof, those matters
requiring the unanimous consent or approval of the Lenders, or requiring the
approval of each Lender directly affected thereby, pursuant to Section
9.1(i) through 9.1(vii) hereof or Section 9.6(a)), including without
limitation, any right to vote in respect of, to consent to or to direct any
action or inaction of the Administrative Agent or to be taken into account
in the calculation of the Required Lenders, shall be suspended during the
pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to the Administrative Agent of
any amount required to be paid to the Administrative Agent hereunder
(without giving effect to any notice or cure periods), in addition to other
rights and remedies which the Administrative Agent or the Borrower may have
under the immediately preceding provisions or otherwise, the Administrative
Agent shall be entitled (i) to collect interest from such Defaulting Lender
on such delinquent payment for the period from the date on which the payment
was due until the date on which the payment is made at the Federal Funds
Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of
the defaulted payment and any related interest, any amounts otherwise
payable to such Defaulting Lender under this Agreement or any other Credit
Document until such defaulted payment and related interest has been paid in
full and such default no longer exists and (iii) to bring an action or suit
against such Defaulting Lender in a court of competent jurisdiction to
recover the defaulted amount and any related interest. Any amounts received
by the Administrative Agent in respect of a Defaulting Lender's Loans shall
not be paid to such Defaulting Lender and shall be held uninvested by the
Administrative Agent and either applied against the purchase price of such
Loans under the following subsection (b) or paid to such Defaulting Lender
upon the default of such Defaulting Lender being cured.
(b) PURCHASE OF DEFAULTING LENDER'S COMMITMENT. Any Lender who is
not a Defaulting Lender shall have the right, but not the obligation, in its
sole discretion, to acquire all of a Defaulting Lender's Commitment. If more
than one Lender exercises such right, each such Lender shall have the right
to acquire such proportion of such Defaulting Lender's Commitment on a PRO
RATA basis. Upon any such purchase, the Defaulting Lender's interest in the
Loans and its rights hereunder (but not its liability in respect thereof or
under the Credit Documents or this Agreement to the extent the same relate
to the period prior to the effective date of the purchase) shall terminate
on the date of purchase, and the Defaulting Lender shall promptly execute
all documents reasonably requested to surrender and transfer such interest
to the purchaser thereof subject to and in accordance with the requirements
set forth in Section 9.6, including an appropriate Commitment Transfer
Supplement. The purchase price for the Commitment of a Defaulting Lender
shall be equal to the sum of the amount of the principal balance of the
Loans outstanding and owed by the Borrower to the Defaulting Lender, plus
any accrued interest with respect thereto, plus any fees or other amounts
owed by the Borrower to the Defaulting Lender. Prior to payment of such
purchase price to a Defaulting Lender, the Administrative Agent shall apply
against such purchase price any amounts retained by the Administrative Agent
pursuant to the last sentence of the immediately preceding subsection (a).
The Defaulting Lender shall be entitled to receive amounts owed to it by
57
<Page>
the Borrower on account of principal of and interest on the Loans and
the Notes, and fees and other amounts due under the Credit Documents which
accrued prior to the date of the default by the Defaulting Lender, to the
extent the same are received by the Administrative Agent from or on behalf
of the Borrower. There shall be no recourse against any Lender or the
Administrative Agent for the payment of such sums by the Borrower except to
the extent of the receipt of payments from any other party or in respect of
the Loans.
SECTION 2.22 REPLACEMENT OF LENDERS.
If any Lender shall become affected by any of the changes or events
described in Sections 2.15, 2.16, 2.17 or 2.19 (any such Lender being
hereinafter referred to as a "REPLACED LENDER") and shall petition the Borrower
for any increased cost or amounts thereunder, then in such case, the Borrower
may, upon at least five (5) Business Days' notice to the Administrative Agent
and such Replaced Lender, designate a replacement lender (a "REPLACEMENT
LENDER") acceptable to the Administrative Agent in its reasonable discretion, to
which such Replaced Lender shall, subject to its receipt (unless a later date
for the remittance thereof shall be agreed upon by the Borrower and the Replaced
Lender) of all amounts owed to such Replaced Lender under Sections 2.15, 2.16,
2.17 or 2.19 assign all (but not less than all) of its rights, obligations,
Loans and Commitments hereunder; PROVIDED, that all amounts owed to such
Replaced Lender by the Borrower (except liabilities which by the terms hereof
survive the payment in full of the Loans and termination of this Agreement)
shall be paid in full as of the date of such assignment. Upon any assignment by
any Lender pursuant to this Section 2.22 becoming effective, the Replacement
Lender shall thereupon be deemed to be a "Lender" for all purposes of this
Agreement and such Replaced Lender shall thereupon cease to be a "Lender" for
all purposes of this Agreement and shall have no further rights or obligations
hereunder (other than pursuant to Sections 2.15, 2.16, 2.17 or 2.19 and 9.5
while such Replaced Lender was a Lender).
Notwithstanding any Replaced Lender's failure or refusal to assign its rights,
obligations, Loans and Commitments under this Section 2.22, the Replaced Lender
shall cease to be a "Lender" for all purposes of this Agreement and the
Replacement Lender substituted therefor upon payment to the Replaced Lender by
the Replacement Lender of all amounts set forth in this Section 2.22 without any
further action of the Replaced Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, the Credit Parties hereby represent
and warrant to the Administrative Agent and to each Lender that as of the
Funding Date and thereafter for so long as this Agreement is in effect and until
the Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations, together with interest, Commitment Fees and all other
amounts owing to the Administrative Agent or any Lender hereunder are paid in
full:
58
<Page>
SECTION 3.1 FINANCIAL CONDITION.
The consolidated balance sheets and the related statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries (excluding
the Acquired Company and its Subsidiaries) for the fiscal year ending December
31, 2000 and for the most recently ended fiscal quarter ending more than sixty
(60) days prior to the Funding Date, and for the Acquired Company and its
Subsidiaries for the fiscal year ending May 25, 2001 and for the most recently
ended fiscal quarter ending more than sixty (60) days prior to the Funding Date,
are complete and correct and present fairly, in all material respects, the
financial condition of, and the results of operations for, such Persons as of
such dates. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein). The Borrower and
its Restricted Subsidiaries, taken as a whole, have on the date hereof no
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the annual
financial information provided as of the immediately preceding fiscal year end
referred to above and as set forth on SCHEDULE 3.1 or as set forth on SCHEDULE
6.1(b).
SECTION 3.2 NO CHANGE.
Since December 31, 2000 (and after delivery of annual audited financial
statements in accordance with Section 5.1(a), from the date of the most recently
delivered annual audited financial statements) there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
SECTION 3.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the requisite power and authority and the legal right to
own and operate all its material property, to lease the material property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified to conduct business and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that
the failure to so qualify or be in good standing could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and except for those
Subsidiaries required to be so qualified and in good standing pursuant to the
terms of Section 5.15 following their reorganization or restructure on or about
the Funding Date and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 3.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Borrower and the other Credit Parties has full power and
authority and the legal right to make, deliver and perform the Credit Documents
to which it is party and has taken all necessary limited liability company or
corporate action to authorize the execution, delivery and performance by it of
the Credit Documents to which it is party. No consent or authorization
59
<Page>
of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery or performance of any
Credit Document by the Borrower and the other Credit Parties (other than those
which have been obtained) or with the validity or enforceability of any Credit
Document against the Borrower and the other Credit Parties (except such filings
as are necessary in connection with the perfection of the Liens created by such
Credit Documents). Each Credit Document to which it is a party has been duly
executed and delivered on behalf of each of the Borrower and the other Credit
Parties, as the case may be. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of each of the Borrower and
the other Credit Parties, as the case may be, enforceable against each of the
Borrower and Credit Parties, as the case may be, in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
SECTION 3.5 NO LEGAL BAR; NO DEFAULT.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or its
Subsidiaries (except those as to which waivers or consents have been obtained),
and will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. Neither the Borrower
nor any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
SECTION 3.6 NO MATERIAL LITIGATION.
Except as set forth in SCHEDULE 3.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Borrower, threatened by or against the Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Documents or any Loan or any of the
transactions contemplated hereby, or (b) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.7 GOVERNMENT ACTS.
(a) Neither the Borrower nor any Credit Party is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
(b) Neither the Borrower nor any of its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary company"
of a "holding
60
<Page>
company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
SECTION 3.8 MARGIN REGULATIONS.
No part of the proceeds of any Loan hereunder will be used directly or
indirectly for any purpose which violates, or which would be inconsistent with,
the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. The aggregate
value of all "margin stock" owned by the Borrower and its Subsidiaries taken as
a group does not exceed 25% of the value of their assets.
SECTION 3.9 ERISA.
Except as could not reasonably be expected to have a Material Adverse
Effect,
(a) neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which
this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code;
(b) no termination of a Single Employer Plan has occurred resulting
in any liability that has remained underfunded, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period;
(c) the present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not,
as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits; and
(d) neither the Borrower, nor any of its Subsidiaries, nor any
Commonly Controlled Entity is currently subject to any liability for a
complete or partial withdrawal from a Multiemployer Plan.
SECTION 3.10 ENVIRONMENTAL MATTERS.
Except as to matters with respect to which the Borrower and its
Subsidiaries could not reasonably be expected to incur liabilities in excess of
$50,000,000 in the aggregate:
(a) the facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "REAL PROPERTIES") do not contain
any Hazardous Materials in amounts or concentrations which (i) constitute a
violation of, or (ii) could give rise to liability under, any Environmental
Law;
(b) the Real Properties and all operations of the Borrower and/or its
Subsidiaries at the Real Properties are in compliance, and have in the last
five years been
61
<Page>
in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Real Properties or violation of any Environmental Law with respect to the
Real Properties or the business operated by the Borrower or any of its
Subsidiaries (the "BUSINESS");
(c) neither the Borrower nor any of its Subsidiaries has received any
written or actual notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Real Properties
or the Business, nor does the Borrower or any of its Subsidiaries have
knowledge or reason to believe that any such notice will be received or is
being threatened;
(d) Hazardous Materials have not been transported or disposed of from
the Real Properties in violation of, or in a manner or to a location which
could give rise to liability under any Environmental Law, nor have any
Hazardous Materials been generated, treated, stored or disposed of at, on or
under any of the Real Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law;
(e) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Real Properties or the Business, nor
are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Real Properties or the Business; and
(f) there has been no release or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or related to the
operations of the Borrower or any Subsidiary in connection with the Real
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
SECTION 3.11 PURPOSE OF LOANS.
The proceeds of the Loans hereunder shall be used solely by the Borrower to
(i) consummate the Acquisition and to pay fees and expenses related thereto, and
to pay accrued quarterly dividends to shareholders of the Acquired Company, (ii)
acquire all partnership and other ownership interests currently held by Dairy
Farmers of America, Inc. in Suiza Dairy Group, L.P., a Delaware limited
partnership, (iii) refinance existing Indebtedness of Borrower, its Restricted
Subsidiaries and the Acquired Company and (iv) provide for working capital,
Permitted Acquisitions and other general corporate purposes (including the TIPES
and Capital Stock repurchase programs). The Letters of Credit shall be used for
general corporate purposes.
62
<Page>
SECTION 3.12 SUBSIDIARIES.
Set forth on SCHEDULE 3.12 is a complete and accurate list of all
Subsidiaries of the Borrower. Information on the attached Schedule includes
jurisdiction of incorporation; the number of shares of each class of Capital
Stock or other equity interests outstanding; the number and percentage of
outstanding shares of each class of stock owned by Borrower or its Subsidiaries;
and the number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and similar rights. The outstanding Capital
Stock and other equity interests of all such Subsidiaries is validly issued,
fully paid and non-assessable and is owned, free and clear of all Liens (other
than those arising under or contemplated in connection with the Credit
Documents). As of the Funding Date, there are no Unrestricted Subsidiaries other
than the Unrestricted Subsidiaries specifically listed in the definition
thereof. SCHEDULE 3.12 shall be updated quarterly by the Borrower with the
delivery of the financial information required pursuant to Section 5.1(b) by
giving written notice thereof to the Administrative Agent.
SECTION 3.13 OWNERSHIP.
Each of the Borrower and its Restricted Subsidiaries (a) is the owner of,
and has good and marketable title to, all of its respective assets, except as
may be permitted pursuant to Section 6.12 hereof, and none of such assets is
subject to any Lien other than Permitted Liens and (b) enjoys peaceful and
undisturbed possession of all Real Properties that are necessary for the
operation and conduct of its business.
SECTION 3.14 INDEBTEDNESS.
Except as otherwise permitted under Section 6.1, the Borrower and its
Restricted Subsidiaries have no Indebtedness.
SECTION 3.15 TAXES.
Each of the Borrower and its Subsidiaries has filed, or caused to be filed,
all tax returns (federal, state, local and foreign) required to be filed other
than returns for which failure to file would not have a Material Adverse Effect
and paid (a) all amounts of taxes shown thereon to be due (including interest
and penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP or (iii) for which nonpayment would not have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries is aware as of
the Closing Date of any proposed tax assessments against it or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
SECTION 3.16 INTELLECTUAL PROPERTY.
Each of the Borrower and its Restricted Subsidiaries owns, or has the legal
right to use, all trademarks, tradenames, patents, copyrights, technology,
know-how and processes
63
<Page>
(collectively, the "INTELLECTUAL PROPERTY") necessary for each of them to
conduct its business as currently conducted. Set forth on SCHEDULE 3.16 is a
list of all Intellectual Property owned by the Borrower and its Restricted
Subsidiaries or that the Borrower and its Restricted Subsidiaries has the right
to use. Except as provided on SCHEDULE 3.16, no claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower or any of its Restricted Subsidiaries know of
any such claim, and, to the knowledge of the Borrower or any of its Restricted
Subsidiaries, the use of such Intellectual Property by the Borrower or any of
its Restricted Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. SCHEDULE 3.16 shall be
updated (by additions and deletions of such claims) by the Borrower quarterly
with the delivery of the financial information required pursuant to Section
5.1(b) by giving written notice thereof to the Administrative Agent.
SECTION 3.17 SOLVENCY.
The fair saleable value of all Credit Parties' assets, measured on a going
concern basis, exceeds all probable liabilities, including those to be incurred
pursuant to this Credit Agreement. The Credit Parties on a consolidated basis,
will not (a) have unreasonably small capital in relation to the business in
which they are engaged or (b) have incurred, or believe that they will have
incurred after giving effect to the transactions contemplated by this Credit
Agreement, Indebtedness beyond their ability to pay such Indebtedness as it
becomes due.
SECTION 3.18 INVESTMENTS.
All Investments of each of the Borrower and its Restricted Subsidiaries are
Permitted Investments.
SECTION 3.19 LOCATION OF COLLATERAL.
Set forth on SCHEDULE 3.19(a) is a list of the owned real property of the
Borrower and its Restricted Subsidiaries with street address, county and state
where located. Set forth on SCHEDULE 3.19(b) is a list of all locations where
any material tangible personal property of the Borrower and its Restricted
Subsidiaries is located, including county and state where located. Set forth on
SCHEDULE 3.19(c) is the chief executive office and principal place of business
of each of the Borrower and its Restricted Subsidiaries. SCHEDULE 3.19(a),
3.19(b) and 3.19(c) shall be updated by the Borrower, quarterly with the
delivery of the financial information required pursuant to Section 5.1(b) by
giving written notice thereof to the Administrative Agent.
SECTION 3.20 NO BURDENSOME RESTRICTIONS.
None of the Borrower or any of its Restricted Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
64
<Page>
SECTION 3.21 BROKERS' FEES.
None of the Borrower or any of its Subsidiaries has any obligation to any
Person in respect of any finder's, broker's, investment banking or other similar
fee in connection with the Extensions of Credit contemplated under the Credit
Documents other than the closing and other fees payable pursuant to this Credit
Agreement and the Fee Letter.
SECTION 3.22 LABOR MATTERS.
None of the Borrower or any of its Restricted Subsidiaries (i) is currently
suffering any strikes, walkouts, work stoppages or other material labor
difficulty, other than as set forth in SCHEDULE 3.22 hereto or (ii) has
knowledge of any potential or pending strike, walkout or work stoppage, other
than as set forth in SCHEDULE 3.22 hereto.
SECTION 3.23 SECURITY DOCUMENTS.
The Security Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby, which security interests and Liens
are currently (or will be, upon the filing of appropriate financing statements
and the recordation of the applicable Mortgage Instruments in each case in favor
of First Union, as Administrative Agent for the Lenders) perfected security
interests and Liens, prior to all other Liens other than Permitted Liens to the
extent required by the Security Documents.
SECTION 3.24 CONSUMMATION OF ACQUISITION.
The Acquisition and related transactions have been consummated
substantially in accordance with the terms of the Acquisition Documents. As of
the Closing Date and as of the Funding Date, the Acquisition Documents have not
been altered, amended or otherwise modified or supplemented or any condition
thereof waived in any material respect without the prior written consent of the
Administrative Agent. Each of the representations and warranties made in the
Acquisition Documents by each of the Credit Parties (other than the Acquired
Company and its Subsidiaries) is true and correct except for any representation
or warranty therein the failure of which to be true and correct does not have or
could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.25 MATERIAL CONTRACTS.
SCHEDULE 3.25 sets forth a true and correct and complete list of all
Material Contracts currently in effect. All of the Material Contracts are in
full force and effect and no material defaults currently exist thereunder.
SCHEDULE 3.25 shall be updated by the Borrower quarterly with the delivery of
the financial information required pursuant to Section 5.1(b) by giving written
notice thereof to the Administrative Agent.
65
<Page>
SECTION 3.26 ACCURACY AND COMPLETENESS OF INFORMATION.
All factual information heretofore, contemporaneously or hereafter furnished
by or on behalf of the Borrower or any of its Subsidiaries to the Administrative
Agent or any Lender for purposes of or in connection with this Agreement or any
other Credit Document, or any transaction contemplated hereby or thereby, is or
will be true and accurate in all material respects and not incomplete by
omitting to state any material fact necessary to make such information not
misleading. There is no fact now known to the Borrower or any of its
Subsidiaries which has, or could reasonably be expected to have, a Material
Adverse Effect which fact has not been set forth herein, in the financial
statements of the Borrower and its Subsidiaries furnished to the Administrative
Agent and/or the Lenders, or in any certificate, opinion or other written
statement made or furnished by the Borrower to the Administrative Agent and/or
the Lenders.
SECTION 3.27 INTEREST RATE PROTECTION.
The Borrower has, as of the Funding Date, Hedging Agreements in place
protecting against fluctuations in interest rates which provide for coverage of
not less than $500,000,000 for a period of not less than two (2) years.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 CONDITIONS TO CLOSING DATE.
This Agreement shall become effective upon the satisfaction of the
following conditions precedent:
(a) EXECUTION OF AGREEMENT. The Administrative Agent shall have
received (i) counterparts of this Agreement, executed by a duly authorized
officer of each party hereto and (ii) for the account of each Lender, a
Revolving Note, a Tranche A Term Note and a Tranche B Term Note and for the
account of the Swingline Lender, a Swingline Note.
(b) AUTHORITY DOCUMENTS. The Administrative Agent shall have
received a secretary's certificate substantially in the form of SCHEDULE
4.1(b) with respect to the following:
(i) CHARTER DOCUMENTS. Copies of the certificate of
incorporation of the Borrower certified to be true and complete as
of a recent date by the appropriate Governmental Authority of the
state of its incorporation.
(ii) RESOLUTIONS. Copies of resolutions of the board of
directors of the Borrower approving and adopting the Credit
Documents, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by
66
<Page>
an officer of Borrower as of the Closing Date to be true and
correct and in force and effect as of such date.
(iii) BYLAWS. A copy of the bylaws of the Borrower certified by
an officer of the Borrower as of the Closing Date to be true and
correct and in force and effect as of such date.
(iiv) GOOD STANDING. Copies of (i) certificates of good
standing, existence or its equivalent with respect to the Borrower
certified as of a recent date by the appropriate Governmental
Authorities of the state of incorporation and each other state in
which the failure to so qualify and be in good standing could
reasonably be expected to have a Material Adverse Effect on the
business or operations of the Borrower and its Subsidiaries, taken
as a whole, and (ii) if available, a certificate indicating payment
of all corporate franchise taxes certified as of a recent date by
the appropriate governmental taxing authorities.
(v) INCUMBENCY. An incumbency certificate of the Borrower
certified by a secretary or assistant secretary to be true and
correct as of the Closing Date.
(c) LEGAL OPINIONS OF COUNSEL. The Administrative Agent shall have
received an opinion of legal counsel for the Borrower, dated the Closing
Date and addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent.
(d) DISCLOSURE SCHEDULES. The Lenders shall have received and
approved to their reasonable satisfaction copies of each of the disclosure
schedules to this Agreement showing projected information to be included in
the final versions of such schedules to be provided on the Funding Date.
Such schedules shall have been prepared by the Borrower in good faith and
based upon reasonable assumptions.
SECTION 4.2 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT.
The obligation of each Lender to make the initial Extensions of Credit on
the Funding Date is subject to the satisfaction of the following conditions
precedent on or before December 31, 2001:
(a) EXECUTION OF AGREEMENTS. The Administrative Agent shall have
received counterparts of (i) the Security Agreement and Pledge Agreement and
all other Security Documents executed by a duly authorized officer of the
Borrower and (ii) a Joinder Agreement to this Agreement, the Pledge
Agreement, the Security Agreement and all other Security Documents, in each
case conforming to the requirements of this Agreement and executed by a duly
authorized officer of each of the other Credit Parties party thereto.
67
<Page>
(b) AUTHORITY DOCUMENTS. The Administrative Agent shall have
received a secretary's certificate substantially in the form of SCHEDULE
4.1(b) with respect to the following:
(i) CHARTER DOCUMENTS. Copies of the articles of incorporation
or other charter documents, as applicable, of the Credit Parties
joining on the Funding Date, including the Acquired Company and its
Subsidiaries and each corporate general partner of such Person, as
applicable, certified to be true and complete as of a recent date by
the appropriate Governmental Authority of the state of its
incorporation.
(ii) PARTNERSHIP AGREEMENTS; DISCLOSURE INFORMATION. With
respect to each such Person that is a partnership or limited
partnership, a copy of the partnership agreement of such Person,
together with all amendments thereto, schedules and any disclosure
information, in each case certified by a general partner of such
Person as of the Closing Date to be true and correct and in force
and effect as of such date.
(iii) RESOLUTIONS. Copies of resolutions or certificate of
authorization of the board of directors or general partner of each
of the Credit Parties joining on the Funding Date, including the
Acquired Company and its Subsidiaries approving and adopting the
Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by an officer
or general partner of such Person, as applicable, as of the Closing
Date to be true and correct and in force and effect as of such date.
(iv) BYLAWS. A copy of the bylaws of each of the Acquired
Company and its Subsidiaries and each corporate general partner of
such Person, as applicable, certified by an officer of such Person
or corporate general partner, as applicable, as of the Closing Date
to be true and correct and in force and effect as of such date.
(v) GOOD STANDING. Copies of (i) certificates of good standing,
existence or its equivalent with respect to each of the Credit
Parties joining on the Funding Date, including the Acquired Company
and its Subsidiaries certified as of a recent date by the
appropriate Governmental Authorities of the state of incorporation
or organization and each other state in which the failure to so
qualify and be in good standing could reasonably be expected to have
a Material Adverse Effect on the business or operations of the
Borrower and its Subsidiaries, taken as a whole, except for those
Subsidiaries required to be so qualified and in good standing
pursuant to the terms of Section 5.15 following their reorganization
or restructure on or about the Funding Date, and (ii) if available,
a certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities.
68
<Page>
(vi) INCUMBENCY. An incumbency certificate of each of the Credit
Parties joining on the Funding Date, including the Acquired Company
and its Subsidiaries and each corporate general partner of such
Person, as applicable, certified by a secretary or assistant
secretary to be true and correct as of the Funding Date.
(c) LEGAL OPINIONS OF COUNSEL.
(i) The Administrative Agent shall have received an opinion of
legal counsel for the Borrower and its Subsidiaries (including the
Acquired Company and its Subsidiaries), dated the Funding Date and
addressed to the Administrative Agent and the Lenders, in form and
substance reasonably acceptable to the Administrative Agent; and
(ii) The Administrative Agent shall have received an opinion of
Moore & Van Allen, PLLC, dated the Funding Date and addressed to the
Administrative Agent and the Lenders, in form and substance
reasonably acceptable to the Administrative Agent.
(d) LITIGATION. There shall not exist any pending litigation or
investigation or unresolved regulatory matters affecting or relating to the
Borrower or any of its Subsidiaries, this Agreement and the other Credit
Documents or the Acquisition that in the reasonable judgment of the Agents
could be expected to have a Material Adverse Effect, that has not been
settled, dismissed, vacated, discharged or terminated prior to the Closing
Date.
(e) PERSONAL PROPERTY COLLATERAL. The Administrative Agent shall
have received, in form and substance satisfactory to the Agents:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office and state of organization
of each Credit Party and each jurisdiction where any Collateral is
located or where a filing would need to be made in order to perfect
the Administrative Agent's security interest in the Collateral,
copies of the financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted Liens;
(ii) duly executed UCC financing statements for each appropriate
jurisdiction as is necessary to perfect the Administrative Agent's
security interest in the Collateral;
(iii) duly executed consents as are necessary to perfect the
Lenders' security interest in the Collateral; and
(iv) in the case of any personal property Collateral located at
premises leased by a Credit Party, such estoppel letters, consents
and waivers from the landlords on such real property as may be
required by the Administrative Agent.
69
<Page>
(f) REAL PROPERTY COLLATERAL. The Administrative Agent shall have
received, in form and substance satisfactory to the Agents:
(i) fully executed and notarized mortgages, deeds of trust or
deeds to secure debt (each, as the same may be amended, modified,
restated or supplemented from time to time, a "MORTGAGE INSTRUMENT"
and collectively the "MORTGAGE INSTRUMENTS") encumbering the fee
interest in the properties listed in SCHEDULE 3.19(a) as properties
owned by the Credit Parties and designated as a material property,
other than real properties owned by the Acquired Company or its
Subsidiaries (each a "MORTGAGED PROPERTY" and collectively the
"MORTGAGED PROPERTIES") and a legal opinion with respect to the
enforceability of the Mortgage Instruments in form and substance
reasonably satisfactory to the Administrative Agent;
(ii) a title report obtained by the Credit Parties in respect of
each of the Mortgaged Properties attached as SCHEDULE 4.2(f)(II)
(each a "SIGNIFICANT MORTGAGED PROPERTY");
(iii) with respect to each Significant Mortgaged Property, an
ALTA or substantially equivalent mortgagee title insurance policy
issued by a title company acceptable to the Administrative Agent
(the "MORTGAGE POLICIES"), in amounts acceptable to the
Administrative Agent with respect to any particular Significant
Mortgaged Property, assuring the Administrative Agent that each of
the Mortgage Instruments creates a valid and enforceable first
priority mortgage lien on the applicable Significant Mortgaged
Property, free and clear of all defects and encumbrances except
Permitted Liens, which Mortgage Policies shall be in form and
substance reasonably satisfactory to the Administrative Agent and
shall provide for affirmative insurance and such reinsurance as the
Administrative Agent may reasonably request, all of the foregoing in
form and substance reasonably satisfactory to the Administrative
Agent;
(iv) evidence as to (A) whether any Mortgaged Property is in an
area designated by the Federal Emergency Management Agency as having
special flood or mud slide hazards (a "FLOOD HAZARD PROPERTY") and
(B) if any Mortgaged Property is a Flood Hazard Property, (1)
whether the community in which such Mortgaged Property is located is
participating in the National Flood Insurance Program, (2) the
applicable Credit Party's written acknowledgment of receipt of
written notification from the Administrative Agent (a) as to the
fact that such Mortgaged Property is a Flood Hazard Property and (b)
as to whether the community in which each such Flood Hazard Property
is located is participating in the National Flood Insurance Program
and (3) copies of insurance policies or certificates of insurance of
the Borrower and its Subsidiaries evidencing flood insurance
reasonably satisfactory to the Administrative Agent and naming the
Administrative Agent as sole loss payee on behalf of the Lenders;
and
70
<Page>
(v) existing maps or plats of an as-built survey of the sites of
the Significant Mortgaged Properties certified to the Administrative
Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date satisfactory to each of the
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor reasonably satisfactory to each of
the Administrative Agent and the Title Insurance Company, which maps or
plats and the surveys on which they are based shall be (A) sufficient
to delete any standard printed survey exception contained in the
applicable title policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992 or (B) otherwise satisfactory
to the Administrative Agent.
(g) LIABILITY, CASUALTY AND BUSINESS INTERRUPTION INSURANCE. The
Administrative Agent shall have received copies of insurance policies or
certificates of insurance evidencing liability and casualty insurance
meeting the requirements set forth herein or in the Security Documents and
business interruption insurance satisfactory to the Agents. The
Administrative Agent shall be named (to the extent permitted) as loss payee
and/or additional insured on all such insurance policies for the benefit of
the Lenders.
(h) FEES. The Administrative Agent, the Syndication Agent and the
Lenders shall have received all fees, if any, owing pursuant to the Fee
Letter and Section 2.6.
(i) RELIANCE. The Administrative Agent shall have received a copy of
each opinion, report, agreement, and other document required to be delivered
pursuant to the Acquisition Documents in connection with the Acquisition and
related transactions, and to the extent available with a letter from each
Person delivering any such opinion authorizing reliance thereon by the
Agents and the Lenders, all in form and substance reasonably satisfactory to
the Agents.
(j) SOLVENCY EVIDENCE. The Administrative Agent shall have received
an officer's certificate for the Credit Parties prepared by the chief
financial officer or treasurer of the Borrower as to the financial
condition, solvency and related matters of the Credit Parties taken as a
whole, after giving effect to the initial borrowings under the Credit
Documents, in substantially the form of SCHEDULE 4.2(j) hereto.
(k) ACCOUNT DESIGNATION LETTER. The Administrative Agent shall have
received the executed Account Designation Letter in the form of SCHEDULE
1.1(a) hereto.
(l) CORPORATE STRUCTURE. The corporate capital and ownership
structure of the Borrower and its Subsidiaries (after giving effect to the
Acquisition) shall be as described in SCHEDULE 3.12. The Agents shall be
satisfied that the management structure, legal structure, voting control,
liquidity and capitalization of the Borrower as of the Funding Date shall
not have materially and adversely changed from the information relating
thereto previously provided to the Lenders.
71
<Page>
(m) CONSUMMATION OF ACQUISITION. The Administrative Agent shall have
received evidence that the transactions contemplated by the Merger Agreement
have been consummated in accordance with the terms thereof which shall be
reasonably acceptable to the Agents (including without limitation the amount
and form of consideration to be paid to shareholders of the Acquired
Company), that the representations and warranties in the Merger Agreement
shall be accurate as of the Funding Date and the conditions contained
therein shall have been satisfied as of such date, that the Senior Notes
shall remain outstanding and that the Acquired Company shall remain in full
compliance with the terms thereof and the Administrative Agent shall have
received a final copy of the Merger Agreement, all material documents
executed in connection therewith and all amendments or supplements thereto,
certified by a Responsible Officer of the Borrower to be true and correct
and in full force and effect.
(n) GOVERNMENT CONSENT. The Administrative Agent shall have received
evidence that all governmental, shareholder and material third party
consents and approvals (including, without limitation, consents and
approvals of the Board of Directors of the Acquired Company) necessary in
connection with the transactions contemplated by the Merger Agreement and
the financings and other transactions contemplated hereby have been obtained
and all applicable waiting periods have expired without any action being
taken by any authority that could restrain, prevent or impose any material
adverse conditions on such transactions or that could seek or threaten any
of the foregoing.
(o) COMPLIANCE WITH LAWS. The financings and other transactions
contemplated hereby shall be in compliance with all applicable laws and
regulations (including Environmental Laws and all applicable securities and
banking laws, rules and regulations).
(p) BANKRUPTCY. There shall be no bankruptcy or insolvency
proceedings with respect to the Borrower or any of its Restricted
Subsidiaries.
(q) FINANCIAL STATEMENTS. The Administrative Agent shall have
received copies of the financial statements referred to in Section 3.1
hereof. The Agents and the Lenders shall have received audited financial
statements for the Borrower and the Acquired Company for the most recently
ended fiscal year ending more than 90 days prior to the Funding Date.
(r) SOURCES AND USES OF FUNDS. The Administrative Agent shall have
received a memorandum detailing the sources and uses of the funds to be used
to consummate the Acquisition, the other transactions contemplated by this
Agreement and the other Credit Documents and related expenses, in form and
substance reasonably satisfactory to the Agents.
(s) PRO FORMA OPENING STATEMENTS AND UPDATED PROJECTIONS: The Agents
and the Lenders shall have received PRO FORMA opening financial statements
("PRO FORMA
72
<Page>
OPENING STATEMENTS") giving effect to the Acquisition and projections
("UPDATED PROJECTIONS") updating the projection previously provided to the
Lenders, together with such information as the Agents and the Lenders may
reasonably request to confirm the tax, legal, and business assumptions made
in such Pro Forma Opening Statements and Updated Projections. The Pro Forma
Opening Statements and Updated Projections must demonstrate, in the
reasonable judgment of the Agents, together with all other information then
available to the Agents and the Lenders, the ability of the Borrower and its
Subsidiaries, taken as a whole, to repay their debts and satisfy their
respective other obligations as and when due and to comply with the
financial covenants set forth in Section 5.9 hereof.
(t) FAIRNESS OPINION. Receipt by the Agents of a copy of any
fairness opinion from the Acquired Company's investment banker addressed to
the Acquired Company's board of directors, relating to the terms of the
Acquisition.
(u) ENVIRONMENTAL REPORTS: The Administrative Agent shall have
received a copy of each existing environmental review report detailing any
environmental hazards or liabilities relating to the Mortgaged Properties,
and, if requested by the Agents, a reliance letter satisfactory in form and
substance to the Agents, from the environmental review firm that prepared
such report.
(v) APPROVAL OF ASSET DISPOSITION. The Agents shall have reviewed
and approved (such approval not to be unreasonably withheld) any asset sale,
disposition or other divestiture required by or in connection with any
governmental or regulatory approval required in connection with the
consummation of the Acquisition.
(w) LEVERAGE RATIO. The Borrower shall have demonstrated to the
Agents that the ratio of Funded Debt to PRO FORMA adjusted consolidated
EBITDA for the Borrower and its Subsidiaries (to be determined by the
Agents), after giving effect to the Acquisition, for the twelve consecutive
calendar month period ending with the last calendar month immediately
preceding the Funding Date, shall be no greater than 4.25 to 1.0.
(x) EXISTING INDEBTEDNESS. All existing Indebtedness for borrowed
money of the Borrower and its Restricted Subsidiaries (other than the
Indebtedness listed on SCHEDULE 6.1(b) and the Senior Notes which shall
remain outstanding and with respect to which the Acquired Company shall
remain in full compliance with the terms thereof) shall have been repaid in
full with the proceeds of the initial Loans hereunder and terminated, and
Indebtedness under that certain $300,000,000 Credit Agreement dated as of
January 4, 2000 among the Borrower, First Union, as administrative agent,
Bank One, NA, as syndication agent, and the lenders party thereto shall have
been repaid in full and such credit agreement shall have been terminated and
any Liens granted thereunder or pursuant thereto shall have been released or
arrangements satisfactory to the Agents shall have been made with respect
thereto.
73
<Page>
(y) MATERIAL ADVERSE CHANGE. There shall not have been any
occurrence or happening resulting in a Material Adverse Effect since (i) May
30, 2000 or (ii) the pro forma financial statements received by the Agents
on March 22, 2001.
(z) OFFICER'S CERTIFICATES. The Administrative Agent shall have
received a certificate or certificates executed by the chief financial
officer or treasurer of the Borrower on behalf of the Credit Parties as of
the Funding Date stating that (A) the Credit Parties and each of their
Subsidiaries are in compliance with all existing material financial
obligations, (B) all governmental, shareholder and third party consents and
approvals, if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (C) no action, suit, investigation
or proceeding is pending or threatened in any court or before any arbitrator
or governmental instrumentality that purports to affect a Credit Party, any
of the Credit Parties' Subsidiaries or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding would
have or be reasonably expected to have a Material Adverse Effect, and (D)
immediately after giving effect to this Credit Agreement, the other Credit
Documents and all the transactions contemplated therein to occur on such
date, (1) no Default or Event of Default exists, (2) all representations and
warranties contained herein and in the other Credit Documents are true and
correct in all material respects, and (3) the Credit Parties are in
compliance with each of the financial covenants set forth in Section 5.9 on
a pro forma basis.
(aa) TIPES INTEREST DEFERRAL. The Administrative Agent shall have
received a certificate executed by the chief financial officer or treasurer
of the Borrower certifying that at least twenty (20) quarters remain during
which the Borrower may defer interest payments on the subordinated
debentures related to the TIPES in accordance with the terms thereof.
(bb) DISCLOSURE SCHEDULES. The Lenders shall have received final
completed copies of each of the disclosure schedules to this Agreement and
the Agents shall have approved the information contained therein to their
reasonable satisfaction to the extent that such information varies
materially and adversely from the disclosure schedules delivered on the
Closing Date.
(cc) ADDITIONAL MATTERS. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent
and its counsel.
SECTION 4.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit
hereunder is subject to the satisfaction of the following conditions
precedent on the date of making such Extension of Credit:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Credit Parties herein, in the Security Documents or
which are contained in any
74
<Page>
certificate furnished at any time under or in connection herewith shall
be true and correct in all material respects on and as of the date of such
Extension of Credit as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to
the Extension of Credit to be made on such date unless such Default or Event
of Default shall have been waived in accordance with this Agreement.
(c) COMPLIANCE WITH COMMITMENTS. Immediately after giving effect to
the making of any such Extension of Credit (and the application of the
proceeds thereof), (i) the sum of the aggregate principal amount of
outstanding Revolving Loans PLUS Swingline Loans PLUS LOC Obligations shall
not exceed the Revolving Committed Amount, (ii) the LOC Obligations shall
not exceed the LOC Committed Amount and (iii) the Swingline Loans shall not
exceed the Swingline Committed Amount.
(d) ADDITIONAL CONDITIONS TO REVOLVING LOANS. If such Loan is made
pursuant to Section 2.1, all conditions set forth in such Section shall have
been satisfied.
(e) ADDITIONAL CONDITIONS TO SWINGLINE LOAN. If such Loan is made
pursuant to Section 2.2, all conditions set forth in such Section shall have
been satisfied.
(f) ADDITIONAL CONDITIONS TO LETTERS OF CREDIT. If such Extension of
Credit is made pursuant to Section 2.3, all conditions set forth in such
Section shall have been satisfied.
Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a) through (f) of this
Section have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date or
Funding Date (where so indicated), and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Note remains
outstanding and unpaid and the Credit Party Obligations, together with interest,
Commitment Fees and all other amounts owing to the Administrative Agent or any
Lender hereunder, are paid in full, the Borrower shall, and shall cause each of
its Subsidiaries to:
75
<Page>
SECTION 5.1 FINANCIAL STATEMENTS.
Furnish to the Administrative Agent and each of the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the end of each fiscal year of the Borrower:
(i) (A) consolidated statements of income, stockholders' equity
and cash flows of the Borrower and its Subsidiaries for such fiscal
year and (B) the related consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal year, setting
forth in each case after the first anniversary of the Funding Date
in comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that such consolidated financial
statements fairly present the consolidated financial condition and
results of operations of the Borrower and its Subsidiaries, as at
the end of, and for, such fiscal year in accordance with GAAP, and a
certificate of such accountants stating that, in making the
examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default or Event of Default;
and
(ii) (A) consolidated statements of income and cash flows of the
Borrower and its Restricted Subsidiaries and (B) the related
consolidated balance sheet of the Borrower and its directly owned
Subsidiaries combined in significant groups, in each case as at the
end of such fiscal year, setting forth in each case after the first
anniversary of the Funding Date in comparative form the
corresponding consolidated figures for the preceding fiscal year,
accompanied by a certificate of a Responsible Officer of the
Borrower, which certificate shall state that such consolidated
financial statements fairly present the consolidated financial
condition and results of operations of the Borrower and its
Subsidiaries as combined or of the Borrower and its Restricted
Subsidiaries, as the case may be, and such consolidated financial
statements fairly present the respective financial condition and
results of operations of the Borrower and each group of such
Subsidiaries, in accordance with GAAP consistently applied, as at
the end of and for such period (subject to normal year-end audit
adjustments); and
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the end of each of the first three quarterly
fiscal periods of each fiscal year of the Borrower, (i) (A) consolidated
statements of income and cash flows of the Borrower and its Subsidiaries,
(B) consolidated statements of income and cash flows of the Borrower and its
Restricted Subsidiaries, in each case for such period and for the period
from the beginning of the respective fiscal year to the end of such period,
and (C) consolidating statements of income of the Borrower and its directly
owned Subsidiaries combined in significant groups for such period, and (ii)
(A) the related consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries and (B) the related consolidated balance sheet of the
Borrower and its Restricted Subsidiaries, in each case
76
<Page>
as at the end of such period, setting forth in each case after the
first anniversary of the Funding Date (other than consolidating statements)
in comparative form the corresponding consolidated figures for the
corresponding periods in the preceding fiscal year, accompanied by a
certificate of a Responsible Officer of the Borrower, which certificate
shall state that such consolidated financial statements fairly present the
consolidated financial condition and results of operations of the Borrower
and its Subsidiaries or of the Borrower and its Restricted Subsidiaries, as
the case may be, and such consolidating financial statements fairly present
the respective unconsolidated financial condition and results of operations
of the Borrower and each group of such Subsidiaries, in accordance with GAAP
consistently applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments);
all such financial statements to be accompanied by a description of, and an
estimation of the effect on the financial statements on account of, a change, if
any, in the application of accounting principles as provided in Section 1.3.
SECTION 5.2 CERTIFICATES; OTHER INFORMATION.
Furnish to the Administrative Agent and each of the Lenders:
(a) promptly upon their becoming available, to the extent not
available by electronic means, copies of all registration statements and
regular periodic reports, if any, that the Borrower shall have filed with
the SEC or any national securities exchange;
(b) promptly upon mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(c) at the time it furnishes each set of financial statements
pursuant to Sections 5.1(a) and 5.1(b) above, a certificate of a Responsible
Officer of the Borrower (i) certifying that (A) each of the Credit Parties
and its Subsidiaries during such period observed or performed in all
material respects all of its covenants and other agreements, and satisfied
in all material respects every condition, contained in this Agreement to be
observed, performed or satisfied by it and (B) no Default or Event of
Default has occurred and is continuing (or, if any Default or Event of
Default has occurred and is continuing, describing the same in reasonable
detail and describing the action that the Borrower has taken or proposes to
take with respect thereto), (ii) setting forth in reasonable detail the
computations necessary to determine whether the Credit Parties are in
compliance with Section 5.9 hereof as of the end of the respective quarterly
fiscal period or fiscal year and (iii) the information on SCHEDULE 3.12,
SCHEDULE 3.16, SCHEDULE 3.19 and SCHEDULE 3.25 is updated to be true and
correct as of such date;
(d) within thirty (30) days after the same are sent, to the extent
not available by electronic or other readily accessible means, copies of all
reports (other than those otherwise provided pursuant to Section 5.1 and
those which are of a promotional nature) and other financial information
which the Borrower sends to its stockholders, and within thirty days after
the same are filed, copies of all financial statements and non-confidential
77
<Page>
reports which the Borrower may make to, or file with the Securities and
Exchange Commission or any successor or analogous Governmental Authority;
(e) within ninety (90) days after the end of each fiscal year of the
Borrower, a certificate containing information regarding the amount of all
Asset Dispositions, Debt Issuances, and Equity Issuances that were made
during such prior fiscal year and amounts received in connection with any
Recovery Event during such prior fiscal year; and
(f) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrower or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender or the Administrative Agent may reasonably request.
SECTION 5.3 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with industry practice
(subject, where applicable, to specified grace periods) all of its material
obligations of whatever nature and any additional costs that are imposed as a
result of any failure to so pay, discharge or otherwise satisfy such
obligations, except when the amount or validity of such obligations and costs is
currently being contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have been provided
on the books of the Borrower or its Restricted Subsidiaries, as the case may be.
SECTION 5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
(a) Preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (PROVIDED that nothing
in this Section 5.4 shall prohibit any transaction expressly permitted under
Section 6.4 hereof).
(b) Pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of its
assets prior to the date on which penalties attach thereto, except for any
such tax, assessment, charge or levy the payment of which is being contested
in good faith and by proper proceedings and against which adequate reserves
are being maintained.
SECTION 5.5 MAINTENANCE OF PROPERTY; INSURANCE.
(a) Keep all material property used or useful in its business in
good working order and condition (ordinary wear and tear and obsolescence
excepted).
(b) Maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in
the amounts customarily maintained by such
78
<Page>
corporations; and furnish to the Administrative Agent, upon written
request, full information as to the insurance carried; PROVIDED, HOWEVER,
that the Borrower and its Subsidiaries may maintain self insurance plans to
the extent companies of similar size and in similar businesses do so. The
Administrative Agent shall be named as loss payee or mortgagee, as its
interest may appear, and/or additional insured with respect to any such
insurance providing coverage in respect of any Collateral, and each provider
of any such insurance shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days' prior written notice before any such policy or policies shall be
altered or canceled, and that no act or default of the Borrower or any of
its Subsidiaries or any other Person shall affect the rights of the
Administrative Agent or the Lenders under such policy or policies. The
present insurance coverage of the Borrower and its Subsidiaries is outlined
as to carrier, policy number, expiration date, type and amount on SCHEDULE
5.5(b).
(c) On or before the Funding Date, deliver, to the extent not
previously delivered, to the Administrative Agent certificates of insurance
satisfactory to the Administrative Agent evidencing the existence of all
insurance required to be maintained by the Borrower and its Restricted
Subsidiaries hereunder and setting forth the respective coverages, limits of
liability, carrier, policy number and period of coverage. Thereafter, each
year the Borrower will deliver to the Administrative Agent certificates of
insurance evidencing that all insurance required to be maintained by the
Borrower and its Restricted Subsidiaries hereunder will be in effect through
the calendar year following the date of such certificates, subject only to
the payment of premiums as they become due.
(d) In case of any material loss, damage to or destruction of the
Property of any Credit Party or any part thereof, such Credit Party shall
promptly give written notice thereof to the Administrative Agent generally
describing the nature and extent of such damage or destruction.
SECTION 5.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
(a) Keep adequate records and books of account in which complete
entries in accordance with GAAP consistently applied and all Requirements of
Law shall be made of all dealings and transactions in relation to its
businesses and activities.
(b) Upon reasonable prior notice, permit representatives of any
Lender or the Administrative Agent, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect any
of its Real Properties, and to discuss its business and affairs with its
officers, all to the extent reasonably requested by such Lender or the
Administrative Agent (as the case may be).
SECTION 5.7 NOTICES.
Give prompt notice in writing to the Administrative Agent (which shall
promptly transmit such notice to each Lender) of:
79
<Page>
(a) within five Business Days after any Credit Party knows or has
reason to know thereof, the occurrence of any Default or Event of Default or
a change in the Borrower's long-term public debt rating by either S&P or
Moody's;
(b) any default or event of default under any Contractual Obligation
of the Borrower or any of its Restricted Subsidiaries which could reasonably
be expected to have a Material Adverse Effect;
(c) any legal or arbitral proceedings before any Governmental
Authority and any material development in respect of such legal or other
proceedings affecting the Borrower or any of its Restricted Subsidiaries,
except proceedings that, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect;
(d) as soon as possible, and in any event within ten days after any
Credit Party or any of its Restricted Subsidiaries knows or has reason to
believe that any of the events or conditions specified below with respect to
any Plan or Multiemployer Plan has occurred or exists, a statement signed by
a Responsible Officer of the Borrower or such Credit Party setting forth
details respecting such event or condition and the action, if any, that the
Borrower, any Credit Party or any ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed
with or given to PBGC by the Borrower, any Credit Party or any ERISA
Affiliate with respect to such event or condition):
(i) any Reportable Event with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of
such event (PROVIDED that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d) of the
Code) and any request for a waiver under Section 412(d) of the Code
for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any Plan or any action taken by any Credit Party
or any of its Subsidiaries or any ERISA Affiliate to terminate any
Plan;
(iii) the institution by PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by any Credit Party or any of
its Subsidiaries or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
80
<Page>
(iv) the complete or partial withdrawal from a Multiemployer
Plan by any Credit Party or any of its Subsidiaries or any ERISA
Affiliate that results in liability under Section 4201 or 4204 of
ERISA (including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by any Credit Party or
any of its Subsidiaries or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against any Credit Party or any of its
Subsidiaries or any ERISA Affiliate to enforce Section 515 of ERISA,
which proceeding is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result
in the loss of tax-exempt status of the trust of which such Plan is
a part if any Credit Party or any of its Subsidiaries or any ERISA
Affiliate fails to timely provide security to the Plan in accordance
with the provisions of said Sections;
(e) any assertion of any Environmental Claim by any Person against,
or with respect to the activities of, the Borrower or any of its
Subsidiaries and notice of any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations, other
than any Environmental Claim or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a
Material Adverse Effect; and
(f) any other development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto. In
the case of any notice of a Default or Event of Default, the Borrower shall
specify that such notice is a Default or Event of Default notice on the face
thereof.
SECTION 5.8 ENVIRONMENTAL LAWS.
Without limiting the general terms set forth in Section 5.11:
(a) Comply in all material respects with, and ensure compliance in
all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material respects
with and maintain, and ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
81
<Page>
Environmental Laws except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Lenders, and their respective employees, agents, officers and directors,
from and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to
the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Borrower any of its Subsidiaries or
the Real Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements in
this paragraph shall survive repayment of the Notes and all other amounts
payable hereunder.
SECTION 5.9 FINANCIAL COVENANTS.
Commencing on the day immediately following the Funding Date, the
Borrower shall, and shall cause each of its Restricted Subsidiaries to, comply
with the following financial covenants:
(a) LEVERAGE RATIO. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower and its Restricted Subsidiaries occurring
during each of the periods set forth below, shall be less than or equal to
the following:
<Table>
<Caption>
Period Ratio
------ -----
Funding Date through and
including December 31, 2002 4.25 to 1.00
January 1, 2003 through and
including December 31, 2003 4.00 to 1.00
January 1, 2004 through and
including December 31, 2004 3.75 to 1.00
January 1, 2005 and thereafter 3.25 to 1.00
</Table>
82
<Page>
(b) INTEREST COVERAGE RATIO. The Interest Coverage Ratio, as of the
last day of each fiscal quarter of the Borrower and its Restricted
Subsidiaries, shall be greater than or equal to 3.00 to 1.0.
(c) MINIMUM CONSOLIDATED NET WORTH. The Consolidated Net Worth shall
at all times be equal to or greater than $1,200,000,000, increased on a
cumulative basis as of the end of each fiscal quarter of the Borrower and
its Restricted Subsidiaries, commencing with the fiscal quarter commencing
after the Funding Date, by an amount equal to 50% of the net income (with no
deduction for net losses) of the Borrower and its Restricted Subsidiaries on
a consolidated basis for the fiscal quarter then ended PLUS 75% of the
amount by which the "total stockholders equity" of the Borrower is increased
as a result of any public or private offering of ownership interests of the
Borrower after the Funding Date (other than increases to the extent such
increases result from Equity Issuances to, or capital contributions from,
any Affiliate of the Borrower or Equity Issuances pursuant to an employee or
director stock option or incentive plan or other employee benefit plan or
from Equity Issuances in connection with the acquisition of assets or
Capital Stock). Promptly upon consummation of each such public or private
offering, the Borrower shall notify the Administrative Agent in writing of
the amount of such increase in total stockholders equity.
SECTION 5.10 OBLIGATIONS REGARDING SUBSIDIARIES; ADDITIONAL SUBSIDIARY
GUARANTORS.
(a) Except as permitted by Section 6.4, the Borrower will, and will
cause each of its Restricted Subsidiaries to take such action from time to
time as shall be necessary to ensure that each of its Restricted
Subsidiaries remains a Subsidiary at all times.
(b) The Credit Parties will cause each of their wholly-owned
Domestic Subsidiaries that are Material Subsidiaries and Restricted
Subsidiaries (other than Suiza Capital Trust II), whether newly formed,
after acquired or otherwise existing, to promptly become a Guarantor
hereunder by way of execution of a Joinder Agreement and take such other
action as may be required pursuant to the terms of Section 5.13. The
guaranty obligations of each Additional Credit Party shall be secured by all
real and personal property assets of such Additional Credit Party pursuant
to the requirements of Section 5.13; provided, that obligations of the
Acquired Company and its Subsidiaries shall not be secured by any real
property owned by the Acquired Company or any of its Subsidiaries nor by any
equity ownership interests of any of the Acquired Company's Subsidiaries
that own any real property.
SECTION 5.11 COMPLIANCE WITH LAW.
Each Credit Party will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its assets if
noncompliance with any such law, rule, regulation, order or restriction could
reasonably be expected to have a Material Adverse Effect.
83
<Page>
SECTION 5.12 PLEDGED ASSETS.
(a) Each Credit Party will cause (i) (A) 100% of the Capital Stock
(or, if less, the full amount owned by such Credit Party) of each of the
direct or indirect Domestic Subsidiaries which are Material Subsidiaries of
such Person and which are Restricted Subsidiaries, but which are not
Subsidiaries of the Acquired Company, and (B) 65% of the Capital Stock (or,
if less, the full amount owned by such Credit Party) of each of the First
Tier Foreign Subsidiaries which are Material Subsidiaries of such Person
(but which are not Subsidiaries of the Acquired Company), unless otherwise
agreed by the Administrative Agent, and (ii) all of such Credit Party's real
and personal property Collateral to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent pursuant to
the terms and conditions of the Security Documents or such other security
documents as the Administrative Agent shall reasonably request subject only
to Permitted Liens; provided, however, that notwithstanding the foregoing,
no Unrestricted Subsidiary shall be required to pledge the Capital Stock of
its Subsidiaries and the Borrower shall not be required to pledge the
Capital Stock of Suiza Capital Trust II, and the Acquired Company and its
Subsidiaries shall not be required to grant Liens in any real property nor
in any equity ownership interests of any of the Acquired Company's
Subsidiaries that own any real property.
(b) Within 30 days after a Credit Party changes the location of its
chief executive office, the Borrower shall notify the Administrative Agent
of such change and shall execute and deliver, or cause to be executed and
delivered, to the Administrative Agent such UCC financing statements and
other documentation as the Administrative Agent may reasonably request.
SECTION 5.13 ADDITIONAL CREDIT PARTIES.
As soon as practicable and in any event within 30 days after any Person
(whether newly formed, acquired or otherwise) becomes a Material Subsidiary that
is a Restricted Subsidiary of any Credit Party the Borrower shall provide the
Administrative Agent with written notice thereof setting forth information in
reasonable detail describing all of the assets of such Person and shall (a) if
such Person is a wholly-owned Domestic Subsidiary of a Credit Party, cause such
Person to execute a Joinder Agreement in substantially the same form as SCHEDULE
5.13 (subject to exceptions regarding real property and ownership interests as
collateral as set forth herein in the case of a Subsidiary of the Acquired
Company), (b) cause 100% (if such Person is a Domestic Subsidiary of a Credit
Party other than a Subsidiary of the Acquired Company) or, unless otherwise
agreed by the Administrative Agent, 65% (if such Person is a First Tier Foreign
Subsidiary of a Credit Party that is also a Material Subsidiary) of the Capital
Stock of such Person owned by a Credit Party to be delivered to the
Administrative Agent (together with undated stock powers signed in blank
(unless, with respect to a First Tier Foreign Subsidiary, such stock powers are
deemed unnecessary by the Administrative Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person)) and pledged
to the Administrative Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge Agreement or joinder to the Pledge
Agreement and otherwise in form acceptable to the Administrative Agent, (c) if
such Person is a Restricted Subsidiary, cause such Person to
84
<Page>
grant a security interest in its material real property (excluding real property
owned by a Subsidiary of the Acquired Company) and the personal property
Collateral of such Person pursuant to appropriate mortgages and/or security
agreements in substantially the form of the Security Agreement or a joinder to
the Security Agreement, subject to no other Liens other than Permitted Liens,
and (d) deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, certified resolutions and
other organizational and authorizing documents of such Person and favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent's liens
thereunder).
SECTION 5.14 AMENDMENTS, MODIFICATIONS.
The Borrower will furnish to the Administrative Agent a copy of each
modification, supplement or waiver of any provisions of any agreement,
instrument or other document evidencing or relating to the charter or bylaws of
the Borrower or any of its Restricted Subsidiaries promptly upon the
effectiveness thereof (and the Administrative Agent will promptly furnish a copy
thereof to each Lender).
SECTION 5.15 FURTHER ASSURANCES.
Upon the request of the Administrative Agent promptly perform or cause to be
performed any and all acts and execute or cause to be executed any and all
documents (including, without limitation, financing statements and continuation
statements) for filing under the provisions of the Uniform Commercial Code or
any other Requirement of Law which are necessary or advisable to maintain in
favor of the Administrative Agent, for the benefit of the Lenders, Liens on the
Collateral that are duly perfected in accordance with all applicable
Requirements of Law.
SECTION 5.16 GOOD STANDING; POST-CLOSING QUALIFICATION.
Within 30 days after the Funding Date, the Credit Parties will cause each of
their Subsidiaries that are restructured or reorganized on or about the Funding
Date to be duly qualified to conduct business and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification except to the extent
that the failure to so qualify or be in good standing could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Funding Date, and
thereafter for so long as this Agreement is in effect and until the Commitments
have terminated, no Note remains outstanding and unpaid and the Credit Party
Obligations, together with interest, Commitment Fees and all other amounts owing
to the Administrative Agent or any Lender
85
<Page>
hereunder, are paid in full, the Borrower shall, and shall cause each of its
Subsidiaries, to act in accordance with the following:
SECTION 6.1 INDEBTEDNESS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and the
other Credit Documents;
(b) Indebtedness of the Borrower and its Restricted Subsidiaries
existing as of the Funding Date (and not to be refinanced by the Loans as
provided herein) as referenced in the financial statements referenced in
Section 3.1 (and set out more specifically in SCHEDULE 6.1(b)) hereto and
renewals, refinancings or extensions thereof in a principal amount not in
excess of that outstanding as of the date of such renewal, refinancing or
extension.
(c) Indebtedness (including Capital Lease Obligations and
obligations permitted under Section 6.12) incurred to finance the purchase
of equipment, and other Capital Lease Obligations, not to exceed $50,000,000
in the aggregate outstanding at any time; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost of
construction of such asset and (ii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing;
(d) intercompany Indebtedness of the Restricted Subsidiaries of the
Borrower to the Borrower or to other Restricted Subsidiaries of the Borrower
or of the Borrower to any of its Restricted Subsidiaries;
(e) obligations in connection with any Permitted Receivables
Financing, to the extent such obligations constitute Indebtedness;
(f) additional unsecured Indebtedness and/or Subordinated
Indebtedness on terms and conditions reasonably satisfactory to the Agents
of the Borrower and its Restricted Subsidiaries up to but not exceeding
$100,000,000 in the aggregate at any one time outstanding;
(g) Indebtedness of a Restricted Subsidiary (i) consisting of
tax-advantaged industrial revenue bond, industrial development bond or other
similar financings assumed (or taken subject to) in connection with (but not
incurred in connection with or in anticipation of) a Permitted Acquisition
and (ii) existing at the time such Person becomes a Restricted Subsidiary
pursuant to a Permitted Acquisition provided that such Indebtedness was not
incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary;
86
<Page>
(h) Indebtedness in respect of Hedging Agreements to the extent
permitted hereunder;
(i) Indebtedness of the Acquired Company and its Subsidiaries under
the Senior Notes in an aggregate principal amount not to exceed $700,000,000
(as such amount may be reduced from time to time);
(j) other Subordinated Indebtedness; and
(k) other secured Indebtedness of the Borrower and its Restricted
Subsidiaries up to but not exceeding $30,000,000 in the aggregate at any one
time outstanding.
SECTION 6.2 LIENS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its assets, whether now owned or hereafter acquired, except for Permitted
Liens.
SECTION 6.3 NATURE OF BUSINESS.
Neither the Borrower nor any of its Restricted Subsidiaries will engage
to any substantial extent in any line or lines of business activity other than
operations involved in the manufacture, processing and distribution of food or
packaging products or the lines of business conducted by the Borrower or any of
its Restricted Subsidiaries as of the Closing Date or which are related thereto.
SECTION 6.4 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
(a) enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution);
(b) acquire any business or assets from, or Capital Stock of, or be
a party to any acquisition of, any Person except:
(i) for purchases of inventory and other assets to be sold or
used in the ordinary course of business;
(ii) Investments permitted under Section 6.5 hereof; and
(iii) Permitted Acquisitions;
(c) convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or assets,
whether now owned or hereafter
87
<Page>
acquired (including, without limitation, receivables and leasehold
interests), but excluding:
(i) any Excluded Disposition or Specified Sale;
(ii) obsolete or worn-out Property, tools or equipment no longer
used or useful in its business (other than any Excluded Disposition)
or real Property no longer used or useful in its business;
(iii) any sale, lease or transfer of assets from a Credit Party
to another Credit Party;
(iv) any sale of Transferred Assets by such Person to a
Receivables Financier in connection with a Permitted Receivables
Financing;
(v) any sale to the extent permitted under Section 6.12;
(vi) transfers of Capital Stock and assets pursuant to the DFA
Agreement, and sales, transfers and other dispositions required or
requested by any Governmental Authority in connection with any
required consent to transactions contemplated by the Merger
Agreement; and
(vii) transfers of other assets so long as the aggregate amount
thereof sold or otherwise disposed of in any single fiscal year by
the Borrower and its Restricted Subsidiaries shall not have a book
value in excess of ten percent of the book value of the total assets
of the Borrower and its Restricted Subsidiaries owned on the later
of the Funding Date or the first day of such fiscal year;
PROVIDED, that in each case with respect to subsections (vii) above at
least 85% of the consideration received therefor by the Borrower or any such
Restricted Subsidiary is in the form of cash or Cash Equivalents or Capital
Stock or assets acquired in connection with a Permitted Acquisition or
Permitted Investment; and
(d) Notwithstanding the foregoing provisions of this Section 6.4, so
long as no Default or Event of Default shall have occurred and be
continuing, and after giving effect to any of the succeeding transactions,
no Default or Event of Default would exist hereunder and so long as the
Liens created under the Security Documents continue to be in effect:
(i) any Restricted Subsidiary of the Borrower may be merged or
consolidated with or into: (A) the Borrower if the Borrower shall be
the continuing or surviving corporation or (B) any other Subsidiary
(so long as such surviving Subsidiary is either (x) a Credit Party
or (y) an Additional Credit Party);
88
<Page>
(ii) any Restricted Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or a Restricted
Subsidiary of the Borrower; and
(iii) any Unrestricted Subsidiary may be sold, liquidated, wound
up or dissolved, or may sell, lease, transfer or otherwise dispose
of any or all of its assets.
SECTION 6.5 ADVANCES, INVESTMENTS AND LOANS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
lend money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any Person except for Permitted Investments.
SECTION 6.6 TRANSACTIONS WITH AFFILIATES.
Except as expressly permitted by this Agreement, the Borrower will not,
nor will it permit any of its Subsidiaries to, directly or indirectly: (a) make
any investment in an Affiliate other than Permitted Investments; (b) transfer,
sell, lease, assign or otherwise dispose of any assets to an Affiliate other
than Permitted Investments; (c) merge into or consolidate with or purchase or
acquire assets from an Affiliate other than Permitted Acquisitions; or (d) enter
into any other transaction directly or indirectly with or for the benefit of an
Affiliate (including, without limitation, guarantees and assumptions of
obligations of an Affiliate); PROVIDED that (i) any Affiliate who is an
individual may serve as a director, officer or employee of the Borrower or any
of its Subsidiaries and receive reasonable compensation for his or her services
in such capacity and (ii) the Borrower and its Subsidiaries may enter into
transactions (other than extensions of credit by the Borrower or any of its
Subsidiaries to an Affiliate that are not Permitted Investments) if the monetary
or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Restricted Subsidiaries as the monetary or
business consideration that would be obtained in a comparable transaction with a
Person not an Affiliate.
SECTION 6.7 OWNERSHIP OF SUBSIDIARIES; RESTRICTIONS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
create, form or acquire any Subsidiaries, except for (a) wholly-owned Domestic
Subsidiaries which, if Material Subsidiaries and not a Receivables Financing
SPC, are joined as Additional Credit Parties in accordance with the terms
hereof, (b) other Domestic Subsidiaries which are Restricted Subsidiaries, or
(c) Foreign Subsidiaries. The Borrower will not, nor will it permit its
Restricted Subsidiaries to, sell, transfer, pledge or otherwise dispose of any
Capital Stock or other equity interests in any of its Restricted Subsidiaries,
nor will it permit any of its Restricted Subsidiaries to issue, sell, transfer,
pledge or otherwise dispose of any of its Capital Stock or other equity
interests, except in a transaction permitted by Section 6.4.
89
<Page>
SECTION 6.8 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS; MATERIAL CONTRACTS.
The Borrower will not, nor will it permit any of its Subsidiaries to,
change its fiscal year except in the event that any such change could not
reasonably be expected to have a Material Adverse Effect. The Borrower will not,
nor will it permit any Subsidiary to, amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or
bylaws (or other similar document) or its jurisdiction of incorporation in any
manner that could reasonably be expected to have a Material Adverse Effect
without the prior written consent of the Required Lenders. The Borrower will
not, nor will it permit any of its Subsidiaries to, without the prior written
consent of the Administrative Agent, amend, modify, cancel or terminate or fail
to renew or extend or permit the amendment, modification, cancellation or
termination of any of the Material Contracts, except in the event that such
amendments, modifications, cancellations or terminations could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.9 LIMITATION ON ACTIONS.
(a) The Borrower will not, nor will it permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability
of any such Person to (i) pay dividends or make any other distributions to
any Credit Party on its Capital Stock or with respect to any other interest
or participation in, or measured by, its profits, (ii) pay any Indebtedness
or other obligation owed to any Credit Party, (iii) make loans or advances
to any Credit Party, (iv) sell, lease or transfer any of its properties or
assets to any Credit Party, or (v) act as a Guarantor and pledge its assets
pursuant to the Credit Documents or any renewals, refinancings, exchanges,
refundings or extension thereof, except (in respect of any of the matters
referred to in clauses (i)-(v) above) for such encumbrances or restrictions
existing under or by reason of (A) this Agreement and the other Credit
Documents, (B) applicable law, (C) any document or instrument governing
Indebtedness incurred pursuant to Section 6.1(c), PROVIDED that any such
restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (D) customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
or assets pending such sale, provided such restrictions and conditions apply
only to the Subsidiary or assets that are to be sold and such sale is
permitted hereunder, (E) restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the assets securing such
Indebtedness, (F) customary provisions in leases and other contracts
restricting the assignment thereof, (G) restrictions contained in documents
executed in connection with any Permitted Receivables Financing, (H) any
Permitted Lien or any document or instrument governing any Permitted Lien,
PROVIDED that any such restriction contained therein relates only to the
asset or assets subject to such Permitted Lien, (I) restrictions or
conditions existing as a result of the issuance of preferred stock by a
Subsidiary pursuant to warrants outstanding as of the Funding Date for the
acquisition thereof, (J) any document or instrument governing the Senior
Notes as in effect on the Funding Date, and (K) any indenture agreement,
instrument or other arrangement relating
90
<Page>
to the assets or business of any Subsidiary and existing prior to the
consummation of the Permitted Acquisition in which such Subsidiary was
acquired.
(b) The Borrower will not, nor will it permit any Restricted
Subsidiary to, enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien
upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given
for some other obligation except (i) pursuant to this Agreement and the
other Credit Documents, (ii) pursuant to applicable law, (iii) pursuant to
any document or instrument governing Indebtedness incurred pursuant to
Section 6.1(c), PROVIDED that in the case of Section 6.1(c) any such
restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (iv) customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
or assets pending such sale, provided such restrictions and conditions apply
only to the Subsidiary or assets that are to be sold and such sale is
permitted hereunder, (v) restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the assets securing such
Indebtedness, (vi) restrictions or conditions as the result of the issuance
of preferred stock by a Subsidiary pursuant to warrants outstanding as of
the Funding Date for the acquisition thereof, (vii) customary provisions in
leases and other contracts restricting the assignment thereof, (viii)
pursuant to the documents executed in connection with any Permitted
Receivables Financing (but only to the extent that the related prohibitions
against other encumbrances pertain to the applicable Transferred Assets
actually sold, contributed, financed or otherwise conveyed or pledged
pursuant to such Permitted Receivables Financing), (ix) restrictions in any
document or instrument governing any Permitted Lien, provided that any such
restriction contained therein relates only to the asset or assets subject to
such Permitted Lien, (x) restrictions or conditions contained in any
document or instrument governing the Senior Notes as in effect on the
Funding Date, and (xi) any indenture agreement, instrument or other
arrangement relating to the assets or business of any Subsidiary and
existing prior to the consummation of the Permitted Acquisition in which
such Subsidiary was acquired.
SECTION 6.10 RESTRICTED PAYMENTS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the same
class of Capital Stock of such Person, (b) to make dividends or other
distributions payable to any Credit Party (directly or indirectly through
Subsidiaries), (c) to make dividends or repurchases on or before the Funding
Date in order to consummate the transactions contemplated by the Credit
Documents, Merger Documents and DFA Agreement, (d) to make dividends to or
repurchases from the Borrower or the holders of ownership interests of such
Subsidiary the proceeds of which shall be used to pay taxes that are then due
and payable, (e) in the case of a Receivables Financing SPC, to make Restricted
Payments to its owners to the extent of net income or other assets available
therefor under applicable law, and (f) to make other Restricted Payments;
provided, however (i) until such time as the Leverage Ratio of the Borrower as
of the end of the most recently ended fiscal quarter
91
<Page>
shall have been less than 3.00 to 1.0, such Restricted Payments shall not exceed
(A) $50,000,000 during any fiscal year plus (B) payments required to be made on
the subordinated debentures issued in connection with the TIPES and (ii) after
giving effect to such Restricted Payments on a Pro Forma Basis, no Default or
Event of Default shall have occurred and/or be continuing or be directly or
indirectly caused as a result thereof.
SECTION 6.11 PAYMENTS OF SUBORDINATED DEBT, ETC.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
after the issuance thereof, amend or modify (or permit the amendment or
modification of) any of the terms of any Subordinated Indebtedness in a manner
adverse to the interests of the Lenders (including specifically shortening the
final maturity or average life to maturity or requiring any payment to be made
sooner than originally scheduled or increase the interest rate or fees
applicable thereto or change any subordination provision thereof). The Borrower
will not, nor will it permit any Restricted Subsidiary to make any optional or
voluntary prepayment of Subordinated Indebtedness until the Credit Party
Obligations shall have been paid in full and the Commitments relating thereto
shall have been terminated.
SECTION 6.12 SALE LEASEBACKS.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
directly or indirectly, become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an operating lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired in excess of $50,000,000 in the aggregate on an annual basis,
(a) which the Borrower or any Subsidiary has sold or transferred or is to sell
or transfer to a Person which is not the Borrower or any Subsidiary or (b) which
the Borrower or any Subsidiary intends to use for substantially the same purpose
as any other property which has been sold or is to be sold or transferred by the
Borrower or any Subsidiary to another Person which is not the Borrower or any
Subsidiary in connection with such lease.
SECTION 6.13 USE OF PROCEEDS.
The Borrower will not use the proceeds of the Loans and Letters of
Credit in a manner inconsistent with the uses permitted under Section 3.11
hereof.
SECTION 6.14 SENIOR NOTES.
The Borrower will not, nor will it permit any of its Subsidiaries to,
make any prepayment of principal, interest or premium, if any, with respect to
the Senior Notes prior to the date upon which the Commitments have been
terminated and the Credit Party Obligations have been paid in full.
92
<Page>
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "EVENT OF DEFAULT"):
(a) The Borrower shall fail to pay any principal on any Note when
due in accordance with the terms thereof or hereof; or the Borrower shall
fail to reimburse the Issuing Lender for any LOC Obligations when due in
accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Note or any fee or other amount payable hereunder when due
in accordance with the terms thereof or hereof and such failure shall
continue unremedied for three (3) Business Days (or any Guarantor shall fail
to pay on the Guaranty in respect of any of the foregoing or in respect of
any other Guaranty Obligations thereunder); or
(b) Any representation or warranty made or deemed made herein, in
the Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement
furnished at any time under or in connection with this Agreement shall prove
to have been incorrect, false or misleading in any material respect on or as
of the date made or deemed made; or
(c) (i) Any Credit Party shall fail to perform, comply with or
observe any term, covenant or agreement applicable to it contained in
Sections 5.4(a), 5.7(a) or 5.9 or Article VI hereof; or (ii) any Credit
Party shall fail to comply with any other covenant, contained in this Credit
Agreement or the other Credit Documents or any other agreement, document or
instrument among any Credit Party, the Administrative Agent and the Lenders
or executed by any Credit Party in favor of the Administrative Agent or the
Lenders (other than as described in Sections 7.1(a) or 7.1(c)(i) above), and
in the event such breach or failure to comply is capable of cure, is not
cured within thirty (30) days of its occurrence; or
(d) The Borrower or any of its Restricted Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than the Notes) in a principal amount outstanding of at least
$50,000,000 in the aggregate for the Borrower and any of its Restricted
Subsidiaries beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness in a principal amount
outstanding of at least $50,000,000 in the aggregate for the Borrower and
its Restricted Subsidiaries or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such
93
<Page>
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity; or
(e) (i) The Borrower or any of its Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or the Borrower or any Restricted
Subsidiary shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any Restricted
Subsidiary any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any Restricted Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
Restricted Subsidiary shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or any Restricted
Subsidiary shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered against the
Borrower or any of its Restricted Subsidiaries involving in the aggregate a
liability (to the extent not paid when due or covered by insurance) of
$50,000,000 or more and all such judgments or decrees shall not have been
paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall
arise on the assets of the Borrower, any of its Restricted Subsidiaries or
any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a Trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower, any of its Restricted
Subsidiaries or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders
94
<Page>
is likely to, incur any liability in connection with a withdrawal from,
or the Insolvency or Reorganization of, any Multiemployer Plan or (vi) any
other similar event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
have a Material Adverse Effect; or
(h) A reasonable basis shall exist for the assertion against the
Borrower or any of its Subsidiaries, or any predecessor in interest of the
Borrower or any of its Subsidiaries, of (or there shall have been asserted
against the Borrower or any of its Subsidiaries) an Environmental Claim
that, in the judgment of the Required Lenders, is reasonably likely to be
determined adversely to the Borrower or any of its Subsidiaries, and the
amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is payable
by the Borrower or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy Persons
jointly and severally liable therefor); or
(i) A Change of Control shall occur; or
(j) The Guaranty or any provision thereof shall cease to be in full
force and effect or any Guarantor or any Person acting by or on behalf of
any Guarantor shall deny or disaffirm any Guarantor's obligations under the
Guaranty; or
(k) Any other Credit Document shall fail to be in full force and
effect or to give the Administrative Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be created
thereby (except as such documents may be terminated or no longer in force
and effect in accordance with the terms thereof, other than those
indemnities and provisions which by their terms shall survive).
SECTION 7.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, then, and in any such
event, (a) if such event is an Event of Default specified in Section 7.1(e)
above, automatically the Commitments shall immediately terminate and the Loans
(with accrued interest thereon), and all other amounts under the Credit
Documents (including without limitation the maximum amount of all contingent
liabilities under Letters of Credit) shall immediately become due and payable,
the Administrative Agent shall have the right to enforce any and all other
rights and interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies existing under the Security
Documents, all rights and remedies against a Guarantor and all rights of
set-off, and the Administrative Agent shall have the right to enforce any and
all other rights and remedies of a creditor under applicable law, and (b) if
such event is any other Event of Default, with the written consent of the
Required Lenders, the Administrative Agent may, or upon the written request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower
(a copy of which shall be sent to the Lenders), take any or all of the following
actions: (i) declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; (ii) declare the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
to be due and payable forthwith and direct the Borrower to
95
<Page>
pay to the Administrative Agent cash collateral as security for the LOC
Obligations for subsequent drawings under then outstanding Letters of Credit in
an amount equal to the maximum amount of which may be drawn under Letters of
Credit then outstanding, whereupon the same shall immediately become due and
payable; (iii) enforce any and all other rights and interests created and
existing under the Credit Documents, including, without limitation, all rights
and remedies existing under the Security Documents, all rights and remedies
against a Guarantor and all rights of set-off; and (iv) enforce any and all
rights and remedies of a creditor under applicable law. Except as expressly
provided above in this Section 7.2, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
ARTICLE VIII
THE AGENT
SECTION 8.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints First Union
National Bank as the Administrative Agent of such Lender under this Agreement,
and each such Lender irrevocably authorizes First Union National Bank, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
SECTION 8.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its
Affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.
SECTION 8.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
96
<Page>
the Lenders for any recitals, statements, representations or warranties made by
any Credit Party or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Credit Documents or for any failure of any Credit
Party to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance by the Credit Parties of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Credit Parties.
SECTION 8.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Credit Parties), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
any of the Credit Documents in accordance with a request of the Required Lenders
or all of the Lenders, as may be required under this Agreement, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
SECTION 8.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; PROVIDED, HOWEVER, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent that
this Credit Agreement
97
<Page>
expressly requires that such action be taken, or not taken, only with the
consent or upon the authorization of the Required Lenders, or all of the
Lenders, as the case may be.
SECTION 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representation or warranty to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Credit Parties, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Credit Parties which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 8.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; PROVIDED, HOWEVER, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Administrative Agent's gross negligence or
willful misconduct, as determined by a court of competent jurisdiction. The
agreements in this Section 8.7 shall survive the termination of this Agreement
and payment of the Notes and all other amounts payable hereunder.
98
<Page>
SECTION 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
SECTION 8.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 30
days' prior notice to the Borrower and the Lenders. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the Notes, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall be approved by the Borrower, so long as
no Default or Event of Default has occurred and is continuing, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Notes. If no successor Administrative Agent has accepted
appointment as Administrative Agent within sixty (60) days after the retiring
Administrative Agent's giving notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless become effective and the Lenders shall
perform all duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided for above. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 8.9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 8.10 RESPONSIBILITY OF OTHER AGENTS.
The Syndication Agent, the co-documentation agents and any other agents
designated as such on the signature pages hereto (other than the Administrative
Agent) shall have no responsibilities under this Agreement or the other Credit
Documents other than as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS, WAIVERS AND RELEASE OF COLLATERAL.
Neither this Agreement, nor any of the Notes, nor any of the other
Credit Documents, nor any terms hereof or thereof may be amended, supplemented,
waived or modified except in
99
<Page>
accordance with the provisions of this Section nor may be released except as
specifically provided herein or in the Security Documents or in accordance with
the provisions of this Section 9.1. The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from time
to time, (a) enter into with the Borrower written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of adding
any provisions to this Agreement or the other Credit Documents or changing in
any manner the rights of the Lenders or of the Borrower hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders may specify
in such instrument, any of the requirements of this Agreement or the other
Credit Documents or any Default or Event of Default and its consequences or (c)
release Collateral in accordance with the terms hereof or of any Security
Document or on such other terms and conditions as the Required Lenders may
agree; PROVIDED, HOWEVER, that no such waiver and no such amendment, waiver,
supplement, modification or release shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or Note or any installment thereon, or the reimbursement
obligations with respect to any Letters of Credit, or extend the
expiry of any Letter of Credit beyond the Maturity Date, or reduce
the stated rate of any interest or fee payable hereunder (other than
interest at the increased post-default rate) or extend the scheduled
date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the
written consent of each Lender directly affected thereby (it being
understood and agreed that changes to the financial definitions and
financial covenants herein shall only require the consent of the
Required Lenders and waivers of mandatory prepayments of the Loans
required pursuant to Section 2.8(b) hereof shall not constitute
increases in the Commitment of any Lender or extensions of the
scheduled date of any payments to any Lender); or
(ii) amend, modify or waive any provision of Section 2.13 or
this Section 9.1, or reduce the percentage specified in the
definition of Required Lenders, without the written consent of all
the Lenders; or
(iii) amend, modify or waive any provision of Article VIII
without the written consent of the then Administrative Agent; or
(iv) release all or any substantial portion of the Guarantors
from their obligations under the Guaranty without the written
consent of all of the Lenders; or
(v) release all or any substantial portion of the Collateral
without the written consent of all of the Lenders, or
(vi) amend, modify or waive the allocation of any payments or
the realization of proceeds of Collateral among the Revolving Loans,
the Tranche A Term Loans and/or the Tranche B Term Loans (or between
any two of such Loans), or the order of application of payments
specified in Section 2.8 without the consent
100
<Page>
of, if affected thereby, (i) Lenders holding greater than 50% of
the Revolving Committed Amount, (ii) Lenders holding greater than
50% of the outstanding Tranche A Term Loans and (iii) Lenders
holding greater than 50% of the outstanding Tranche B Term Loans.
(vii) amend, modify or waive the requirement that any issue be
resolved or determined with the consent, approval or upon the
request of the Required Lenders without the written consent of the
Required Lenders, or with the consent, approval or upon the request
of all Lenders, without the written consent of all of the Lenders to
the change of such voting requirement and, PROVIDED, FURTHER, that
no amendment, waiver or consent affecting the rights or duties of
the Administrative Agent or the Issuing Lender under any Credit
Document shall in any event be effective, unless in writing and
signed by the Administrative Agent and/or the Issuing Lender, as
applicable, in addition to the Lenders required hereinabove to take
such action.
Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Credit Parties, the Lenders, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrower, the other Credit Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of
the Credit Parties shall not be required for any amendment, modification or
waiver of the provisions of Article VIII (other than the provisions of Section
8.9); PROVIDED, HOWEVER, that the Administrative Agent will provide written
notice to the Borrower of any such amendment, modification or waiver. In
addition, the Borrower and the Lenders hereby authorize the Administrative Agent
to modify this Credit Agreement by unilaterally amending or supplementing
SCHEDULE 2.1(a) from time to time in the manner requested by the Borrower, the
Administrative Agent or any Lender in order to reflect any assignments or
transfers of the Loans as provided for hereunder; PROVIDED, HOWEVER, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
101
<Page>
SECTION 9.2 NOTICES.
Except as otherwise provided in Article II, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) when delivered by
hand, (b) when transmitted via telecopy (or other facsimile device) to the
number set out herein and the appropriate confirmation is received, (c) the day
following the day on which the same has been delivered prepaid or pursuant to an
invoice arrangement to a reputable national overnight air courier service, or
(d) on the earlier of receipt or the fifth Business Day following the day on
which the same is sent by certified or registered mail, postage prepaid, return
receipt requested, in each case, addressed as follows in the case of the
Borrower, the other Credit Parties and the Administrative Agent, and as set
forth on SCHEDULE 9.2 in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
The Borrower [Borrower/Name of Credit Party]
and the other c/o Suiza Foods Corporation
Credit Parties: 2515 McKinney Ave., Suite 1200
Dallas, Texas 75201
Attention: Treasurer
Telecopier: (214) 303-3499
Telephone: (214) 303-3400
The Administrative First Union National Bank
Agent: Charlotte Plaza, 23rd Floor
201 South College Street
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telecopier: (704) 383-0288
Telephone: (704) 374-2698
with a copy to:
First Union National Bank
One First Union Center, DC-5
Charlotte, North Carolina 28288-0737
Attention: Mr. Jorge Gonzalez
Telecopier: (704) 715-1117
Telephone: (704) 383-8461
SECTION 9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
102
<Page>
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and the
making of the Loans, PROVIDED that all such representations and warranties shall
terminate on the date upon which the Commitments have been terminated and all
amounts owing hereunder and under any Notes have been paid in full.
SECTION 9.5 PAYMENT OF EXPENSES AND TAXES.
The Credit Parties agree (a) to pay or reimburse the Administrative
Agent for all its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation, negotiation, printing and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the Lenders (including reasonable allocated costs of
in-house legal counsel), (c) on demand, to pay, indemnify, and hold each Lender
and the Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, the Credit Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and the Administrative Agent and their
Affiliates harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of the Credit
Documents and any such other documents and the use, or proposed use, of proceeds
of the Loans (all of the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); PROVIDED, HOWEVER, that the Borrower shall not have any
obligation hereunder to the Administrative Agent or any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the Administrative Agent or any such Lender, as determined by a court of
competent jurisdiction. The agreements in this Section 9.5 shall survive
repayment or assignment of the Loans, Notes and all other amounts payable
hereunder.
103
<Page>
SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING LENDERS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, all future holders of
the Notes and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under
this Agreement or the other Credit Documents without the prior written
consent of each Lender.
(b) Any Lender may, without notice to or consent of the Borrower and
the Administrative Agent, 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 entities ("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; (provided,
however, that no settlement date relating to any such sale shall occur prior
to the date which is one Business Day after the Funding Date). 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 to 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 Borrower 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. No Lender shall transfer or grant any participation under
which the Participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent
such amendment or waiver would (i) extend the scheduled maturity of any Loan
or Note, or extend the expiry date of any Letter of Credit in which such
Participant is participating beyond the Maturity Date, or any installment
thereon in which such Participant is participating, or reduce the stated
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of interest at the increased post-default rate) or
reduce the principal amount thereof, or increase the amount of the
Participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an increase
in any Commitment or Loan shall be permitted without consent of any
Participant if the Participant's participation is not increased as a result
thereof), (ii) release all or substantially all of the Guarantors from their
obligations under the Guaranty, (iii) release all or substantially all of
the Collateral, or (iv) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement other
than in accordance with this Agreement. In the case of any such
participation, the Participant shall not have any rights under this
Agreement or any of the other Credit Documents (the Participant's rights
against such Lender in respect of such participation to be those set forth
in the agreement executed by such Lender in favor of the Participant
relating thereto) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation; PROVIDED that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16,
2.17, 2.18, 2.19 and 9.5 with respect to its participation in the
Commitments and the Loans outstanding from time to time, but no Participant
shall be entitled to receive any greater amount pursuant to such Sections
than
104
<Page>
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.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time after the Funding Date, sell or
assign to any Lender, any Affiliate of a Lender or in the case of the
Tranche A Term Loan or the Tranche B Term Loan, any special purpose entity
created thereby (including, without limitation, any entity which is engaged
in investing in bank loans and is administered by a Lender or an Affiliate
of a Lender) or an Approved Fund and with the consent of the Administrative
Agent (provided, however, that no settlement date relating to such sale or
assignment shall occur prior to the date which is one Business Day after the
Funding Date) and, so long as no Event of Default has occurred and is
continuing, the Borrower (in each case, which consent shall not be
unreasonably withheld or delayed), to one or more additional banks, funds or
other financial institutions ("PURCHASING LENDERS"), all or any part of its
rights and obligations under this Agreement and the Notes in minimum amounts
of (x) $5,000,000 with respect to its Revolving Commitment and its Revolving
Loans or (y) $1,000,000 with respect to its Tranche A Term Loan or Tranche B
Term Loan (or, if less, the entire amount of such Lender's obligations or
such lesser amount agreed to by the Borrower and the Administrative Agent),
pursuant to a Commitment Transfer Supplement, executed by such Purchasing
Lender and such transferor Lender (and, in the case of a Purchasing Lender
that is not then a Lender or an affiliate thereof, the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower), and delivered to the Administrative Agent for its acceptance and
recording in the Register; PROVIDED, HOWEVER, that any sale or assignment to
an existing Lender, an Affiliate of a Lender or in the case of the Tranche A
Term Loan or the Tranche B Term Loan, a special purpose entity created
thereby or an Approved Fund shall not require the consent of the
Administrative Agent or the Borrower nor shall any such sale or assignment
be subject to the minimum assignment amounts specified herein. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Commitment Transfer Supplement, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the transferor Lender thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its obligations under
this Agreement (and, in the case of a Commitment Transfer Supplement
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). Such Commitment Transfer Supplement 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 Percentages arising from the purchase by such Purchasing Lender
of all or a portion of the rights and obligations of such transferor Lender
under this Agreement and the Notes. On or prior to the Transfer Effective
Date specified in such Commitment Transfer Supplement, the Borrower, at its
own expense, and to the extent requested by the Purchasing Lender shall
execute and deliver to the Administrative Agent in exchange for the Notes
delivered to the
105
<Page>
Administrative Agent pursuant to such Commitment Transfer Supplement
new Notes to the order of such Purchasing Lender in an amount equal to the
Commitment assumed by it pursuant to such Commitment Transfer Supplement
and, unless the transferor Lender has not retained a Commitment hereunder,
new Notes to the order of the transferor Lender in an amount equal to the
Commitment retained by it hereunder. Such new Notes shall be dated the
Closing Date 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 Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.2 a copy of each Commitment Transfer Supplement delivered to
it and a register (the "REGISTER") for the recordation of the names and
addresses of the Lenders and the Commitment 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 manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment Transfer
Supplement, together with payment to the Administrative Agent by the
transferor Lender or the Purchasing Lender, as agreed between them, of a
registration and processing fee of $3,500 for each Purchasing Lender listed
in such Commitment Transfer Supplement and the Notes subject to such
Commitment Transfer Supplement, the Administrative Agent shall (i) accept
such Commitment Transfer Supplement, (ii) record the information contained
therein in the Register and (iii) give prompt notice of such acceptance and
recordation to the Lenders and the Borrower.
(f) The Credit Parties authorize 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 Credit Parties, their Subsidiaries and their Affiliates which
has been delivered to such Lender by or on behalf of the Credit Parties
pursuant to this Agreement or which has been delivered to such Lender by or
on behalf of the Credit Parties in connection with such Lender's credit
evaluation of the Credit Parties and their Affiliates prior to becoming a
party to this Agreement, in each case subject to Section 9.15.
(g) At the time of each assignment pursuant to this Section 9.6 to a
Person which is not already a Lender hereunder and which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate
Internal Revenue Service Forms (and, if applicable, a 2.19 Certificate)
described in Section 2.19.
106
<Page>
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Agreement (including, without
limitation, any right to payment of principal and interest under any Note)
to any creditor or representative of creditors including any assignment to
any Federal Reserve Bank in accordance with applicable laws. In the case of
any Lender that is a fund that invests in bank loans, such Lender may,
without the consent of the Borrower or Administrative Agent, assign or
pledge all or any portion of its Tranche A Term Note or its Tranche B Term
Note or any other instrument evidencing its rights as a Lender under the
Tranche A Term Loan or Tranche B Term Loan under this Agreement to any
trustee for, or any other representative of, holders of obligations owed or
securities issued, by such fund, as security for such obligations or
securities; PROVIDED that any foreclosure or similar action by such trustee
or representative shall be subject to the provisions of this Section 9.6
concerning assignments.
SECTION 9.7 ADJUSTMENTS; SET-OFF.
(a) Each Lender agrees that if any Lender (a "BENEFITED LENDER")
shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings
of the nature referred to in Section 7.1(e), or otherwise) in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest
thereon, such benefited Lender shall promptly notify the Administrative
Agent thereof, and purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees
that each Lender so purchasing a portion of another Lender's Loans 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.
(b) In addition to any rights and remedies of the Lenders provided
by law (including, without limitation, other rights of set-off), each Lender
shall have the right, without prior notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable
law, upon the occurrence of any Event of Default, to setoff and appropriate
and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing by
such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower, or any part thereof in such amounts as such Lender
may elect, against and on account of the obligations and liabilities of the
Borrower to such Lender hereunder and claims of every nature and description
of such Lender against the Borrower, in any currency, whether arising
107
<Page>
hereunder, under the Notes or under any documents contemplated by or
referred to herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The aforesaid right
of set-off may be exercised by such Lender against the Borrower or against
any trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower or
any such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have
been exercised by such Lender prior to the occurrence of any Event of
Default. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such
Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 9.8 TABLE OF CONTENTS AND SECTION HEADINGS.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this
Agreement.
SECTION 9.9 COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.
SECTION 9.10 EFFECTIVENESS.
This Credit Agreement shall become effective on the date on which all
of the parties have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Administrative Agent pursuant to
SECTION 9.2 or, in the case of the Lenders, shall have given to the
Administrative Agent written, telecopied or telex notice (actually received) at
such office that the same has been signed and mailed to it.
SECTION 9.11 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
108
<Page>
SECTION 9.12 INTEGRATION.
This Agreement, the Notes and the other Credit Documents represent the
entire agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent, the Borrower or any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the Notes or the other Credit Documents.
SECTION 9.13 GOVERNING LAW.
This Agreement and the Notes and the rights and obligations of the parties
under this Agreement and the Notes shall be governed by, and construed and
interpreted in accordance with, the law of the State of North Carolina (without
giving effect to the principles thereof relating to conflict of laws).
SECTION 9.14 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Agreement, any Note or any of the other Credit
Documents may be brought in any state or federal court of competent jurisdiction
in the State of North Carolina, and, by execution and delivery of this
Agreement, each of the Borrower and the other Credit Parties accepts, for itself
and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Agreement
from which no appeal has been taken or is available. Each of the Borrower and
the other Credit Parties irrevocably agrees that all service of process in any
such proceedings in any such court may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to it at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto, such service being hereby acknowledged by each of the Borrower and the
other Credit Parties to be effective and binding service in every respect. To
the fullest extent it may legally and effectively do so, each of the Borrower,
the other Credit Parties, the Administrative Agent and the Lenders irrevocably
waives any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens which it may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any Lender to bring
proceedings against the Borrower or the other Credit Parties in the court of any
other jurisdiction.
SECTION 9.15 CONFIDENTIALITY.
The Administrative Agent and each of the Lenders agrees that it will use its
best efforts not to disclose without the prior consent of the Borrower (other
than to its employees, affiliates, auditors or counsel or to another Lender) any
information with respect to the Borrower and its Subsidiaries which is furnished
pursuant to this Agreement, any other Credit Document or any documents
contemplated by or referred to herein or therein and which is designated by the
Borrower to the Lenders in writing as confidential or as to which it is
otherwise reasonably clear
109
<Page>
such information is not public, except that any Lender may disclose any such
information (a) as has become generally available to the public other than by a
breach of this Section 9.15, (b) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or federal
regulatory body having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance Corporation or the
Office of the Comptroller of the Currency ("OCC") or the National Association of
Insurance Commissioners ("NAIC") or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in response to any summons or subpoena or any law, order, regulation or ruling
applicable to such Lender, after notice to the Borrower and opportunity to
object to such disclosure to the extent reasonably practicable, (d) to any
direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty's professional advisor), so
long as such contractual counterparty (or such professional advisor) agrees to
be bound by the provisions of this Section 9.15, (e) to any prospective
Participant or assignee in connection with any contemplated transfer pursuant to
Section 9.6, PROVIDED that such prospective transferee shall have been made
aware of this Section 9.15 and shall have agreed to be bound by its provisions
as if it were a party to this Agreement or (f) to GOLD SHEETS and other similar
bank trade publications; such information to consist of deal terms and other
information regarding the credit facilities evidenced by this Credit Agreement
customarily found in such publications.
SECTION 9.16 ACKNOWLEDGMENTS.
The Borrower and the other Credit Parties each hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Credit
Party arising out of or in connection with this Agreement and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower and the other Credit Parties, on the other hand, in connection
herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrower
or the other Credit Parties and the Lenders.
SECTION 9.17 WAIVERS OF JURY TRIAL.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. The
parties hereto agree that they shall not have a remedy of punitive or exemplary
damages against the other in any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement and
other Credit Documents ("Disputes"), and hereby waive any
110
<Page>
right or claim to punitive or exemplary damages they have now or which may arise
in the future in connection with any Dispute.
ARTICLE X
GUARANTY
Each of the Guarantors hereby agrees as follows:
SECTION 10.1 THE GUARANTY.
In order to induce the Lenders to enter into this Agreement and to extend
credit hereunder and in recognition of the direct benefits to be received by the
Guarantors from the Extensions of Credit hereunder, each of the Guarantors
hereby agrees with the Administrative Agent and the Lenders as follows: each
Guarantor hereby unconditionally and irrevocably jointly and severally
guarantees as primary obligor and not merely as surety the full and prompt
payment when due, whether upon maturity, by acceleration or otherwise, of any
and all indebtedness of the Borrower to the Administrative Agent and the
Lenders. If any or all of the indebtedness of the Borrower to the Administrative
Agent and the Lenders becomes due and payable hereunder, each Guarantor
unconditionally promises to pay such indebtedness to the Administrative Agent
and the Lenders, on order, on demand, together with any and all reasonable
expenses which may be incurred by the Administrative Agent or the Lenders in
collecting any of the indebtedness. The word "indebtedness" is used in this
Article X in its most comprehensive sense and includes any and all advances,
debts, obligations and liabilities of the Borrower arising in connection with
this Agreement, including, without limitation, Hedging Agreements with any
Lender permitted hereunder, in each case, heretofore, now, or hereafter made,
incurred or created, whether voluntarily or involuntarily, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether or
not such indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
SECTION 10.2 BANKRUPTCY.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all indebtedness of the
Borrower to the Lenders whether or not due or payable by the Borrower upon the
occurrence of any of the events specified in
111
<Page>
Section 7.1(e), and unconditionally promises to pay such indebtedness to the
Administrative Agent for the account of the Lenders, or order, on demand, in
lawful money of the United States. Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent or any Lender, which
payment or transfer or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, or otherwise is avoided, and/or required to be
repaid to the Borrower or a Guarantor, the estate of the Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made.
SECTION 10.3 NATURE OF LIABILITY.
The liability of each Guarantor hereunder is exclusive and independent of
any security for or other guaranty of the indebtedness of the Borrower whether
executed by any such Guarantor, any other guarantor or by any other party, and
no Guarantor's liability hereunder shall be affected or impaired by (a) any
direction as to application of payment by the Borrower or by any other party, or
(b) any other continuing or other guaranty, undertaking or maximum liability of
a guarantor or of any other party as to the indebtedness of the Borrower, or (c)
any payment on or in reduction of any such other guaranty or undertaking, or (d)
any dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (e) any payment made to the Administrative Agent or the Lenders on
the indebtedness which the Administrative Agent or such Lenders repay the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each of the Guarantors waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding. The obligations of the Guarantors hereunder are absolute
and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Credit Documents, any Hedging Agreement entered
into in connection with this Agreement, or any other agreement or instrument
referred to therein, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or a guarantor.
SECTION 10.4 INDEPENDENT OBLIGATION.
The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other Guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
SECTION 10.5 AUTHORIZATION.
Each of the Guarantors authorizes the Administrative Agent and each Lender
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to (a) renew, compromise, extend, increase, accelerate or
otherwise change the time for payment of, or
112
<Page>
otherwise change the terms of the indebtedness or any part thereof in accordance
with this Agreement, including any increase or decrease of the rate of interest
thereon, (b) take and hold security from any Guarantor or any other party for
the payment of this Guaranty or the indebtedness and exchange, enforce, waive
and release any such security, (c) apply such security and direct the order or
manner of sale thereof as the Administrative Agent and the Lenders in their
discretion may determine and (d) release or substitute any one or more
endorsers, guarantors, the Borrower or other obligors.
SECTION 10.6 RELIANCE.
It is not necessary for the Administrative Agent or the Lenders to inquire
into the capacity or powers of the Borrower or the officers, directors, partners
or agents acting or purporting to act on their behalf, and any indebtedness made
or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
SECTION 10.7 WAIVER.
(a) Each of the Guarantors waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent or any Lender to (i) proceed against the Borrower, any
other Guarantor or any other party, (ii) proceed against or exhaust any
security held from the Borrower, any other Guarantor or any other party, or
(iii) pursue any other remedy in the Administrative Agent's or any Lender's
power whatsoever. Each of the Guarantors waives any defense based on or
arising out of any defense of the Borrower, any other Guarantor or any other
party other than payment in full of the indebtedness, including without
limitation any defense based on or arising out of the disability of the
Borrower, any other Guarantor or any other party, or the unenforceability of
the indebtedness or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full of the
indebtedness. Without limiting the generality of the provisions of this
Article X, each of the Guarantors hereby specifically waives the benefits of
N.C. Gen. Stat. ss. 26-7 through 26-9, inclusive. The Administrative Agent
or any of the Lenders may, at their election, foreclose on any security held
by the Administrative Agent or a Lender by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
Lender may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the indebtedness has been paid. Each of the
Guarantors waives any defense arising out of any such election by the
Administrative Agent and each of the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or subrogation
or other right or remedy of the Guarantors against the Borrower or any other
party or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional
113
<Page>
indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of each of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment
of the indebtedness and the nature, scope and extent of the risks which such
Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender shall have any duty to advise such
Guarantor of information known to it regarding such circumstances or risks.
(c) Each of the Guarantors hereby agrees it will not exercise any
rights of subrogation which it may at any time otherwise have as a result of
this Guaranty (whether contractual, under Section 509 of the U.S. Bankruptcy
Code, or otherwise) to the claims of the Lenders against the Borrower or any
other guarantor of the indebtedness of the Borrower owing to the Lenders
(collectively, the "OTHER PARTIES") and all contractual, statutory or common
law rights of reimbursement, contribution or indemnity from any Other Party
which it may at any time otherwise have as a result of this Guaranty until
such time as the Loans hereunder shall have been paid and the Commitments
have been terminated. Each of the Guarantors hereby further agrees not to
exercise any right to enforce any other remedy which the Administrative
Agent and the Lenders now have or may hereafter have against any Other
Party, any endorser or any other guarantor of all or any part of the
indebtedness of the Borrower and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit of
the Lenders to secure payment of the indebtedness of the Borrower until such
time as the Loans hereunder shall have been paid and the Commitments have
been terminated.
SECTION 10.8 LIMITATION ON ENFORCEMENT.
The Lenders agree that this Guaranty may be enforced only by the action
of the Administrative Agent acting upon the instructions of the Required Lenders
and that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders upon the terms of this Agreement. The Lenders further agree that this
Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
SECTION 10.9 CONFIRMATION OF PAYMENT.
The Administrative Agent and the Lenders will, upon request after
payment of the indebtedness and obligations which are the subject of this
Guaranty and termination of the commitments relating thereto, confirm to the
Borrower, the Guarantors or any other Person that such indebtedness and
obligations have been paid and the commitments relating thereto terminated,
subject to the provisions of Section 10.2.
114
<Page>
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be duly executed and delivered by its proper and duly authorized officers
as of the day and year first above written.
BORROWER: SUIZA FOODS CORPORATION,
a Delaware corporation
By: /s/ Cory M. Olson
---------------------------------
Name: Cory M. Olson
Title: VP / Treasurer
BANK ONE, N.A., in its capacity as
Syndication Agent and individually in its
capacity as a Lender
By: /s/ Kathy Turner
---------------------------------
Name: Kathy Turner
Title: Director
SUNTRUST BANK
By: /s/ Kurt A. Morris
---------------------------------
Name: Kurt A. Morris
Title: Director
HARRIS TRUST AND SAVINGS BANK
By: /s/ Michael L. Lauree
---------------------------------
Name: Michael L. Lauree
Title: Vice President
FLEET BANK, N.A.
By: /s/ Marwan Isbaih
---------------------------------
Name: Marwan Isbaih
Title: Director
<Page>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Robert M. Mandula
-----------------------------------
Name: Robert M. Mandula
Title: Executive Director
By: /s/ Edward J. Peyser
-----------------------------------
Name: Edward J. Peyser
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. ASHBY
-----------------------------------
Name: F. C. H. ASHBY
Title: Sr. Manager Loan Operations
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Sean Mounier /s/ Brian O'Leary
-----------------------------------
Name: Sean Mounier Brian O'Leary
Title: First Vice Vice President
President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
-----------------------------------
Name: Attila Koc
Title: Senior Vice President
BNP PARIBAS
By: /s/ Tom H. Ambrose
-----------------------------------
Name: Tom H. Ambrose
Title: Director
By: /s/ Christine Howatt
-----------------------------------
Name: Christine Howatt
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: Walter R. Wolff
-----------------------------------
Name: Walter R. Wolff
Title: Joint General Manager and Group
Head
<Page>
ABN AMRO BANK N.V.
By: /s/ Ellen M. Coleman /s/ Delia B. Fance
----------------------------------------
Name: Ellen M. Coleman Delia B. Fance
Title: Group Vice Group Vice
President President
BANCO POPULAR DE PUERTO RICO
By: /s/ Patrick J. Grady
----------------------------------------
Name: Patrick J. Grady
Title: Vice President
BANCO POPULAR NORTH AMERICA
By: /s/ Ronald B. Goldberg
----------------------------------------
Name: Ronald B. Goldberg
Title: Vice President
WELLS FARGO BANK
By: /s/ Austin D. Nettle
----------------------------------------
Name: Austin D. Nettle
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Bradley C. Peterson
----------------------------------------
Name: Bradley C. Peterson
Title: First Vice President
By: /s/ Theodore D. Tice
----------------------------------------
Name: Theodore D. Tice
Title: Vice President
Senior Relationship Manager
ABBEY NATIONAL TREASURY SERVICES PLC
By: /s/ Ian Richardson
----------------------------------------
Name: Ian Richardson
Title: Manager, Acquisition Finance
<Page>
GUARANTY BANK
By: /s/ Michael Ansolabehere
--------------------------------------
Name: Michael Ansolabehere
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ B. Wuthrich
--------------------------------------
Name: B. Wuthrich
Title: Vice President
US BANK NATIONAL ASSOCIATION
By: /s/ John Ball
--------------------------------------
Name: John Ball
Title: Vice President
CITIBANK, N.A.
By: /s/ Danilo J. Ondina
--------------------------------------
Name: Danilo J. Ondina
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK, AG,
NEW YORK BRANCH
By: /s/ Francesco Ossino
--------------------------------------
Name: Francesco Ossino
Title: Director
By: /s/ David M. Harnisch
--------------------------------------
Name: David M. Harnisch
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ D. Barnell /s/ J. Mearns
--------------------------------------
Name: D. Barnell J. Mearns
Title: Vice President VP & Manager
<Page>
THE BANK OF NEW YORK
By: /s/ David Sunderwirth
--------------------------------------
Name: David Sunderwirth
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Tracy J. Toulouse
--------------------------------------
Name: Tracy J. Toulouse
Title: Vice President
AGSTAR FINANCIAL SERVICES, PCA
DBA FCS-COMMERCIAL FINANCE GROUP
By: /s/ James M. Grafing
--------------------------------------
Name: James M. Grafing
Title: SVP-Syndicated Finance
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ W. Jerome McDermott
--------------------------------------
Name: W. Jerome McDermott
Title: Duly Authorized Signatory
THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND
By: /s/ Martina Maher
--------------------------------------
Name: Martina Maher
Title: Authorised Signatory
By: /s/ Maurice Fitzgerald
--------------------------------------
Name: Maurice Fitzgerald
Title: Authorised Signatory
CHANG HWA COMMERICAL BANK, LTD.,
NEW YORK BRANCH
By: /s/ Ming-Hsien Lin
--------------------------------------
Name: Ming-Hsien Lin
Title: VP & General Manager
<Page>
OAK BROOK BANK
By: /s/ Henry Wessel
--------------------------------------
Name: Henry Wessel
Title: Vice President
RZB FINANCE LLC
By: /s/ Astrid Wilke
--------------------------------------
Name: Astrid Wilke
Title: Vice President
By: /s/ Pearl Geffers
--------------------------------------
Name: Pearl Geffers
Title: First Vice President
WEBSTER BANK
By: /s/ John Gilsenan
--------------------------------------
Name: John Gilsenan
Title: Vice President
FIRSTRUST BANK
By: /s/ Kent Nelson
--------------------------------------
Name: Kent Nelson
Title: Vice President
IKB CAPITAL CORPORATION
By: /s/ David N. Snyder
--------------------------------------
Name: David N. Snyder
Title: President
THE PROVIDENT BANK
By: /s/ Christopher B. Gribble
--------------------------------------
Name: Christopher B. Gribble
Title: Vice President
<Page>
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ James R. Dingler
----------------------------------------
Name: James R. Dingler
Title: Director
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By: /s/ Anthony Heyman
----------------------------------------
Anthony Heyman
(AUTHORIZED SIGNATORY)
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Anthony Heyman
----------------------------------------
Anthony Heyman
(AUTHORIZED SIGNATORY)
SENIOR HIGH INCOME PORTFOLIO, INC.
By: /s/ Anthony Heyman
----------------------------------------
Anthony Heyman
(AUTHORIZED SIGNATORY)
DEBT STRATEGIES FUND, INC.
By: /s/ Anthony Heyman
----------------------------------------
Anthony Heyman
(AUTHORIZED SIGNATORY)
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Stacey Malek
----------------------------------------
Name: Stacey Malek
Title: Vice President
<Page>
FREMONT INVESTMENT & LOAN
By: /s/ Randolph M. Ross
----------------------------------------
Name: Randolph M. Ross
Title: Vice President - Senior Portfolio
Manager
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ Jon C. Heiny
----------------------------------------
Name: Jon C. Heiny
Title: Counsel
By: /s/ Elizabeth D. Swanson
----------------------------------------
Name: Elizabeth D. Swanson
Title: Counsel
SCUDDER FLOATING RATE FUND
By: /s/ Kenneth Weber
----------------------------------------
Name: Kenneth Weber
Title: Senior Vice President
PPM SPYGLASS FUNDING TRUST
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
RIVIERA FUNDING LLC
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Asst. Vice President
PINEHURST TRADING, INC.
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Asst. Vice President
<Page>
MUIRFIELD TRADING LLC
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Asst. Vice President
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
STANWICH LOAN FUNDING LLC
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Asst. Vice President
WINGED FOOT FUNDING TRUST
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
JUPITER FUNDING TRUST
By: /s/ Ann E. Morris
----------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By: /s/ Stephen A. Stratico
----------------------------------------
Name: Stephen A. Stratico
Title: Vice President
<Page>
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: New York Life Investment Management
LLC, its Investment Manager
By: /s/ F. David Melka
----------------------------------------
Name: F. David Melka
Title: Second Vice President
NEW YORK LIFE INSURANCE COMPANY
By: /s/ F. David Melka
----------------------------------------
Name: F. David Melka
Title: Investment Vice President
KZH CRESCENT LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH CRESCENT-2 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH CRESCENT-3 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
<Page>
KZH SHOSONE LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH CNC LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-1 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
<Page>
KZH CYPRESSTREE-1 LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Susan Lee
----------------------------------------
Name: Susan Lee
Title: Authorized Agent
OPPENHEIMER SENIOR FLOATING RATE FUND
By: /s/ David Mabry
----------------------------------------
Name: David Mabry
Title: Vice President
AGENTS AND LENDERS: FIRST UNION NATIONAL BANK
in its capacity as Administrative Agent and
individually in its capacity as a Lender
By: /s/ Jorge A. Gonzalez
----------------------------------------
Name: Jorge A. Gonzalez
Title: Senior Vice President