EXECUTION COPY
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SUIZA FOODS CORPORATION
_____________________________
SECOND AMENDED AND RESTATED
SUPPLEMENTAL CREDIT AGREEMENT
$500,000,000 of $700,000,000 Aggregate Credit Facility
Dated as of July 31, 1997
------------------------------
FIRST UNION NATIONAL BANK,
as Administrative Agent
BHF-BANK AKTIENGESELLSCHAFT (NEW YORK)
BANK BOSTON, N.A.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEEN BANK B.A.,
"RABOBANK NEDERLAND"
CREDIT LYONNAIS
FLEET NATIONAL BANK
MERRILL LYNCH ASSET MANAGEMENT, INC.,
as Co-Agents
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . .2
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . .2
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . 27
1.03 Classes and Types of Loans. . . . . . . . . . . . . . . . . . . . 28
Section 2. Commitments, Loans, Notes and Prepayments. . . . . . . . . . . . 28
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.02 Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.03 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . 30
2.04 Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.05 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.06 Several Obligations; Remedies Independent . . . . . . . . . . . . 32
2.07 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.08 Optional Prepayments and Conversions or Continuations of Loans. . 34
2.09 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 34
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . . . 37
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . 37
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . . . 39
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . 40
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.06 Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . 42
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 43
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . . . 45
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . 45
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . 48
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . 49
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.06 Net Payments; Taxes . . . . . . . . . . . . . . . . . . . . . . . 51
5.07 Replacement of Lenders. . . . . . . . . . . . . . . . . . . . . . 53
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 54
6.01 Conditions to Effectiveness . . . . . . . . . . . . . . . . . . . 54
(i)
Page
6.02 Conditions Precedent to Lending for Permitted Acquisitions. . . . 57
6.03 Conditions to all . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . 64
7.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 64
7.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 64
7.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 67
7.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 67
7.12 Material Agreements and Liens . . . . . . . . . . . . . . . . . . 67
7.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 68
7.14 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.15 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 71
7.16 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.17 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 72
7.18 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.19 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . . . 73
8.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . 74
8.02 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.03 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 77
8.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8.05 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . 81
8.06 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . 83
8.07 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.08 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.09 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . 86
8.10 Leverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.11 Minimum Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 87
8.12 Fixed Charges Ratio . . . . . . . . . . . . . . . . . . . . . . . 87
8.13 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . 88
8.14 [Intentionally left blank]. . . . . . . . . . . . . . . . . . . . 88
8.15 Interest Rate Protection Agreements . . . . . . . . . . . . . . . 88
8.16 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . 88
8.17 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 88
8.18 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.19 Certain Obligations Respecting Subsidiaries; Additional
Mortgaged Properties . . . . . . . . . . . . . . . . . . . . . . 89
8.20 Modifications of Certain Documents. . . . . . . . . . . . . . . . 90
8.21 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . 91
8.22 Puerto Rico Security Documents. . . . . . . . . . . . . . . . . . 91
(ii)
Page
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10. The Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.01 Appointment, Powers and Immunities. . . . . . . . . . . . . . . . 95
10.02 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . 96
10.03 Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.04 Rights as a Lender. . . . . . . . . . . . . . . . . . . . . . . . 97
10.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 97
10.06 Non-Reliance on Agent and Other Lenders . . . . . . . . . . . . . 98
10.07 Failure to Act. . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.08 Resignation or Removal of Agent . . . . . . . . . . . . . . . . . 99
10.09 Agency Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.10 Consents under Other Loan Documents . . . . . . . . . . . . . . .100
10.11 Syndication Agent . . . . . . . . . . . . . . . . . . . . . . . .100
Section 11. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . .100
11.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
11.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . .101
11.04 Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . . . . .103
11.05 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . .103
11.06 Assignments and Participations. . . . . . . . . . . . . . . . . .104
11.07 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
11.08 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
11.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .107
11.10 Governing Law; Submission to Jurisdiction; Service of Process
and Venue . . . . . . . . . . . . . . . . . . . . . . . . . . .108
11.11 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . .109
11.12 Treatment of Certain Information; Confidentiality . . . . . . . .109
11.13 Intention of Parties. . . . . . . . . . . . . . . . . . . . . . .110
(iii)
SCHEDULE I - Existing Material Agreements and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Real Property
SCHEDULE V - Litigation
SCHEDULE VI - Existing Puerto Rico Security Documents
SCHEDULE VII - Existing Mortgages
EXHIBIT A-1 - Form of Facility C Note
EXHIBIT A-2 - Form of Facility D Note
EXHIBIT B - Form of Supplemental Subsidiary Guarantee
and Security Agreement
EXHIBIT C - Form of Mortgage
EXHIBIT D - Form of Deed of Trust
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Opinion of Puerto Rico Counsel to the
Obligors
EXHIBIT F - Form of Opinion of Local Counsel
EXHIBIT G - Form of Opinion of Special New York Counsel
to First Union
EXHIBIT H - Form of Confidentiality Agreement
EXHIBIT I - Form of Assignment and Acceptance
EXHIBIT J-1 - Form of Notice of Borrowing
EXHIBIT J-2 - Form of Notice of Prepayment
EXHIBIT J-3 - Form of Notice of Conversion/Continuation
EXHIBIT J-4 - Form of Notice of Account Designation
(iv)
SECOND AMENDED AND RESTATED SUPPLEMENTAL CREDIT AGREEMENT dated as of
July 31, 1997 between: SUIZA FOODS CORPORATION, a corporation duly organized
and validly existing under the laws of the State of Delaware (the "COMPANY");
each of the lenders that is a signatory hereto identified under the caption
"LENDERS" on the signature pages hereto or that, pursuant to Section 11.06(b)
hereof, shall become a "Lender" hereunder (individually, a "LENDER" and
collectively, the "LENDERS"); and First Union National Bank (formerly First
Union National Bank of North Carolina), a national banking association, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "AGENT").
WHEREAS, the Company, certain of the Lenders and the Agent are party
to a Third Amended and Restated Credit Agreement dated of even date herewith (as
modified and supplemented and in effect from time to time, the "EXISTING CREDIT
AGREEMENT"), providing, subject to the terms thereof, for extensions of credit
(by making of loans and issuing letters of credit) to be made by the Lenders
party thereto, to the Company in an aggregate principal or face amount not
exceeding $200,000,000.
WHEREAS, the Company, certain Lenders and the Agent are party to an
Amended and Restated Supplemental Credit Agreement, dated as of March 5, 1997
(as heretofore modified and supplemented and in effect immediately prior to the
Effective Date referred to below, the "EXISTING SUPPLEMENTAL CREDIT AGREEMENT")
(which Existing Supplemental Credit Agreement in turn amended and restated a
Supplemental Credit Agreement, dated as of September 6, 1996, as amended by
Amendment No. 1 dated as of December 2, 1996), providing, subject to the terms
and conditions thereof, for a $100,000,000 revolving credit facility for the
purpose of providing financing for the acquisition by the Company or its
Subsidiaries from time to time of assets, business or capital stock of certain
Persons and related fees, commissions and expenses.
WHEREAS, the parties hereto now wish to amend and restate the Existing
Supplemental Credit Agreement by, among other things, increasing the aggregate
amount of the Facility C Commitments thereunder from $100,000,000 to
$325,000,000 and extending the maturity thereof, adding a new facility thereto
providing for term loans in an aggregate principal amount not to exceed
$175,000,000 and amending certain of the other provisions thereof, and in that
connection, wish to amend and restate the Existing Supplemental Credit Agreement
in its entirety.
WHEREAS, each of the Obligors (as hereinafter defined) expects to
derive benefit, directly or indirectly, from the loans so made to the Company,
both in its separate capacity and as a member of the integrated group, since the
successful operation of
CREDIT AGREEMENT
-2-
each of the Company and its Subsidiaries is dependent on the continued
successful performance of the functions of the integrated group as a whole.
Accordingly, the parties hereto hereby agree that the Existing
Supplemental Credit Agreement shall, as of the Effective Date (the occurrence of
which is subject to the satisfaction of the conditions precedent specified in
Section 6.01 hereof), be amended and restated in its entirety as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"ADDITIONAL PUERTO RICO SECURITY DOCUMENTS" shall have the meaning
assigned to such term in Section 8.21 hereof.
"AFFILIATE" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company
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 Company or any of its Subsidiaries and
(b) none of the Wholly Owned Subsidiaries of the Company shall be Affiliates.
"APPLICABLE COMMITMENT FEE RATE" shall mean 0.25% per annum; PROVIDED
that if the Leverage Ratio as at the last day of
CREDIT AGREEMENT
-3-
any fiscal quarter of the Company ending on or after the Effective Date shall
fall within any of the ranges set forth below then, upon the delivery to the
Agent of a certificate of a Responsible Financial Officer of the Company
(which shall accompany the financial statements for such fiscal quarter
delivered under Section 8.01(a) hereof on which the calculation of such
Leverage Ratio is based) demonstrating such fact prior to the end of the next
succeeding fiscal quarter, the "Applicable Commitment Fee Rate" shall be
adjusted upwards or downwards, as the case may be, to the rate per annum set
forth below opposite such range during the period commencing on the third
Business Day following the date of receipt of such certificate to but not
including the date the next such certificate to be delivered under this
definition is delivered or due, whichever is earlier (except that,
notwithstanding the foregoing, the Applicable Commitment Fee Rate shall not
as a consequence of this proviso be so reduced for any period during which an
Event of Default shall have occurred and be continuing):
Range
of
Leverage Ratio Applicable Commitment Fee Rate
-------------- ------------------------------
Less than 2.0:1 0.20%
Equal to or greater than
2.0:1 but
less than 2.50:1 0.25%
Equal to or greater
than 2.50:1 0.375%
; PROVIDED that in the event that there is an Equity Issuance by the Company
resulting in Net Available Proceeds to the Company of at least $50,000,000,
and the Company provides the Agent with the written advice required by
Section 2.09(c) hereof with respect to such Equity Issuance and makes the
application of Net Available Proceeds provided therein, the Applicable
Commitment Fee Rate shall upon such application be immediately adjusted to
give effect to the change in the Leverage Ratio resulting from such
application.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an affiliate of
such Lender) designated for such Type of Loan on the signature pages hereof
or such other office of such Lender (or of an affiliate of such Lender) as
such Lender may from time to time specify to the Agent and the Company as the
CREDIT AGREEMENT
-4-
office by which its Loans of such Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean: with respect to Loans that are
Base Rate Loans, 0.50% and/or Eurodollar Loans, 1.75% per annum; PROVIDED
that if the Leverage Ratio as at the last day of any fiscal quarter of the
Company ending on or after the Effective Date shall fall within any of the
ranges set forth below then, upon the delivery to the Agent of a certificate
of a Responsible Financial Officer of the Company (which shall accompany the
financial statements for such fiscal quarter delivered under Section 8.01(a)
hereof on which the calculation of such Leverage Ratio is based)
demonstrating such fact prior to the end of the next succeeding fiscal
quarter, the "Applicable Margin" for each Loan shall be adjusted upwards or
downwards, as the case may be, to the rate per annum for the respective Type
and Class of Loan set forth below opposite such range during the period
commencing on the third Business Day following the date of receipt of such
certificate to but not including the date the next succeeding such
certificate to be delivered hereunder is delivered or due, whichever is
earlier (except that, notwithstanding the foregoing, the Applicable Margin
for any such Loan shall not as a consequence of this proviso be so reduced
for any period during which an Event of Default shall have occurred and be
continuing):
Range Applicable Margin (% p.a.)
of --------------------------
Leverage Ratio Base Rate Loans Eurodollar Loans
-------------- --------------- ----------------
Less than 2.0:1 0% 0.75%
Equal to or greater than
2.0:1 but less than 2.50:1 0% 1.0%
Equal to or greater than
2.50:1 but less
than 3.25:1 0% 1.25%
Equal to or greater than 3.25:1
but less
than 3.75:1 0.25% 1.50%
Equal to or greater than
3.75:1 0.50% 1.75%
CREDIT AGREEMENT
-5-
; PROVIDED that in the event that there is an Equity Issuance by the Company
resulting in Net Available Proceeds to the Company of at least $50,000,000, and
the Company provides the Agent with the written advice required by Section
2.09(c) hereof with respect to such Equity Issuance and makes the application of
Net Available Proceeds provided therein, the Applicable Margin shall upon such
application be immediately adjusted to give effect to the change in the Leverage
Ratio resulting from such application.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day PLUS 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Loans that bear interest at rates based
upon the Base Rate.
"BASIC DOCUMENTS" shall mean, collectively, the Loan Documents and,
except for purposes of the definitions of "Secured Obligations" and "Guaranteed
Obligations" in any of the Security Documents, the Purchase Agreements.
"BERNON ACQUISITION" shall mean the acquisition by the Company or its
Subsidiaries of the fluid milk and plastics businesses owned by the Bernon
family interests for a total cash purchase price not to exceed $305,000,000.
"BUSINESS DAY" shall mean any day on which (a) commercial banks are
not authorized or required to close in North Carolina and (b) if such day
relates to a borrowing of, a payment or prepayment of principal of or interest
on, a Conversion of or into, or an Interest Period for, a Eurodollar Loan or a
notice by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, any day on which dealings in Dollar deposits are
carried out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals,
CREDIT AGREEMENT
-6-
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, proceeds of a condemnation award or other compensation.
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL ACCOUNT" shall mean with respect to the Company and any of
its Subsidiaries, the Collateral Account as defined in the Security Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission or any
governmental agency substituted therefor.
"COMMITMENTS" shall mean the Facility C Commitments and the Facility D
Commitments.
"COMMONWEALTH" shall mean the Commonwealth of Puerto Rico and its
political subdivisions, municipalities, agencies and instrumentalities.
"COMPANY" shall have the meaning assigned to such term in the preamble
of this Agreement.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.08 hereof of one Type of Loan
CREDIT AGREEMENT
-7-
into another Type of Loan, which may be accompanied by the transfer by a
Lender (at its sole discretion) of a Loan from one Applicable Lending Office
to another.
"DAIRY FRESH" shall mean Dairy Fresh, Inc., a Delaware corporation and
a Wholly Owned Subsidiary of the Company.
"DEBT SERVICE" shall mean, for any period, the sum, for the Company
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all payments of principal of
Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) scheduled to be made during
such period PLUS (b) all Interest Expense for such period, it being understood
that, if any installment of principal of the Facility D Loans or the Facility B
Loans shall have been prepaid during or prior to such period, the amount of
principal of the Facility D Loans and the Facility B Loans included in Debt
Service for such period shall be equal to the aggregate amount of principal of
the Facility D Loans and the Facility B Loans originally scheduled to be paid
hereunder and under the Existing Credit Agreement during such period.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DISPOSITION" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Subsidiaries to any other Person, excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Company or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market or equity value of the Company or any of its Subsidiaries), but
excluding dividends payable solely in shares of common stock of the Company.
"DOLLARS" and "$" shall mean lawful money of the United States.
CREDIT AGREEMENT
-8-
"EBITDA" shall mean, for any period, the sum, for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) operating income (calculated
before income taxes, Interest Expense, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period PLUS
(b) depreciation and amortization (to the extent deducted in determining
operating income) for such period PLUS (c) other income not exceeding $2,000,000
for such period.
"EFFECTIVE DATE" shall mean the date on which all of the conditions to
effectiveness of this Agreement set forth in Section 6.01 hereof shall have been
satisfied or waived.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written or oral 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 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 present and future
Federal, state, local and foreign laws, rules or regulations, and any orders
or decrees, in each case as now or hereafter in effect, relating to the
regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitation, ambient air,
soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes.
CREDIT AGREEMENT
-9-
"EQUITY ISSUANCE" shall mean (a) any issuance or sale by the Company
or any of its Subsidiaries after the Effective Date of (i) any capital stock,
(ii) any warrants or options exercisable in respect of capital stock (other than
any warrants or options issued to directors, officers or employees of the
Company or any of its Subsidiaries, pursuant to employee benefit plans
established in the ordinary course of business and any capital stock of the
Company or any of its Subsidiaries issued upon the exercise of such warrants or
options) or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the Company or any of
its Subsidiaries or (b) the receipt by the Company or any of its Subsidiaries
whether directly (or indirectly through one or more of its Subsidiaries) after
the Effective Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); PROVIDED that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Company to the Company or any Wholly Owned Subsidiary of the
Company or (y) any capital contribution by the Company or any Wholly Owned
Subsidiary of the Company to any Subsidiary of the Company.
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders' or
voting trust agreements) for the issuance, sale, registration or voting of,
or securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such
Person.
"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 the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) 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 the Company
is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar Loan
for any Interest Period therefor, the rate per annum for deposits in Dollars for
a period comparable to such Interest Period which appears on display page 3750
(British
CREDIT AGREEMENT
-10-
Bankers Association - LIBOR) of the Dow Jones Markets Service as of 11:00
a.m. London time two Business Days preceding the first day of such Interest
Period or, if such display page 3750 is unavailable at such time, the rate
which appears on the Reuters Screen ISDA Page as of such date and time;
PROVIDED, however, that if the Agent determines that the relevant foregoing
source is unavailable for the relevant Interest Period, Eurodollar Base Rate
shall mean the rate of interest determined by the Agent to be the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per
annum at which deposits in Dollars in immediately available funds are offered
to the Agent or other money center banks two Business Days preceding the
first day of such Interest Period by leading banks in the London interbank
market as of 11:00 a.m. London time for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the relevant Eurodollar Loan.
"EURODOLLAR LOANS" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the Eurodollar Base Rate for
such Eurodollar Loan for such Interest Period divided by 1 MINUS the Reserve
Requirement (if any) for such Eurodollar Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 9 hereof.
"EXCESS CASH FLOW" shall mean, for any period, the sum, determined
without duplication, for the Company and its Subsidiaries, of (a) EBITDA for
such period MINUS (b) Capital Expenditures made during such period (other than
Capital Expenditures made from the proceeds of Indebtedness permitted under
Section 8.07 hereof) MINUS (c) the aggregate amount of Debt Service for such
period PLUS (d) decreases (if any) (or MINUS increases (if any)) in Working
Capital for such period, MINUS (e) income taxes paid in cash for such period.
"EXCLUDED DISPOSITION" shall mean the Disposition of (i) an Investment
Tax Credit or (ii) any motor vehicles or other equipment no longer used or
useful in the business of the Company or any of its Subsidiaries to the extent
the proceeds thereof are used to acquire similar replacement Property within a
period of
CREDIT AGREEMENT
-11-
30 days after the end of the fiscal quarter in which such Disposition was made.
"EXISTING LENDER" shall mean each Lender under the Existing
Supplemental Credit Agreement.
"EXISTING SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean the
Subsidiary Guarantee and Security Agreement dated as of March 31, 1995 between
each Subsidiary of the Company party thereto and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"FACILITY A COMMITMENT" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY A COMMITMENT PERCENTAGE" shall have the meaning assigned
thereto in the Existing Credit Agreement.
"FACILITY A LENDER" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY A LOAN" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY A NOTE" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY B COMMITMENT" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY B COMMITMENT PERCENTAGE" shall have the meaning assigned
thereto in the Existing Credit Agreement.
"FACILITY B LENDER" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY B LOAN" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY B NOTE" shall have the meaning assigned thereto in the
Existing Credit Agreement.
"FACILITY C COMMITMENT" shall mean, for each Facility C Lender, the
obligation of such Lender to make Facility C Loans to the Company in an
aggregate amount at any one time outstanding up to but not exceeding the amount
set forth opposite the name of such Lender on the signature pages hereof under
the caption "Facility C Commitment" (as the same may be reduced from time to
CREDIT AGREEMENT
-12-
time pursuant to Section 2.03 hereof). The original aggregate principal amount
of the Facility C Commitments is $325,000,000.
"FACILITY C COMMITMENT PERCENTAGE" shall mean, with respect to any
Facility C Lender, the ratio of (a) the amount of the Facility C Commitment of
such Lender to (b) the aggregate amount of the Facility C Commitments of all of
the Facility C Lenders.
"FACILITY C COMMITMENT REDUCTION DATES" shall mean, with respect to
the Facility C Loans, each Quarterly Date during the period commencing on
December 31, 2000, through and including the Facility C Commitment Termination
Date.
"FACILITY C COMMITMENT TERMINATION DATE" shall mean the Quarterly
Date falling on or nearest to September 30, 2003.
"FACILITY C LENDERS" shall mean the Lenders having Facility C
Commitments and/or holding Facility C Loans from time to time.
"FACILITY C LOANS" shall mean the loans provided for by Section
2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"FACILITY C NOTES" shall mean the promissory notes provided for by
Section 2.07(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"FACILITY D COMMITMENT" shall mean, for each Facility D Lender, the
obligation of such Lender to make a Facility D Loan to the Company in a
principal amount up to but not exceeding the amount set opposite the name of
such Lender on the signature pages hereof under the caption "Facility D
Commitment" (as the same may be reduced from time to time pursuant to Section
2.03 hereof). The aggregate principal amount of the Facility D Commitments as
of the Effective Date is $175,000,000.
"FACILITY D LENDERS" shall mean the Lenders having Facility D
Commitments and/or holding Facility D Loans from time to time.
"FACILITY D LOANS" shall mean the Loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
CREDIT AGREEMENT
-13-
"FACILITY D NOTES" shall mean the promissory notes provided for by
Section 2.07(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"FACILITY D LOAN COMMITMENT TERMINATION DATE" shall mean September 22,
1997.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to First Union on such Business Day on such
transactions as determined by the Agent.
"FIRST UNION" shall mean First Union National Bank (formerly First
Union National Bank of North Carolina).
"FIXED CHARGES" shall mean, for any period, the sum, for the Company
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the aggregate amount of Debt
Service for such period, PLUS (b) the aggregate amount of taxes paid in respect
of the income or profit of the Company and its Subsidiaries for such period,
PLUS (c) Capital Expenditures made during such period, PLUS (d) any Dividend
Payments made for such period, PLUS (e) Management Fees for such period (but
only to the extent such Management Fees are not included in the calculation of
EBITDA); provided that Capital Expenditures shall not include the following: (i)
the acquisition of replacement Property in respect of an Excluded Disposition,
(ii) the purchase price paid by the Company or any of its Subsidiaries in
respect of any acquisition permitted under Section 8.05(b)(iv) hereof, and (iii)
Capital Expenditures made with the proceeds of property or casualty insurance
for the purposes of repairing or replacing damaged or destroyed fixed or capital
assets.
CREDIT AGREEMENT
-14-
"FIXED CHARGES RATIO" shall mean, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date to (b) Fixed Charges for such period.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"GARRIDO" shall mean Garrido y Compania, Inc., a Puerto Rico
corporation.
"GARRIDO NEGATIVE PLEDGE AGREEMENT" shall have the meaning assigned to
such term in the Existing Credit Agreement.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement dated as of
September 6, 1996 between Suiza Dairy, Suiza Fruit, Neva Plastics, Reddy Ice
Corporation, Velda Farms, Inc., Suiza Management Corporation and the Agent, as
the same shall be modified and supplemented and in effect from time to time.
"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
CREDIT AGREEMENT
-15-
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 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.
"INDEBTEDNESS" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 120 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"INTEREST COVERAGE RATIO" shall mean, as at any date, the ratio of
(a) EBITDA for a period of four consecutive fiscal quarters ending on, or most
recently ended prior to, such date to (b) Interest Expense for such period.
"INTEREST EXPENSE" shall mean, for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations, but excluding
amortization of any deferred loan costs incurred in connection with the
transactions contemplated hereby or by the Existing Credit Agreement)
capitalized or expensed during such period (whether or not actually paid during
such period), but excluding any non-cash interest, PLUS (b) the net amount
payable (or MINUS the net amount receivable) under Interest Rate Protection
Agreements during such period (whether or not actually paid or
CREDIT AGREEMENT
-16-
received during such period) MINUS (c) all interest income for such period.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Loan, each
period commencing on the date such Eurodollar Loan is made or Converted from a
Base Rate Loan or the last day of the next preceding Interest Period for such
Eurodollar Loan and ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, as the Company may select as
provided in Section 4.05 hereof, except that each Interest Period for a
Eurodollar Loan that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (i) if
any Interest Period for any Facility C Loan would otherwise end after the
Facility C Commitment Termination Date, such Interest Period shall end on the
Facility C Commitment Termination Date; (ii) no Interest Period for any Facility
C Loan may commence before and end after any Facility C Commitment Reduction
Date unless, after giving effect to the reduction of the Facility C Commitments
to occur on such Facility C Commitment Reduction Date, the aggregate principal
amount of the Facility C Loans having Interest Periods that end after such
Facility C Commitment Reduction Date shall be equal to or less than the
aggregate amount of Facility C Commitments scheduled to be outstanding from and
after such Facility C Commitment Reduction Date; (iii) no Interest Period for
any Facility D Loan may commence before and end after any Principal Payment Date
for the Facility D Loans unless, after giving effect thereto, the aggregate
principal amount of the Facility D Loans having Interest Periods that end after
such Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Facility D Loans scheduled to be outstanding after
giving effect to the payments of principal required to be made on such Principal
Payment Date; (iv) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day); and (v) notwithstanding clauses (i) through (iv)
above, no Interest Period shall have a duration of less than one month for any
Eurodollar Loan and, if the Interest Period for any such Loan would otherwise be
a shorter period, such Loan shall not be available as a Eurodollar Loan
hereunder for such period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any Person, an
interest rate swap, cap or collar agreement or
CREDIT AGREEMENT
-17-
similar arrangement between such Person and one or more financial
institutions providing for the transfer or mitigation of interest risks
either generally or under specific contingencies.
"INTEREST RATE PROTECTION OBLIGATIONS" shall mean the obligations of
any Obligor in respect of Interest Rate Protection Agreements permitted under
Section 8.08(d) hereof.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days representing the
purchase price of inventory or supplies sold by such Person in the ordinary
course of business); (c) the entering into of any Guarantee of, or other
contingent obligation with respect to, Indebtedness or other liability of any
other Person and (without duplication) any amount committed to be advanced, lent
or extended to such Person; or (d) the entering into of any Interest Rate
Protection Agreement.
"INVESTMENT TAX CREDIT" shall mean an investment tax credit to which
the Company or any of its Subsidiaries may be entitled pursuant to the Puerto
Rico Agricultural Tax Incentives Act of 1995.
"LEVERAGE RATIO" shall mean, as at any date, the ratio of (a) the
aggregate outstanding principal amount of Indebtedness at such date to (b)
EBITDA for the period of four consecutive fiscal quarters ending on, or most
recently ended prior to, such date; provided that if the Company or any of its
Subsidiaries shall have acquired any business, Property or Person during such
period (whether before, on or after the Effective Date), EBITDA shall, to the
extent the Company shall have delivered audited financial statements (or, if
audited financial statements are not available to the Company, unaudited
financial statements (i) reviewed by independent certified accountants of
recognized national standing and acceptable to the Agent and (ii) in form
satisfactory to the Agent) for the acquired business, Property or Person for
such period, be adjusted to reflect on a pro forma
CREDIT AGREEMENT
-18-
basis EBITDA for such business, Property or Person as if such business,
Property or Person had been acquired at the beginning of such period.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own, subject to a Lien, any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"LOANS" shall mean the Facility C Loans and the Facility D Loans.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Existing Credit Agreement, the Notes, the Facility A Notes, the Facility B Notes
and the Security Documents.
"MAJORITY LENDERS" shall mean, as at any time, Facility C Lenders and
Facility D Lenders having at least a majority of the sum of (a) the aggregate
unused amount, if any, of the Facility C Commitments and Facility D Commitments
as at such time PLUS (b) the aggregate outstanding principal amount of the
Facility C Loans and Facility D Loans at such time.
"MANAGEMENT FEES" shall mean, for any period, any amounts paid or
incurred by the Company or any of its Subsidiaries to any Person on account of
fees, salaries and other compensation in respect of services rendered in
connection with the management or supervision of the Company and/or any of its
Subsidiaries (but excluding customary and reasonable compensation and other
benefits paid or provided to officers, employees and directors for services
rendered to the Company or any of its Subsidiaries in such capacities or any
such amounts by any Subsidiary of the Company to the Company or any other
Subsidiary of the Company).
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Company and its Subsidiaries taken as a
whole, (b) the ability of any Obligor to perform its obligations under any of
the Loan
CREDIT AGREEMENT
-19-
Documents to which it is a party, (c) the validity or enforceability of any
of the Loan Documents, (d) the rights and remedies of the Lenders and the
Agent under any of the Loan Documents or (e) the timely payment of the
principal of or interest on the Loans or other amounts payable in connection
therewith or under the Loan Documents.
"MODEL DAIRY" shall mean Model Dairy, Inc., a Delaware corporation.
"MORTGAGES" shall mean, collectively, (a) the mortgages or deeds of
trust identified in Schedule VII hereto and (b) one or more mortgages or deeds
of trust, in the respective forms of Exhibits C and D hereto or of Exhibits B
and C to the Existing Credit Agreement (with such modifications thereto
requested by the Agent as may be appropriate to effect a lien on real property
in the state where the respective property to be covered by such instrument is
located), executed by the respective Obligors who own or lease such property in
favor of the Agent (or, in the case of a deed of trust, in favor of the trustee
for the benefit of the Agent and the Lenders and/or the lenders under the
Existing Credit Agreement, as the case may be) pursuant to Sections 8.19(c) or
8.19(d) hereof or of the Existing Credit Agreement covering the respective
Properties and/or leasehold interests identified in Schedule IV hereto or
subject to the requirements of said Sections 8.19(c) or 8.19(d), in each case as
the same shall be modified and supplemented and in effect from time to time.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET AVAILABLE PROCEEDS" shall mean:
(a) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Company and its Subsidiaries in respect of such Casualty Event net
of (i) reasonable expenses incurred by the Company and its Subsidiaries in
connection therewith and (ii) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property and any
income and transfer taxes
CREDIT AGREEMENT
-20-
payable by the Company or any of its Subsidiaries in respect of such
Casualty Event; and
(c) in the case of any Equity Issuance, the aggregate amount of all
cash received by the Company and its Subsidiaries in respect of such Equity
Issuance net of reasonable expenses incurred by the Company and its
Subsidiaries in connection therewith.
"NET CASH PAYMENTS" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Company and its Subsidiaries directly or
indirectly in connection with such Disposition; PROVIDED that (a) Net Cash
Payments shall be net of (i) the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Company and its
Subsidiaries in connection with such Disposition and (ii) any Federal, state and
local income or other taxes estimated to be payable by the Company and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes are in fact paid to the relevant Federal, state or local
governmental authority within six months of the date of such Disposition) and
(b) Net Cash Payments shall be net of any repayments by the Company or any of
its Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is
secured by a Lien on the Property that is the subject of such Disposition and
(ii) the transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the Disposition thereof.
"NET PURCHASE PRICE" shall mean 100% of the purchase price (including
noncash compensation) paid by the Company or any of its Subsidiaries for any
business, Property or Person in connection with a Permitted Acquisition MINUS
any cash on the balance sheet of the Person or included in the business or
Property being acquired pursuant to such Permitted Acquisition.
"NET WORTH" shall mean, as at any date, the sum for the Company and
its Subsidiaries (determined on a consolidated basis without duplication) 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).
"NEVA PLASTICS" shall mean Neva Plastics Manufacturing Corp., a
Delaware corporation.
CREDIT AGREEMENT
-21-
"NEW LENDER" shall mean each Lender party to this Agreement on the
Effective Date which is not a party to the Existing Supplemental Credit
Agreement.
"NOTES" shall mean the Facility C Notes and the Facility D Notes.
"OBLIGOR" shall mean the Company and each Subsidiary of the Company
party to any Security Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" shall mean any acquisition by the Company or
any of its Subsidiaries of any business or Property from, or capital stock of,
any Person, PROVIDED that, (i) unless otherwise consented to in writing (a) by
the Majority Lenders, the Net Purchase Price of such acquisition shall not equal
or exceed $30,000,000, and (b) by the Supermajority Lenders, the Net Purchase
Price of such acquisition shall not equal or exceed $150,000,000 (except that
the Bernon Acquisition shall not require the consents set forth in sub-clauses
(a) and (b) of this clause (i); (ii) if the subject of such acquisition is a
Person, the Company and/or its Subsidiaries shall not acquire less than 90% of
the issued and outstanding ownership interests (including, without limitation,
warrants, options or other securities convertible into ownership interests) in
such Person (except that warrants may be issued by Franklin Plastics,Inc., a
Delaware corporation and Subsidiary of the Company, to purchase shares of its
common stock up to 17.5% of outstanding common stock thereof on a fully diluted
basis in connection with the Bernon Acquisition, to Persons other than the
Company or its Subsidiaries), (iii) prior to such acquisition, the Company shall
have delivered to the Agent for further distribution to the Lenders copies of
the proposed acquisition agreement relating to such acquisition, all material
documents related thereto and at the reasonable request of the Agent, such other
material information respecting such business, Property or Person, as the case
may be, obtained by the Company in the exercise of its due diligence, (iv) at
the time of such acquisition, the Company or its Subsidiary, as the case may be,
shall grant a security interest in such business or Property or pledge such
ownership interests to the Agent for the benefit of the Lenders, except that no
such security interest shall be required in any parcel of real property or
leasehold interest having a current market value of less than $1,500,000, as
demonstrated in a manner reasonably satisfactory to the Agent, at
CREDIT AGREEMENT
-22-
the time of acquisition thereof, (v) such business, Property or Persons shall
be in the same line or lines of business currently engaged in by the Company
or any of its Subsidiaries, or as permitted by Section 8.16 hereof, and (vi)
on a pro forma basis, after giving effect to such acquisition, the Company
shall be in compliance with Sections 8.10, 8.11, 8.12 and 8.13 hereof.
"PERMITTED INVESTMENTS" shall mean: (a) direct obligations of the
United States, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States, or of any agency thereof, in either
case maturing not more than one year from the date of acquisition thereof;
(b) direct obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of such
acquisition, having the highest rating obtainable from either Standard & Poor's
Ratings Group, a division of McGraw-Hill, Inc. ("S&P") or Moody's Investors
Services, Inc. ("MOODY'S"); (c) certificates of deposit issued by any bank or
trust company organized under the laws of the United States or any state thereof
or the Commonwealth and having capital, surplus and undivided profits of at
least $500,000,000, maturing not more than six months from the date of
acquisition thereof; (d) commercial paper rated A-1 or better or P-1 by S&P or
Moody's, respectively, maturing not more than six months from the date of
acquisition thereof; and (e) Eurodollar time deposits having a maturity of less
than six months purchased directly from any bank meeting the criteria set forth
in clause (c) above (whether such deposit is with such bank or any other such
bank).
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan or any other amount under this Agreement, any Note or any other Loan
Document that is not paid when due (whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise), and in respect of any principal of any
Loan during any period commencing upon the occurrence of any Event of Default
and thereafter for so long as any Event of
CREDIT AGREEMENT
-23-
Default shall be continuing, a rate per annum during the period from and
including the due date to but excluding the earlier of the date on which such
amount is paid in full or such Event of Default ceases to be continuing equal
to 2% PLUS the Base Rate as in effect from time to time PLUS the Applicable
Margin for Base Rate Loans (PROVIDED that, if the amount so in default is
principal of a Eurodollar Loan and the due date thereof is a day other than
the last day of the Interest Period therefor, the "Post-Default Rate" for
such principal shall be, for the period from and including such due date to
but excluding the last day of such Interest Period, 2% PLUS the interest rate
for such Eurodollar Loan as provided in Section 3.02(b) hereof and,
thereafter, the rate provided for above in this definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by First Union at its principal office as its prime commercial lending
rate.
"PRINCIPAL PAYMENT DATES" shall mean the Quarterly Dates falling on or
nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with December 31, 1999, through and including September 30, 2003.
"PROCESS AGENT" shall have the meaning assigned to such term in
Section 11.10(c) hereof.
"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal (including, without limitation, cash) or
mixed and whether tangible or intangible.
"PUERTO RICO SECURITY DOCUMENTS" shall mean each of the agreements
listed in Schedule VI hereto, and each of the Additional Puerto Rico Security
Documents, in each case as any such agreement shall be modified and supplemented
and in effect from time to time.
"PURCHASE AGREEMENTS" shall mean, collectively, each Purchase
Agreement between the Company or any of its Subsidiaries and the seller of the
business, Property or Person purchased by the Company or such Subsidiary
pursuant to a Permitted Acquisition financed under this Agreement.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December in each year, the first of which shall be September 30,
1997.
CREDIT AGREEMENT
-24-
"REGISTER" shall have the meaning assigned to such term in Section
11.06(g) hereof.
"REGISTERED HOLDER" shall have the meaning assigned to such term in
Section 5.06(b) (ii) hereof.
"REGISTERED LOANS" shall have the meaning assigned to such term in
Section 2.07(e) hereof.
"REGISTERED NOTE" shall have the meaning assigned to such term in
Section 2.07(e) hereof.
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date of this Agreement in United States, Federal, state or foreign law
or regulations or in the law or regulations of the Commonwealth (including,
without limitation, Regulation D) or the adoption or making after such date of
any interpretation, directive or request applying to a class of banks including
such Lender of or under any Federal, state or foreign law or regulations or in
the law or regulations of the Commonwealth (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to
CREDIT AGREEMENT
-25-
which the Eurodollar Base Rate is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or (ii) any
category of extensions of credit or other assets that includes Eurodollar
Loans.
"RESPONSIBLE FINANCIAL OFFICER" shall mean, with respect to any
Person, the Chairman of the Board of Directors, the President, the Chief
Executive Officer, the Chief Financial Officer or the Treasurer of such Person.
"SECURITY AGREEMENT" shall mean the Security Agreement dated as of
March 31, 1995 between the Company and the Agent, as amended by the Amendment to
Security Agreement dated as of July 17, 1996 between the Company and the Agent,
by Amendment No. 2 to Security Agreement between the Company and the Agent dated
as of September 6, 1996, by Amendment No. 3 to Security Agreement, dated as of
December 2, 1996 between the Company and the Agent, and by Amendment No. 4 to
Security Agreement, dated as of June 10, 1997 between the Company and the Agent,
and as further modified and supplemented and in effect from time to time.
"SECURITY DOCUMENTS" shall mean, collectively, the Security Agreement,
the Mortgages, each Supplemental Subsidiary Guarantee and Security Agreement,
the Existing Subsidiary Guarantee and Security Agreement, the Guarantee
Agreement, the Puerto Rico Security Documents and all Uniform Commercial Code
financing statements and/or other filings required hereby or thereby to be filed
with respect to the security interests in personal Property and fixtures created
pursuant hereto or thereto.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SUBSIDIARY GUARANTORS" shall mean Suiza Dairy, Suiza Fruit, Model
Dairy, Neva Plastics, Reddy Ice Corporation, Swiss Dairy, Velda Farms, Inc.,
Dairy Fresh and Suiza Management
CREDIT AGREEMENT
-26-
Corporation, each a Delaware corporation, and each Supplemental Guarantor.
"SUIZA DAIRY" shall mean Suiza Dairy Corporation, a Delaware
corporation.
"SUIZA FRUIT" shall mean Suiza Fruit Corporation, a Delaware
corporation.
"SUPERMAJORITY LENDERS" shall mean, as at any time, Facility C Lenders
and Facility D Lenders having at least 66 2/3% of the sum of (a) the aggregate
unused amount, if any, of the Facility C Commitments and the Facility D
Commitments as at such time PLUS (b) the aggregate outstanding principal amount
of the Facility C Loans and Facility D Loans at such time.
"SUPPLEMENTAL GUARANTOR" shall mean each Subsidiary of the Company
party to a Supplemental Subsidiary Guarantee and Security Agreement.
"SUPPLEMENTAL SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean,
collectively, (i) the Supplemental Subsidiary Guarantee and Security Agreement
dated as of September 6, 1996 between the Agent and Swiss Dairy, (ii) the
Supplemental Guarantee and Security Agreement dated as of December 2, 1996
between the Agent and Model Dairy, (iii) the Supplemental Subsidiary Guarantee
and Security Agreement dated as of June 10, 1997 between the Agent and Dairy
Fresh (formerly known as DF Acquisition Corp.), and (iv) each Supplemental
Subsidiary Guarantee and Security Agreement substantially in the form of Exhibit
B hereto, as the same shall be modified and supplemented and in effect from time
to time.
"SWISS DAIRY" shall mean Swiss Dairy Corporation, a Delaware
corporation and a Wholly Owned Subsidiary of the Company.
"TAXES" shall have the meaning assigned to such term in Section
5.06(a) hereof.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"UNITED STATES" shall mean the United States of America.
"U.S. TAXES" shall have the meaning assigned to such term in Section
5.06(b) hereof.
CREDIT AGREEMENT
-27-
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"WORKING CAPITAL" shall mean, for any period, the excess of (a) the
aggregate amount of inventory, accounts receivable and prepaid expenses of the
Company and its Subsidiaries over (b) the aggregate amount of accounts payable
and current accrued expenses of the Company and its Subsidiaries.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder. All calculations made for the
purposes of determining compliance with this Agreement shall (except as
otherwise expressly provided herein) be made by application of generally
accepted accounting principles applied on a basis consistent with those used in
the preparation of the latest annual or quarterly financial statements furnished
to the Lenders pursuant to Section 8.01 hereof unless (i) the Company shall have
objected to determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Lenders shall so object in
writing within 30 days after delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance
CREDIT AGREEMENT
-28-
with the last sentence of subsection (a) above and (ii) reasonable estimates
of the difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 8 hereof, the Company will not, without
the prior consent of the Majority Lenders, change the last day of its fiscal
year from December 31 of each year, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30 of
each year, respectively.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished
by "Class" and "Type". The "Class" of a Loan (or of a Commitment to make a Loan
or the related Note) refers to whether such Loan is a Facility C Loan or a
Facility D Loan, each of which constitutes a Class. The "Type" of a Loan refers
to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 LOANS.
(a) FACILITY C LOANS. On the Effective Date, (i) the "Facility C
Loans" (as defined in the Existing Supplemental Credit Agreement) held by the
Existing Lenders under the Existing Supplemental Credit Agreement shall
automatically, and without any action on the part of any Person, be deemed to be
Facility C Loans hereunder, (ii) the New Lenders shall be Facility C Lenders and
parties hereto, and (iii) the Facility C Lenders shall take such steps, which
may include the making of assignments and Facility C Loans and other adjustments
among the Facility C Lenders, as shall be necessary so that after giving effect
to such assignments and adjustments, the Facility C Lenders shall hold Facility
C Loans hereunder ratably in accordance with their respective Facility C
Commitments. On the Effective Date all Interest Periods under the Existing
Supplemental Credit Agreement in respect of the "Facility C Loans" under and as
defined in the Existing Supplemental Credit Agreement shall automatically be
terminated (and the Company shall on the Effective Date make payments to the
Existing Lenders that held such "Facility C Loans" under Section 5.05 thereof to
compensate for such termination as if such termination were a payment or
prepayment referred to in said Section 5.05), and the Company shall be permitted
to continue such "Facility C Loans" as Eurodollar Loans
CREDIT AGREEMENT
-29-
hereunder, or to convert such "Facility C Loans" into Base Rate Loans
hereunder.
(ii) Each Facility C Lender severally agrees, on the terms and
conditions of this Agreement, to make loans to the Company in Dollars during the
period from and including the Effective Date to but not including the Facility C
Commitment Termination Date in an aggregate principal amount (including any
Loans outstanding to it by reason of the assignments and other adjustments under
the immediately preceding paragraph) at any one time outstanding up to but not
exceeding the amount of the Facility C Commitment of such Lender as in effect
from time to time. Subject to the terms and conditions of this Agreement,
during such period the Company may borrow, repay and reborrow the amount of the
Facility C Commitments by means of Base Rate Loans and/or Eurodollar Loans and
prior to the final maturity date of the Facility C Loans may Convert Facility C
Loans of one Type into Facility C Loans of another Type (as provided in
Section 2.08 hereof) or Continue Facility C Loans of one Type as Facility C
Loans of the same Type (as provided in Section 2.08 hereof).
(b) FACILITY D LOANS. Each Facility D Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to the
Company in Dollars on the Effective Date (provided that the same shall occur no
later than the Facility D Loan Commitment Termination Date) in a principal
amount up to but not exceeding the amount of the Facility D Commitment of such
Facility D Lender. On the Effective Date certain outstanding Facility A Loans
under the Existing Credit Agreement shall be deemed converted into Facility D
Loans hereunder in accordance with Section 2.01(c) of the Existing Credit
Agreement; provided that the aggregate principal amount of Facility D Loans made
hereunder and Facility D Loans resulting from such conversion shall not exceed
the Facility D Commitments. Subject to the terms and conditions of this
Agreement, the Company may borrow the amount of the Facility D Commitments by
means of Base Rate Loans and/or Eurodollar Loans and thereafter may Convert
Facility D Loans of one Type into Facility D Loans of another Type (as provided
in Section 2.08 hereof) or Continue Facility D Loans of one Type as Facility D
Loans of the same Type (as provided in Section 2.08 hereof).
(c) ADJUSTMENTS GENERALLY. On the date three Business Days prior to
the Effective Date, the Agent shall notify each Lender of the amount of Loans
required to be made by such Lender (if any) to the Company on the Effective
Date, the amount of increase or decrease in each Commitment of such Lender and
of any
CREDIT AGREEMENT
-30-
other assignments or adjustments that the Agent deems necessary and advisable
such that after giving effect to the transactions contemplated in this Section
to occur on the Effective Date, each Lender's Commitments shall be in
accordance with the Commitments set forth opposite its name on the signature
pages hereof, each Lender's Loans of any Class to the Company shall not exceed
its pro rata portion of all Loans of any such Class then outstanding to the
Company hereunder and the unused Commitments of all the Lenders plus all
outstanding Loans under this Agreement shall not exceed $500,000,000 in
aggregate principal amount. Any such assignments shall be deemed to occur
hereunder automatically on the Effective Date and without any requirement for
additional documentation and in the case of any such assignment, the assigning
party shall be deemed to represent and warrant to each assignee that it has
not created any adverse claim upon the interest being assigned and that such
interest is free and clear of any adverse claim. Each Lender hereby agrees to
give effect to the instructions of the Agent to such Lender contained in the
notice described above.
(d) LIMIT ON CERTAIN LOANS. No more than six separate Interest
Periods in respect of Eurodollar Loans of any Class from each Lender may be
outstanding at any one time.
2.02 BORROWINGS.
(a) The Company shall give the Agent notice of each borrowing
hereunder as provided in Section 4.05 hereof.
(b) With respect to each borrowing, not later than 3:30 p.m.
Charlotte, North Carolina time on the date specified for such borrowing, each
Lender shall make available the amount of the Loan or Loans to be made by it to
the Company on such date to the Agent at any account designated by the Agent, in
immediately available funds, for account of the Company. The amount so received
by the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Company by depositing the same, in immediately available
funds, in the deposit account of the Company identified in the most recent
Notice of Account Designation substantially in the form of Exhibit J-4 hereto
delivered by the Company to the Agent or as may be otherwise agreed by the
Company and the Agent from time to time.
2.03 CHANGES OF COMMITMENTS. (a) The aggregate amount of the
Facility C Commitments will be automatically reduced to zero on the Facility C
Commitment Termination Date. In addition, the aggregate amount of the Facility
C Commitments shall be
CREDIT AGREEMENT
-31-
automatically reduced at the close of business on each Facility C Commitment
Reduction Date set forth in column (A) below by an amount (subject to
reduction pursuant to paragraph (d) below) equal to the percentage of the
original aggregate principal amount of the Facility C Commitments set forth in
column (B) below opposite such Facility C Commitment Reduction Date:
(A) (B)
Facility C Facility C
Commitment Reduction Commitments Reduced by the
Date Falling on or Percentage of Original
Nearest To: Facility C Commitments (%)
----------- --------------------------
December 31, 2000 6.25%
March 31, 2001 6.25%
June 30, 2001 6.25%
September 30, 2001 6.25%
December 31, 2001 6.25%
March 31, 2002 6.25%
June 30, 2002 6.25%
September 30, 2002 6.25%
December 31, 2002 12.50%
March 31, 2003 12.50%
June 30, 2003 12.50%
September 30, 2003 12.50%
(b) The Company shall have the right at any time or from time to time
(i) to terminate or reduce the aggregate unused amount of the Facility D
Commitments, (ii) so long as no Facility C Loans are outstanding, to terminate
the Facility C Commitments, and (iii) to reduce the aggregate unused amount of
any of the Facility C Commitments; PROVIDED that (x) the Company shall give
notice of each such termination or reduction as provided in Section 4.05 hereof
and (y) each such partial reduction shall be in an aggregate amount at least
equal to $2,000,000 (or a larger multiple of $1,000,000).
(c) Each reduction in the aggregate amount of the Facility C
Commitments pursuant to paragraph (b) above on any date shall result in an
automatic and simultaneous reduction of the percentages set forth in column (B)
at the end of paragraph (a) above for each Facility C Commitment Reduction Date
after the date of such reduction (ratably in accordance with the respective
remaining amounts thereof, after giving effect to any prior reductions pursuant
to this paragraph (c)).
CREDIT AGREEMENT
-32-
(d) Any portion of the Facility D Commitments not used on the
Facility D Loan Commitment Termination Date shall be automatically terminated.
(e) The Commitments once terminated or reduced may not be reinstated.
2.04 COMMITMENT FEE. The Company shall pay to the Agent for account
of each Lender a commitment fee on the daily average unused amount of such
Lender's Facility C Commitment, for the period from and including the Effective
Date to but not including the earlier of the date such Facility C Commitment is
terminated and the Facility C Commitment Termination Date, at a rate per annum
equal to the Applicable Commitment Fee Rate. Accrued commitment fees shall be
payable in arrears on each Quarterly Date and on the earlier of (i) the date the
Facility C Commitments are terminated and (ii) the Facility C Commitment
Termination Date.
2.05 LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.06 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loans on such date,
but neither any Lender nor the Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and no Lender shall
have any obligation to the Agent or any other Lender for the failure by such
Lender to make any Loans required to be made by such Lender. The amounts
payable by the Company at any time hereunder and under the Notes to each Lender
shall be a separate and independent debt and each Lender shall be entitled,
subject to the prior written consent of the Majority Lenders, to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Lender or the Agent to be joined as an additional
party in any proceedings for such purposes.
2.07 NOTES.
(a) The Facility C Loans made by each Lender shall be evidenced by a
single promissory note of the Company substantially in the form of Exhibit A-1
hereto, dated the Effective Date, payable to such Lender in a principal amount
equal to the amount of its Facility C Commitment as originally in effect and
otherwise duly completed.
CREDIT AGREEMENT
-33-
(b) The Facility D Loans made by each Lender shall be evidenced by a
single promissory note of the Company substantially in the form of Exhibit A-2
hereto, dated the Effective Date, payable to such Lender in a principal amount
equal to the amount of its Facility D Commitment as originally in effect and
otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books and, prior to any transfer of the Note evidencing the Loans
of such Class held by it, endorsed by such Lender on the schedule attached to
such Note or any continuation thereof; PROVIDED that the failure of such Lender
to make any such recordation or endorsement or an error therein shall not affect
the obligations of the Company to make a payment when due of any amount owing
hereunder or under such Note in respect of the Loans to be evidenced by such
Note.
(d) No Lender shall be entitled to have its Notes subdivided, by
exchange for promissory notes of lesser denominations or otherwise, except in
connection with a permitted assignment of all or any portion of such Lender's
relevant Commitments, Loans and Notes pursuant to Section 11.06(b) hereof.
(e) Notwithstanding the foregoing, any Lender that is not a U.S.
Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code may request the Company (through the Agent), and the Company agrees
thereupon, to record on the Register referred to in Section 11.06(g) hereof any
Facility D Loans held by such Lender under this Agreement. Loans recorded on
the Register ("REGISTERED LOANS") may not be evidenced by promissory notes other
than Registered Notes as defined below and, upon the registration of any
Facility D Loan, any promissory note (other than a Registered Note) evidencing
the same shall be null and void and shall be returned to the Company. The
Company agrees, at the request of any Lender that is the holder of Registered
Loans, to execute and deliver to such Lender a promissory note in registered
form to evidence such Registered Loans and registered as provided in Section
11.06(g) hereof (herein, a "REGISTERED NOTE"), dated the Effective Date, payable
to such Lender and otherwise duly completed. A Facility D Loan once recorded on
the Register may not be removed from the Register so long as it remains
outstanding and a Registered Note may not be exchanged for a promissory note
that is not a Registered Note.
CREDIT AGREEMENT
-34-
2.08 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.04 hereof, the Company shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
PROVIDED that:
(a) the Company shall give the Agent notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 hereof (and, upon the
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder);
(b) Eurodollar Loans may be prepaid or Converted on any day, PROVIDED
that, if such prepayment or Conversion falls on a day other than the last day of
an Interest Period for such Loans, the Company shall pay any and all amounts
required by Section 5.05 hereof as a result thereof;
(c) prepayments of the Facility C Loans under this Section 2.08 shall
be applied first to the Facility C Loans then outstanding which are Base Rate
Loans and then to those which are Eurodollar Loans; and
(d) prepayments of the Facility D Loans under this Section 2.08 shall
be applied ratably as among the remaining installments of the Facility D Loans.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 9 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Agent may (and at the request of the
Majority Lenders shall) suspend the right of the Company to borrow any Loan as a
Eurodollar Loan or to Convert any Loan into a Eurodollar Loan, or to Continue
any Loan as a Eurodollar Loan, in which event all Eurodollar Loans outstanding
shall be automatically Converted (on the last day(s) of the respective Interest
Periods therefor) to or all Base Rate Loans shall be Continued, as the case may
be, as Base Rate Loans.
2.09 MANDATORY PREPAYMENTS.
(a) CASUALTY EVENTS. Not later than 60 days following the receipt by
the Company or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of any Supplemental Guarantor or acquired with the
proceeds of
CREDIT AGREEMENT
-35-
Facility C Loans or Facility D Loans hereunder (or upon such earlier date as
the Person owning such Property shall have determined not to repair or replace
the Property affected by such Casualty Event), the Company shall prepay the
Facility C Loans or Facility D Loans, as the case may be, in an aggregate
amount, if any, equal to 100% of the Net Available Proceeds of such Casualty
Event not theretofore applied to the repair or replacement of such Property,
such prepayments to be effected in each such case in the manner and to the
extent specified in paragraph (e). In the event that such Net Available
Proceeds exceed the outstanding amount of the Facility C Loans or Facility D
Loans, such excess shall be applied to the prepayment of the Facility B Loans
in accordance with the terms of the Existing Credit Agreement. Nothing in
this paragraph (a) shall be deemed to limit any obligation of the Company or
any of its Subsidiaries pursuant to any of the Security Documents to remit to
a collateral or similar account (including, without limitation, the Collateral
Account) maintained by the Agent pursuant to any of the Security Documents the
proceeds of insurance, condemnation award or other compensation received in
respect of any Casualty Event. Notwithstanding the foregoing, in the event
that a Casualty Event shall occur with respect to Property of a Supplemental
Guarantor or acquired with the proceeds of Facility C Loans or Facility D
Loans hereunder and covered by any Mortgage, the Company shall prepay the
Facility C Loans or the Facility D Loans on the dates and in the amounts
specified in such Mortgage. In the event of a Casualty Event involving
Property not covered by this Section 2.09(a), the Net Available Proceeds of
such Casualty Event shall be applied in accordance with the terms of the
Existing Credit Agreement.
(b) SALE OF ASSETS. Without limiting the obligation of the Company
to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof
to any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition of Property of any Supplemental Guarantor
or Property acquired with the proceeds of Facility C Loans or Facility D Loans
hereunder other than an Excluded Disposition (herein, the "CURRENT
DISPOSITION"), and of all prior Dispositions of Property of any Supplemental
Guarantor or Property acquired with the proceeds of Facility C Loans or Facility
D Loans hereunder as to which a prepayment has not yet been made under this
Section 2.09(b), shall exceed $1,000,000 then, no later than 5 Business Days
prior to the occurrence of the Current Disposition, the Company will deliver to
the Lenders a statement, certified by a Responsible Financial Officer of the
Company, in form and detail satisfactory to the Agent, of the amount of the Net
Available Proceeds of the Current Disposition
CREDIT AGREEMENT
-36-
and of all such prior Dispositions and the Company will prepay the Facility C
Loans or Facility D Loans (or cause the Facility C Loans or Facility D Loans
to be prepaid), in an aggregate amount equal to 100% of the Net Available
Proceeds of the Current Disposition and such prior Dispositions, such
prepayment to be effected in each case in the manner and to the extent
specified in paragraph (e) below. In the event that such Net Available
Proceeds exceed the outstanding amount of the Facility C Loans and Facility D
Loans, such excess shall be applied to the prepayment of the Facility B Loans
in accordance with the terms of the Existing Credit Agreement. In the case of
all Dispositions of Property other than those referred to in this paragraph
(b), the Company will make (or cause to be made) prepayments of the Facility A
Loans and the Facility B Loans as required by the Existing Credit Agreement.
(c) EQUITY ISSUANCE; INVESTMENT TAX CREDITS. Upon any Equity
Issuance or the issuance of any Indebtedness (other than Indebtedness permitted
under Section 8.07 hereof) or the Disposition of any Investment Tax Credit after
the Effective Date, the Company shall (i) prepay the Facility C Loans, the
Facility D Loans or the Facility B Loans in an aggregate amount equal to 100% of
the Net Available Proceeds thereof or (ii) in connection with a Disposition of
any Investment Tax Credit, apply any part of the Net Available Proceeds thereof,
within six months of receipt, to the purchase price of a Permitted Acquisition,
if any, and use the balance of such Net Available Proceeds to prepay the
Facility C Loans, the Facility D Loans or the Facility B Loans as contemplated
in clause (i) above. Promptly after each such Equity Issuance the Company shall
advise the Agent in writing of its designated application of such Net Available
Proceeds thereof. Any such prepayments of the Facility C Loans or Facility D
Loans shall be effected in the manner specified in paragraph (e) below.
(d) EXCESS CASH FLOW. Not later than 90 days after the end of each
fiscal year of the Company, commencing with the fiscal year ending December 31,
1997, the Company shall prepay the Facility B Loans, the Facility C Loans and
the Facility D Loans in an aggregate amount equal to the excess of (A) 50% of
Excess Cash Flow for such fiscal year (or, if the Leverage Ratio is less than
3.25 to 1, 0% of such Excess Cash Flow) over (B) the aggregate amount of
prepayments of Facility B Loans, Facility C Loans and Facility D Loans made
during such fiscal year pursuant to Section 2.08 hereof and Section 2.08 of the
Existing Credit Agreement. Mandatory prepayments arising from Excess Cash Flow
shall be applied to the Facility B Loans, the Facility C Loans and the Facility
D Loans pro rata based on the aggregate
CREDIT AGREEMENT
-37-
principal amounts thereof then outstanding. Prepayments of Facility D Loans
under this paragraph (d) shall be effected in each case in the manner and to
the extent specified in paragraph (e) below.
(e) APPLICATION. Prepayments of Loans described in paragraphs (a)
through (d) above shall be effected as follows:
(i) first, in the case of the amount of any prepayment specified in
the respective paragraph to be applied to the Facility D Loans then
outstanding, 50% of such amount shall be applied to the Facility D Loans in
the inverse order of the maturities of the installments thereof and (after
taking into account such application) the remainder of such amount shall be
applied ratably to then remaining installments of principal of the Facility
D Loans; and
(ii) second, in the case of the amount of any prepayment specified
in the respective paragraph to be applied to the Facility C Loans then
outstanding, such amount shall be applied ratably to the Facility C Loans
then outstanding.
(f) REDUCED COMMITMENT. In the event that at any time the aggregate
principal amount of Facility C Loans then outstanding shall exceed the Facility
C Commitments then in effect, the Company shall thereupon prepay Facility C
Loans in an aggregate amount equal to such excess.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) FACILITY C LOANS. The Company hereby promises to pay to the
Agent for account of each Facility C Lender the entire outstanding principal
amount of each Facility C Loan made by such Lender, and each Facility C Loan
shall mature, on the Facility C Commitment Termination Date. In addition, if
following any Facility C Commitment Reduction Date the aggregate principal
amount of the Facility C Loans then outstanding shall exceed the Facility C
Commitments in effect after the applicable reduction, the Company shall pay
Facility C Loans in an aggregate amount equal to such excess.
(b) FACILITY D LOANS. The Company hereby promises to pay to the
Agent for account of each Facility D Lender the principal of such Lender's
Facility D Loan in sixteen installments payable on the Principal Payment Dates
as follows,
CREDIT AGREEMENT
-38-
each in an amount equal to such Lender's ratable share of the aggregate amount
set forth opposite such date:
Principal Payment Date
Falling on or Nearest To: Amount of Installment ($)
------------------------- -------------------------
December 31, 1999 2,500,000.00
March 31, 2000 2,500,000.00
June 30, 2000 2,500,000.00
September 30, 2000 2,500,000.00
December 31, 2000 2,500,000.00
March 31, 2001 2,500,000.00
June 30, 2001 2,500,000.00
September 30, 2001 2,500,000.00
December 31, 2001 3,750,000.00
March 31, 2002 3,750,000.00
June 30, 2002 3,750,000.00
September 30, 2002 3,750,000.00
December 31, 2002 3,750,000.00
March 31, 2003 3,750,000.00
June 30, 2003 3,750,000.00
September 30, 2003 128,750,000.00
3.02 INTEREST. The Company hereby promises to pay to the Agent for
account of each Lender interest on the unpaid principal amount of each Loan for
the period from and including the date of such Loan to but excluding the date
such Loan shall be paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) PLUS the Applicable Margin, and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period PLUS the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the Agent
for account of each Lender interest at the applicable Post-Default Rate as
follows:
(i) on any principal of any Loan made by such Lender and on any other
amount payable by the Company hereunder or
CREDIT AGREEMENT
-39-
under the Notes held by such Lender to or for account of such Lender that
shall not be paid in full when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), for the period from
and including the due date thereof to but excluding the date the same is
paid in full; and
(ii) on the principal of all Loans made by such Lender commencing
upon the occurrence of any Event of Default, and thereafter for so long as
any Event of Default shall be continuing.
Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan, quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, and (iii) at the option of the Agent, in the case of any
Loan, upon the payment or prepayment thereof or the Conversion of such Loan to a
Loan of another Type (but only on the principal amount so paid, prepaid or
Converted) except that interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Company.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, commitment fee and other amounts to be made by the Company
under this Agreement and the Notes of the Company, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Loan Document, shall be made in Dollars, in immediately available funds,
to the Agent at any account designated by the Agent not later than 2:00 p.m.
Charlotte, North Carolina time on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary
CREDIT AGREEMENT
-40-
deposit account of the Company with such Lender (with notice to the Company
and the Agent).
(c) The Company shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the Agent (which
shall so notify the intended recipient(s) thereof) the Loans or other amounts
payable hereunder to which such payment is to be applied (and in the event
that the Company fails to so specify, or if an Event of Default has occurred
and is continuing, the Agent may distribute such payment to the Lenders for
application in such manner as it or the Majority Lenders, subject to Section
4.02 hereof, may determine to be appropriate).
(d) Each payment received by the Agent under this Agreement or any Note
for account of any Lender shall be paid by the Agent promptly to such Lender,
in immediately available funds, for account of such Lender's Applicable
Lending Office for the Loans or other obligation in respect of which such
payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders
under Section 2.01 hereof shall be made from the relevant Lenders, each
payment of commitment fee under Section 2.04 hereof in respect of Commitments
of a particular Class shall be made for account of the relevant Lenders, and
each termination or reduction of the amount of the Commitments of a
particular Class under Section 2.03 hereof shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to the
amounts of their respective Commitments of such Class; (b) the making,
Conversion and Continuation of Loans of a particular Type and Class (other
than Conversions provided for by Section 5.04 hereof) shall be made pro rata
among the relevant Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in
the case of Conversions and Continuations of Loans); (c) each payment or
prepayment of principal of Loans of any Class by the Company shall be made
for account of the relevant Lenders pro rata in accordance with the
respective unpaid principal amounts of the Loans of such Class held by them;
and (d) each payment of interest on any Loans of
CREDIT AGREEMENT
-41-
any Class by the Company shall be made for account of the relevant Lenders
pro rata in accordance with the amounts of interest on such Loans then due
and payable to the respective Lenders.
4.03 COMPUTATIONS. Interest on Eurodollar Loans and commitment fees
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period
for which payable and interest on Base Rate Loans shall be computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made pursuant
to Section 2.09 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, (a) each borrowing and Conversion of principal of Base
Rate Loans shall be in an aggregate amount at least equal to $1,000,000 or a
larger multiple of $500,000, (b) each borrowing and Conversion of Eurodollar
Loans shall be in an aggregate amount at least equal to $5,000,000 or a
larger multiple of $1,000,000, (c) each partial prepayment of principal of
Eurodollar Loans shall be in an aggregate amount at least equal to $5,000,000
or a larger multiple of $1,000,000 and each partial prepayment of principal
of Base Rate Loans shall be in an aggregate amount at least equal to
$1,000,000 or a larger multiple of $500,000 (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be
deemed separate borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period).
4.05 CERTAIN NOTICES. Notices by the Company to the Agent of
terminations or reductions of the Commitments, of Borrowings, Conversions,
Continuations and optional prepayments of Loans, of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable
(other than with respect to notices of optional prepayments, which shall be
revocable, PROVIDED that upon any such revocation the Company shall be
obligated to pay the Lenders any amounts payable under Section 5.05 hereof as
a consequence of such revocation) and shall be effective only if received by
the Agent not later than 1:30 p.m. Charlotte, North Carolina time on the
number of Business Days prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first day
of such Interest Period specified below:
CREDIT AGREEMENT
-42-
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans Same Day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amounts
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each
such notice of the duration of an Interest Period shall specify the Loans to
which such Interest Period is to relate. The Agent shall promptly notify the
Lenders of the contents of each such notice. In the event that the Company
fails to select the Type of Loan, or the duration of any Interest Period for
any Eurodollar Loan, within the time period and otherwise as provided in this
Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate
Loan. The Company agrees that each notice of borrowing, each notice of
prepayment and each notice of Conversion or Continuation hereunder shall be
substantially in the form of Exhibit J-1, Exhibit J-2 and Exhibit J-3 hereto,
respectively.
4.06 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent shall have
been notified by a Lender or the Company (the "PAYOR") prior to the date on
which the Payor is to make payment to the Agent of (in the case of a Lender)
the proceeds of a Loan to be made by such Lender hereunder or (in the case of
the Company) a payment to the Agent for account of one or more of the Lenders
hereunder (such payment being herein called the "REQUIRED
CREDIT AGREEMENT
-43-
PAYMENT"), which notice shall be effective upon receipt, that the Payor does
not intend to make the Required Payment to the Agent, the Agent may assume
that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available
to the intended recipient(s) on such date; and, if the Payor has not in fact
made the Required Payment to the Agent, the recipient(s) of such payment
shall, on demand, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date (the "ADVANCE DATE") such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to
the Federal Funds Rate for such day and, if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as aforesaid,
PROVIDED that if neither the recipient(s) nor the Payor shall return the
Required Payment to the Agent within three Business Days of the Advance Date,
then, retroactively to the Advance Date, the Payor and the recipient(s) shall
each be obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made
by the Company to the Lenders, the Company and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the Post-Default Rate (and, in case
the recipient(s) shall return the Required Payment to the Agent, without
limiting the obligation of the Company under Section 3.02 hereof to pay
interest to such recipient(s) at the Post-Default Rate in respect of the
Required Payment) and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to the Company, the Payor and the Company shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the rate of interest provided for
such Required Payment pursuant to Section 3.02 hereof (and, in case the
Company shall return the Required Payment to the Agent, without limiting
any claim the Company may have against the Payor in respect of the
Required Payment).
4.07 SHARING OF PAYMENTS, ETC.
(a) The Company agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be
CREDIT AGREEMENT
-44-
entitled, at its option but with the prior written consent of the Majority
Lenders, to offset balances held by it for account of the Company at any of
its offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans or any other amount payable to such
Lender hereunder, that is not paid when due (regardless of whether such
balances are then due to the Company), in which case it shall promptly notify
the Company and the Agent thereof, PROVIDED that such Lender's failure to
give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class owing to it or payment of
any other amount under this Agreement or any other Loan Document through the
exercise of any right of set-off, Lender's lien or counterclaim or similar
right or otherwise (other than from the Agent as provided herein), and, as a
result of such payment, such Lender shall have received a greater percentage
of the principal of or interest on the Loans of such Class or such other
amounts then due hereunder or thereunder by such Obligor to such Lender than
the percentage received by any other Lender, it shall promptly purchase from
such other Lenders participations in (or, if and to the extent specified by
such Lender, direct interests in) the Loans of such Class or such other
amounts, respectively, owing to such other Lenders (or in interest due
thereon, as the case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders
shall share the benefit of such excess payment (net of any expenses that may
be incurred by such Lender in obtaining or preserving such excess payment)
pro rata in accordance with the unpaid principal of and/or interest on the
Loans of such Class or such other amounts, respectively, owing to each of the
Lenders. To such end all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or
other amounts (as the case may be) owing to such Lender in the amount of such
participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation
CREDIT AGREEMENT
-45-
of any Obligor. If, under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) The Company shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Eurodollar Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"ADDITIONAL COSTS"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Eurodollar Loans) to any tax, duty or other charge in
respect of such Eurodollar Loans or its Notes or changes the basis of
taxation of any amounts payable to such Lender under this Agreement or
its Notes in respect of any of such Eurodollar Loans (excluding changes
in the rate of tax on the overall net income of such Lender or of its
Applicable Lending Office by the jurisdiction in which such Lender is
organized or has its principal office or in which its Applicable Lending
Office is organized or located or, in each case, any political
subdivision or taxing authority thereof or therein); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Eurodollar Loan) relating
to any extensions of credit or other assets of, or any deposits with or
other liabilities of, such Lender (including, without limitation, any of
such Eurodollar Loans or any deposits referred to in the definitions of
"Eurodollar Base Rate" in Section 1.01 hereof), or any commitment of
such Lender (including, without limitation, the Commitments of such
Lender hereunder); or
CREDIT AGREEMENT
-46-
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Company under this Section
5.01(a), the Company may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, to Convert Loans of another Type into Eurodollar Loans or
to Convert Eurodollar Loans into Loans of another Type until the Regulatory
Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable), PROVIDED that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01, in the event that, by reason of any Regulatory Change, any
Lender (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities
of such Lender that includes deposits by reference to which the interest rate
on Eurodollar Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Lender that includes
Eurodollar Loans or (ii) becomes subject to restrictions on the amount of
such a category of liabilities or assets that it may hold then, if such
Lender so elects by notice to the Company (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Loans of another
type into, Eurodollar Loans, hereunder (as the case may be) shall be
suspended until any such Regulatory Change ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law
or regulation or any interpretation, directive or request (whether or not
having the force of law and whether or not failure to comply therewith would
be unlawful) of any court or governmental or monetary authority (i) following
any Regulatory Change or (ii) hereafter implementing any risk-based capital
guideline or other requirement (whether or not having the force of law and
whether
CREDIT AGREEMENT
-47-
or not the failure to comply therewith would be unlawful) heretofore or
hereafter issued by any government or governmental or supervisory authority
implementing at the national level the Basle Accord (including, without
limitation, the Final Risk-Based Capital Guidelines of the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 208, Appendix A; 12 C.F.R. Part
225, Appendix A) and the Final Risk-Based Capital Guidelines of the Office of
the Comptroller of the Currency (12 C.F.R. Part 3, Appendix A)), of capital
in respect of its Commitments or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets
or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Lender (or any Applicable
Lending Office or such bank holding company) could have achieved but for such
law, regulation, interpretation, directive or request). For purposes of this
Section 5.01(c) and Section 5.08 hereof, "BASLE ACCORD" shall mean the
proposals for risk-based capital framework described by the Basle Committee
on Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards"
dated July 1988, as amended, modified and supplemented and in effect from
time to time or any replacement thereof.
(d) Each Lender shall notify the Company of any event occurring after
the date of this Agreement entitling such Lender to compensation under
paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but in
any event within 45 days, after such Lender obtains actual knowledge thereof;
PROVIDED that (i) if any Lender fails to give such notice within 45 days
after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to this Section 5.01 in respect of
any costs resulting from such event, only be entitled to payment under this
Section 5.01 for costs incurred from and after the date 45 days prior to the
date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such
Lender, be disadvantageous to such Lender, except that such Lender shall have
no obligation to designate an Applicable Lending Office located in the United
States. Each Lender will furnish to the Company a certificate setting forth
the basis and amount of each request by such Lender for compensation under
paragraph (a) or (c) of this Section 5.01. Determinations and allocations by
any Lender for purposes of this Section 5.01 of the effect of any Regulatory
Change pursuant to paragraph (a) or (b) of this Section 5.01, or of the
effect of
CREDIT AGREEMENT
-48-
capital maintained pursuant to paragraph (c) of this Section 5.01, on its
costs or rate of return of maintaining Loans or its obligation to make Loans,
or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Lender under this Section 5.01, shall be
conclusive in the absence of manifest error, PROVIDED that such
determinations and allocations are made on a reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Agent determines, which determination shall be conclusive,
that quotations of interest rates for the relevant deposits referred to
in the definition of "Eurodollar Base Rate" in Section 1.01 hereof are
not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Eurodollar
Loans as provided herein; or
(b) The Majority Lenders determine, which determination shall be
conclusive, and notify the Agent that the relevant rates of interest
referred to in the definitions of "Eurodollar Base Rate" in Section 1.01
hereof upon the basis of which the rate of interest for Eurodollar Loans
for such Interest Period is to be determined are not likely adequately
to cover the cost to such Lenders of making or maintaining Eurodollar
Loans for such Interest Period;
then the Agent shall give the Company and each Lender prompt notice thereof
(describing the circumstances giving rise to such event) and, so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, to Continue Eurodollar Loans, to Convert Loans
of another Type into Eurodollar Loans and the Company shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurodollar
Loans either prepay such Eurodollar Loans or Convert such Eurodollar Loans
into Loans of another Type in accordance with Section 2.08 hereof.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain
Eurodollar Loans hereunder, then such Lender shall promptly notify the
Company thereof (with a copy to the Agent) and such Lender's obligation to
make or Continue, or to
CREDIT AGREEMENT
-49-
Convert Loans of any other Type into, Eurodollar Loans shall be suspended
until such time as such Lender may again make and maintain Eurodollar Loans
(in which case the provisions of Section 5.04 hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make Eurodollar Loans ("AFFECTED LOANS"), or to Continue, or to Convert Loans
of another Type into Affected Loans shall be suspended pursuant to Section
5.01 or 5.03 hereof, such Lender's Affected Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current
Interest Period(s) therefor (or, in the case of a Conversion required by
Section 5.01(b), 5.01(c) or 5.03 hereof, on such earlier date as such Lender
may specify to the Company with a copy to the Agent) and, unless and until
such Lender gives notice as provided below that the circumstances specified
in Section 5.01 or 5.03 hereof that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Affected Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Affected Loans (as the case may be) shall remain as Base
Rate Loans.
If such Lender gives notice to the Company with a copy to the Agent that the
circumstances specified in Section 5.01 or 5.03 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 5.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Affected Loans made by other Lenders and of
the same Class as such Lender's Loans are outstanding, such Lender's Base
Rate Loans of such Class shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding
Affected Loans of such Class, to the extent necessary so that, after giving
effect thereto, all Loans of such Class held by the Lenders holding Affected
Loans and by such Lender are held pro rata (as to principal amounts, Types
and Interest Periods) in accordance with their respective Commitments.
CREDIT AGREEMENT
-50-
5.05 COMPENSATION. The Company shall pay to the Agent for
account of each Lender, upon the request of such Lender through the Agent,
such amount or amounts as shall be sufficient (in the reasonable opinion of
such Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion
of a Eurodollar Loan made by the Company for any reason (including,
without limitation, the acceleration of the Loans pursuant to Section 9
hereof) on a date other than the last day of the Interest Period for such
Eurodollar Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof or in the notice from the
Agent given pursuant to Section 2.01(c);
(c) any failure for any reason (including, without limitation, as
provided in Section 5.02 or 5.03 hereof) of a Loan of such Lender to be
Continued as or Converted into a Eurodollar Loan on the date for such
Continuation or Conversion specified in the relevant notice given under
Section 4.05 hereof; or
(d) the revocation of any notice of optional prepayment or any
failure for any reason to make any optional prepayment on the date
specified therefor in the relevant notice of prepayment given pursuant
to Section 4.05 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed or prepaid for the period from the date of such
payment, prepayment, Conversion or failure to borrow or prepay to the last day
of the then current Interest Period for such Eurodollar Loan (or, in the case of
a failure to borrow, the Interest Period for such Eurodollar Loan that would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Eurodollar Loan (MINUS the Applicable Margin) provided for
herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have
CREDIT AGREEMENT
-51-
bid on the date of such payment, prepayment, Conversion or failure to borrow
or prepay in the London interbank market for Dollar deposits of leading banks
in amounts comparable to such principal amount and with maturities comparable
to such period (as reasonably determined by such Lender).
5.06 NET PAYMENTS; TAXES.
(a) All payments to be made hereunder and under the Notes and any
other Loan Documents by the Company shall be made without setoff, counterclaim
or other defense. Subject to Section 5.06(b) hereof with respect to U.S. Taxes,
all such payments shall be made free and clear of and without deduction for or
on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any governmental authority
(other than taxes imposed on the Agent, any Lender or its Applicable Lending
Office by the jurisdiction in which the Agent or such Lender is organized or has
its principal office or in which its Applicable Lending Office is organized or
located or, in each case, any political subdivision or taxing authority thereof
or therein) (collectively, "TAXES"). If any Taxes are imposed and required to
be withheld from any amount payable by the Company hereunder or under the Notes,
the Company shall be obligated to (i) pay such additional amount so that the
Agent and the Lenders will receive a net amount (after giving effect to the
payment of such additional amount and to the deduction of all Taxes) equal to
the amount due hereunder, (ii) pay such Taxes to the appropriate taxing
authority for the account of the Agent, for the benefit of the Lenders and (iii)
as promptly as possible thereafter, sending the Agent a certified copy of any
original official receipt showing payment thereof, together with such additional
documentary evidence as the Agent may from time to time reasonably require. If
the Company fails to pay any Taxes when due to the appropriate taxing authority
or fails to remit to the Agent the required receipts or other required
documentary evidence, the Company shall be obligated to indemnify the Agent and
each Lender for any incremental taxes, interest or penalties that may become
payable by the Agent or such Lender as a result of such failure. The
obligations of the Company under this Section 5.06(a) shall survive the
repayment of the Loans and the termination of the Commitments.
(b) The Company agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment
of any amount due to and received by such non-U.S. Person hereunder after
deduction for or withholding
CREDIT AGREEMENT
-52-
in respect of any U.S. Taxes imposed with respect to such payment (or in lieu
thereof, payment of such U.S. Taxes by such non-U.S. Person), will not be
less than the amount stated herein to be then due and payable, PROVIDED that
the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to a Lender (other than in respect of a
Registered Loan) hereunder unless such Lender is, on the date hereof (or on
the date it becomes a Lender as provided in Section 11.06(b) hereof) and on
the date of any change in the Applicable Lending Office of such Lender,
either entitled to submit a Form 1001 (relating to such Lender and
entitling it to a complete exemption from withholding on all interest to be
received by it hereunder in respect of the Loans) or Form 4224 (relating to
all interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "REGISTERED HOLDER"), unless such Registered Holder (or,
if such Registered Holder is not the beneficial owner of such Registered
Loan, the beneficial owner thereof) is, on the date hereof (or on the date
such Registered Holder becomes a Lender as provided in Section 11.06(b)
hereof) and on the date of any change in the Applicable Lending Office of
such Lender, entitled to submit a Form W-8, together with an annual
certificate stating that (x) such Registered Holder (or beneficial owner,
as the case may be) is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, and (y) such Registered Holder (or beneficial
owner, as the case may be) shall promptly notify the Company if at any
time, such Registered Holder (or beneficial owner, as the case may be)
determines that it is no longer in a position to provide such certificate
to the Company (or any other form of certification adopted by the relevant
taxing authorities of the United States for such purposes), or
(iii) to any U.S. Taxes imposed solely by reason of the failure by
such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections
with the United States of such non-U.S. Person (or such beneficial owner,
as the case may be) if such compliance is required by statute or regulation
of the
CREDIT AGREEMENT
-53-
United States as a precondition to relief or exemption from such U.S.
Taxes.
For the purposes of this Section 5.06(b), (v) "FORM 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States, (w) "FORM 4224" shall mean Form 4224 (Exemption
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury of the
United States, (x) "FORM W-8" shall mean Form W-8 (Certificate of Foreign Status
of the Department of Treasury of the United States of America) (or in relation
to any of such Forms such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States to document a
claim to which such Form relates), (y) "U.S. PERSON" shall mean a citizen,
national or resident of the United States, a corporation, partnership or other
entity created or organized in or under any laws of the United States, or any
estate or trust that is subject to Federal income taxation regardless of the
source of its income and (z) "U.S. TAXES" shall mean any present or future tax,
assessment or other charge or levy imposed by or on behalf of the United States
or any taxing authority thereof or therein.
Within 30 days after paying any amount to the Agent or any Lender from
which it is required by law to make any deduction or withholding, and within 30
days after it is required by law to remit such deduction or withholding to any
relevant taxing or other authority, the Company shall deliver to the Agent for
delivery to such non-U.S. Person evidence satisfactory to such Person of such
deduction, withholding or payment (as the case may be).
5.07 REPLACEMENT OF LENDERS. If any Lender requests compensation
pursuant to Section 5.01 or 5.06 hereof, or any Lender's obligation to make or
Continue, or to Convert Loans of any Type into, any other Type of Loan shall be
suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender so requesting
compensation, or whose obligations are so suspended being herein called a
"RELEVANT LENDER"), the Company upon three Business Days notice may require that
such Relevant Lender transfer all of its right, title and interest under this
Agreement and such Relevant Lender's Notes to any bank or other financial
institution identified by the Company that is reasonably satisfactory to the
Agent (i) if such bank or other financial institution (a "PROPOSED LENDER")
agrees to assume all of the obligations of such Relevant Lender hereunder, and
to purchase all of such Relevant Lender's Loans hereunder for consideration
equal to the
CREDIT AGREEMENT
-54-
aggregate outstanding principal amount of such Relevant Lender's Loans,
together with accrued, but unpaid interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Relevant
Lender of all other amounts payable hereunder to such Relevant Lender on or
prior to the date of such transfer (including any fees accrued hereunder and
any amounts that would be payable under Section 5.05 hereof as if all of such
Relevant Lender's Loans were being prepaid in full on such date) and (ii) if
such Relevant Lender has requested compensation pursuant to Section 5.01 or
5.06 hereof, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 5.01 or 5.06 with respect to such Relevant Lender's
Loans is lower than that of the Relevant Lender. Subject to compliance with
the provisions of Section 11.06(b) hereof, such Proposed Lender shall be a
"Lender" for all purposes hereunder. Without prejudice to the survival of
any other agreement of the Company hereunder, the agreements of the Company
contained in Sections 5.01, 5.06 and 11.03 hereof (without duplication of any
payments made to such Relevant Lender by the Company or the Proposed Lender)
shall survive for the benefit of such Relevant Lender under this Section 5.07
with respect to the time prior to such replacement.
Section 6. CONDITIONS PRECEDENT.
6.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
(and the amendment and restatement of the Existing Supplemental Credit Agreement
to be effected hereby) and the obligation of any Lender to extend credit
hereunder, are subject to (i) the condition precedent that the Effective Date
shall occur on or before September 22, 1997 and (ii) the receipt by the Agent of
the following documents, each of which shall be satisfactory to the Agent (and
to the extent specified below, to each Lender or the Majority Lenders, as the
case may be) in form and substance:
(a) CORPORATE DOCUMENTS. Certified copies of the charter and by-laws
(or equivalent documents) of each Obligor and of all corporate authority
for each Obligor (including, without limitation, board of director
resolutions and evidence of the incumbency of officers, together with
specimen signatures of each such officer) with respect to the execution,
delivery and performance of such of the Basic Documents to which such
Obligor is intended to be a party and each other document to be delivered
by such Obligor from time to time in connection herewith and the extensions
of credit hereunder (and the Agent and each Lender may conclusively rely on
such certificate until it
CREDIT AGREEMENT
-55-
receives notice in writing from such Obligor to the contrary).
(b) OFFICER'S CERTIFICATE. A certificate of a Responsible Financial
Officer of the Company, dated the date hereof, to the effect set forth in
the first sentence of Section 6.03 hereof.
(c) OPINION OF COUNSEL TO THE OBLIGORS. Opinions, each dated the
date hereof, of Hughes & Luce, counsel to the Obligors, substantially in
the form of Exhibit E-1 hereto, and of Axtmayer Adsuar Muniz & Goyco,
special Puerto Rico counsel to the Subsidiary Guarantors operating in the
Commonwealth, substantially in the form of Exhibit E-2 hereto and, in each
case, covering such other matters as the Agent or any Lender may reasonably
request (and each Obligor hereby instructs such counsel to deliver such
opinion to the Lenders and the Agent).
(d) OPINION OF COUNSEL TO FIRST UNION. An opinion, dated the date
hereof, of Milbank, Tweed, Hadley & McCloy, special New York counsel to
First Union, substantially in the form of Exhibit G hereto (and First Union
hereby instructs such counsel to deliver such opinion to the Lenders).
(e) NOTES. The Facility C Notes and Facility D Notes, duly completed
and executed.
(f) INSURANCE. Certificates of insurance evidencing the existence of
all insurance required to be maintained by the Company and its Subsidiaries
pursuant to Section 8.04 hereof and the designation of the Agent as the
loss payee or additional named insured, as the case may be, thereunder. In
addition, the Company shall have delivered a certificate of a Responsible
Financial Officer of the Company setting forth the insurance obtained by it
in accordance with the requirements of Section 8.04 and stating that such
insurance is in full force and effect and that all premiums then due and
payable thereon have been paid.
(g) FINANCIAL INFORMATION. (i) Copies of the pro forma projections
of the Company and its Subsidiaries for the period ended December 31, 1997
and (ii) unaudited consolidating financial statements of the Company and
its Subsidiaries for the twelve-month period ended on December 31, 1996.
CREDIT AGREEMENT
-56-
(h) PAYMENT OF FEES AND EXPENSES, ETC. Evidence that the Company
shall have paid such fees and expenses as the Company shall have agreed to
pay to the Agent in connection herewith, including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special
New York counsel to First Union, and Fiddler Gonzalez & Rodriguez, special
Puerto Rico counsel to First Union, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the Notes and the
other Loan Documents and the making of the Loans hereunder (to the extent
that statements for such fees and expenses have been delivered to the
Company three days prior to the Closing Date).
(i) EXISTING CREDIT AGREEMENT. Existing Credit Agreement, duly
executed by each of the parties thereto, together with evidence that all
conditions precedent set forth in Section 6 of the Existing Credit
Agreement shall have been satisfied or waived.
(j) PROCESS AGENT ACCEPTANCE. A letter from the Process Agent, in
form and substance satisfactory to the Agent, accepting the appointment of
the Process Agent by the Company.
(k) EVIDENCE OF LENDER ALLOCATIONS. Evidence from the Agent that on
the date of this Agreement (after giving effect to the transactions
contemplated hereby) the Lenders under this Agreement shall hold the same
pro rata portion of Facility C Loans and Facility D Loans (and if no
Facility C Loans or Facility D Loans are outstanding, Facility C
Commitments and Facility D Commitments) under this Agreement, as they hold
of Facility A Loans and Facility B Loans (or Facility A Commitments and
Facility B Commitments) under the Existing Credit Agreement and as to the
total amount of Loans of each Class outstanding on the Effective Date
hereunder and under the Existing Credit Agreement.
(l) ACCRUED INTEREST. Evidence that (i) all interest accrued on the
outstanding "Facility A Loans" and "Facility B Loans" under the predecessor
to the Existing Credit Agreement and all accrued commitment and other fees
thereunder to the Effective Date, (ii) all interest accrued on the
outstanding "Facility C Loans" under Existing Supplemental Credit Agreement
and all accrued commitment and other fees thereunder to the Effective Date,
and (iii) all amounts payable by the Company (if any) under Sections
CREDIT AGREEMENT
-57-
2.01(a)(i), 2.01(b)(i) and 2.01(c) of the Existing Credit Agreement have
been paid in full.
(m) OTHER DOCUMENTS. Such other documents as the Agent or any Lender
or special New York counsel to First Union may reasonably request.
6.02 CONDITIONS PRECEDENT TO LENDING FOR PERMITTED ACQUISITIONS. The
obligation of any Lender to make Loans hereunder to finance any Permitted
Acquisition (including the Bernon Acquisition) is subject to the receipt by the
Agent of the following documents, each of which shall be satisfactory to the
Agent (and to the extent specified below, to each Lender, Majority Lenders, or
Supermajority Lenders as the case may be) in form and substance:
(a) In connection with each Permitted Acquisition involving the
purchase of the capital stock or other ownership interests of a Person
(unless such Person is merged contemporaneously into the Company or an
existing Subsidiary of the Company) or the formation of a corporation or
other entity for the purpose of such Permitted Acquisition:
(i) CORPORATE DOCUMENTS. Certified copies of the charter and
by-laws (or equivalent documents) of the relevant Person and of all
corporate authority for such Person (including, without limitation,
board of director resolutions and evidence of the incumbency of
officers, together with specimen signatures of each such officer) with
respect to the execution, delivery and performance of such of the
Basic Documents to which such Person is intended to be a party and
each other document to be delivered by such Person from time to time
in connection herewith and therewith (and the Agent and each Lender
may conclusively rely on such certificate until it receives notice in
writing from such Person to the contrary).
(ii) SUPPLEMENTAL SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT.
A Supplemental Subsidiary Guarantee and Security Agreement,
substantially in the form of Exhibit B hereto and duly executed by the
Agent and the relevant Supplemental Guarantor, pursuant to which such
Supplemental Guarantor shall create a first priority security interest
in all of its personal Property in favor of the Agent for the benefit
of the Lenders and the Facility A Lenders and the Facility B
CREDIT AGREEMENT
-58-
Lenders, except as otherwise provided herein or therein. In addition,
the Company shall have taken such other action (including, without
limitation, delivering to the Agent, (i) Uniform Commercial Code
searches for such Supplemental Guarantor for each jurisdiction in
which such Supplemental Guarantor conducts its business or in which
any of its Properties are located (or otherwise as the Agent may
reasonably request) and (ii) for filing, appropriately completed and
duly executed copies of Uniform Commercial Code financing statements),
as the Agent shall have requested in order to perfect the security
interest created pursuant to such Supplemental Subsidiary Guarantee
and Security Agreement.
(iii) OPINION OF COUNSEL TO THE SUPPLEMENTAL GUARANTOR.
Opinions, appropriately dated, of counsel to the relevant Supplemental
Guarantor covering such matters as the Agent or any Lender may
reasonably request.
(iv) OPINION OF COUNSEL TO FIRST UNION. An opinion,
appropriately dated, of Milbank, Tweed, Hadley & McCloy, special New
York counsel to First Union, substantially in the form of Exhibit G
hereto but as to the relevant Supplemental Guarantee and Security
Agreement (and First Union hereby instructs such counsel to deliver
such opinion to the Lenders).
(v) AMENDMENT TO SECURITY AGREEMENT; FILINGS. An amendment to
the Security Agreement (or, if applicable, the Existing Subsidiary
Guaranty and Security Agreement), duly executed and delivered by the
Company (or the appropriate Subsidiary) and the Agent and the
certificates identified in Annex 1 thereto, accompanied by undated
stock powers executed in blank. In addition, the Company shall have
taken such other action (including, without limitation, delivering to
the Agent, (i) Uniform Commercial Code searches for each Supplemental
Guarantor for each jurisdiction in which such Supplemental Guarantor
conducts its respective business or in which any of its respective
Properties are located (or otherwise as the Agent may reasonably
request) and (ii) for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements) as
the Agent shall have requested in order to perfect the security
interests created pursuant to such amendment to the
CREDIT AGREEMENT
-59-
Security Agreement and/or the relevant Supplemental Subsidiary
Guarantee and Security Agreement.
(vi) INSURANCE. Certificates of insurance evidencing the
existence of all insurance required to be maintained by the relevant
Supplemental Guarantor pursuant to Section 8.04 hereof and the
designation of the Agent as the loss payee or additional named
insured, as the case may be, thereunder. In addition, the Company or
the relevant Supplemental Guarantor shall have delivered a certificate
of a Responsible Financial Officer of the Company or such Supplemental
Guarantor setting forth the insurance obtained by the Company or such
Supplemental Guarantor in accordance with the requirements of
Section 8.04 and stating that such insurance is in full force and
effect and that all premiums then due and payable thereon have been
paid.
(b) In connection with all Permitted Acquisitions (including the
Bernon Acquisition) (as appropriate):
(i) CONSUMMATION OF PERMITTED ACQUISITION. Evidence that the
relevant Permitted Acquisition shall have been consummated in all
material respects in accordance with the terms of the relevant
Purchase Agreement, and the Agent shall have received a certificate
of a Responsible Financial Officer of the Company to that effect (and
attaching thereto a true and complete copy of the relevant Purchase
Agreement).
(ii) ENVIRONMENTAL MATTERS. To the extent that a Permitted
Acquisition involves the direct or indirect acquisition of real
Property, upon the request of the Agent, environmental surveys and
assessments prepared by one or more firms of licensed engineers
(familiar with the identification of toxic and hazardous substances)
in form and substance satisfactory to each Lender, such environmental
survey and assessment to be based upon physical on-site inspections by
such firm of each of the existing sites and facilities to be owned,
operated or leased by the Company or the relevant Supplemental
Guarantor or any of its Subsidiaries pursuant to such Permitted
Acquisition as well as an historical review of the uses of such sites
and facilities and of the business and operations of such Supplemental
Guarantor or any of its Subsidiaries (including any former
Subsidiaries or divisions thereof or any of its Subsidiaries that have
been disposed of
CREDIT AGREEMENT
-60-
prior to the date of such survey and assessment and with respect to
which such Supplemental Guarantor or any of its Subsidiaries may
have retained liability for Environmental Claims), and if requested
by the Agent, the Company shall have agreed to take other reasonable
steps after the date of such Permitted Acquisition with respect to
such matters as shall be agreed in writing with the Agent.
(iii) SOLVENCY ANALYSIS. A certificate from a Responsible
Financial Officer of the Company to the effect that, as of the date of
the respective Permitted Acquisition and after giving effect to the
Loans in connection with the relevant Permitted Acquisition hereunder
and to the other transactions contemplated hereby in connection with
such Permitted Acquisition, (i) the aggregate value of all Properties
of the Company and its Subsidiaries at their present fair saleable
value (i.e., the amount that may be realized within a reasonable time,
considered to be six months to one year, either through collection or
sale at the regular market value, conceiving the latter as the amount
that could be obtained for the Property in question within such period
by a capable and diligent businessman from an interested buyer who is
willing to purchase under ordinary selling conditions), exceeds the
amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Company
and its Subsidiaries, (ii) the Company and its Subsidiaries will not,
on a consolidated basis, have unreasonably small capital with which to
conduct their business operations as theretofore conducted and (iii)
the Company and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
The Agent shall have also received (x) a certificate from a
Responsible Financial Officer of the Company certifying that the
financial projections and underlying assumptions contained in such
analyses were at the time made, and on the date thereof are, fair and
reasonable and accurately computed and (y) appropriate factual
information supporting the conclusions of the solvency analyses and
the financial condition certificate required to be delivered as
provided above.
(iv) MORTGAGES. With respect to each parcel of real property or
leasehold interest with a current fair
CREDIT AGREEMENT
-61-
market value in excess of $1,500,000, as demonstrated in a manner
reasonably satisfactory to the Agent, at the time of acquisition
thereof, the following documents each of which shall be executed
(and, where appropriate, acknowledged) by Persons satisfactory to
the Agent:
(A) one or more Mortgages covering the parcels of real
Property of the relevant Supplemental Guarantor or acquired by
the Company or any Subsidiary thereof pursuant to a Permitted
Acquisition financed hereunder (collectively, the "SUPPLEMENTAL
MORTGAGES"), in each case duly executed and delivered by the
Company or the relevant Subsidiary or Supplemental Guarantor, as
applicable, in recordable form and, to the extent necessary under
applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(B) one or more commitments for or mortgagee policies of
title insurance on forms of and issued by one or more title
companies satisfactory to the Agent ("TITLE COMPANIES"), insuring
the validity and priority of the Liens created under the
Supplemental Mortgages for and in amounts satisfactory to the
Agent, subject only to such exceptions as are satisfactory to the
Majority Lenders;
(C) current as-built surveys of each of the parcels to be
covered by the Supplemental Mortgages and, in the case of certain
surveys (as agreed by the Company and the Agent), accompanied by
a certificate of an appropriate officer or employee of the
Company, which surveys shall be in form and content acceptable to
the Agent and shall have been prepared by a registered surveyor
acceptable to the Agent;
(D) upon request of the Agent, certified copies of
permanent and unconditional certificates of occupancy (or, if it
is not the practice to issue certificates of occupancy in the
jurisdiction in which the parcels to be covered by the
Supplemental Mortgages are located, then such
CREDIT AGREEMENT
-62-
other evidence reasonably satisfactory to each Lender) permitting
the fully functioning operation and occupancy of each such
facility and of such other permits necessary for the use and
operation of each such facility issued by the respective
governmental authorities having jurisdiction over each such
facility;
(E) upon request of the Agent, in the case of Supplemental
Mortgages covering leasehold interests, such estoppel, consents
and other agreements from the lessor, the holder of a fee
mortgage or a sublessee, as the Agent may reasonably request;
(F) upon request of the Agent, appraisals of each of the
facilities located on the Properties covered by the Supplemental
Mortgages prepared by a Person, and using a methodology,
satisfactory to the Agent; and
(G) contemporaneously dated opinions of local counsel in
the respective jurisdictions in which the properties covered by
the Supplemental Mortgages are located, substantially in the form
of Exhibit F hereto (with such changes thereto as the Agent shall
approve), and in each case, covering such other matters as the
Agent may reasonably request (and the Company, each relevant
Subsidiary of the Company and each Supplemental Guarantor hereby
instructs such counsel to deliver such opinion to the Lenders and
the Agent).
In addition, the Company shall have paid to the Title Companies
all expenses and premiums of the Title Companies in connection with
the issuance of such policies and in addition shall have paid to the
Title Companies an amount equal to the recording and stamp taxes
payable in connection with recording the Supplemental Mortgages in
the appropriate jurisdictions.
(v) FINANCIAL INFORMATION. (A) a certificate of a Responsible
Financial Officer of the Company to the effect that on a pro forma
basis after giving effect to the relevant Permitted Acquisition, the
Company shall remain in compliance with Sections 8.10, 8.11, 8.12 and
8.13 hereof and (B) the most recent audited
CREDIT AGREEMENT
-63-
consolidated balance sheet of the Person (if any) to be acquired and
its Subsidiaries and the related statement of income, retained
earnings and cash flow for the fiscal year ended on said date, with
opinions thereon of the auditors of such Person(or, if audited
financial statements are not available to the Company, unaudited
financial statements (i) reviewed by independent certified accountants
of recognized national standing and acceptable to the Agent and (ii)
in form satisfactory to the Agent), and the most recent unaudited
consolidated balance sheet of such Person and its Subsidiaries and the
related statements of income and retained earnings for the period
ended on the date of such unaudited statements.
(vi) PAYMENT OF FEES AND EXPENSES, ETC. Evidence that the
Company shall have paid such fees and expenses as the Company shall
have agreed to pay to the Agent in connection herewith, including,
without limitation, the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy, special New York counsel to First Union, and
Fiddler Gonzalez & Rodriguez, special Puerto Rico counsel to First
Union, in connection with the satisfaction of the conditions in this
Section 6.02 and the making of the Loans hereunder in connection with
the relevant Permitted Acquisition (to the extent that statements for
such fees and expenses have been delivered to the Company).
(vii) OTHER DOCUMENTS. Such other documents as the Agent or any
Lender or special New York counsel to First Union may reasonably
request.
6.03 CONDITIONS TO ALL EXTENSIONS OF CREDIT. The effectiveness of
this Agreement (and the amendment and restatement of the Existing Supplemental
Credit Agreement to be effected thereby) and the obligation of the Lenders to
make any Loan or otherwise extend any credit to the Company upon the occasion of
each borrowing hereunder (including any borrowing on the Effective Date) are
subject to the further conditions precedent that, both immediately prior to such
effectiveness and to the making of such Loan and also after giving effect
thereto and to the intended use thereof:
(i) no Default shall have occurred and be continuing; and
CREDIT AGREEMENT
-64-
(ii) the representations and warranties made by the Company in
Section 7 hereof, and by each Obligor in each of the other Loan Documents
to which it is a party, shall be true and complete on and as of the date of
the making of such Loan with the same force and effect 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).
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the first sentence of
this Section 6.03 (both as of the date of such notice and, unless the Company
otherwise notifies the Agent prior to the date of such borrowing, as of the date
of such borrowing).
Section 7. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Agent and the Lenders that (with respect to matters
pertaining to itself and each of its Subsidiaries):
7.01 CORPORATE EXISTENCE. Each of the Company and its Subsidiaries:
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
7.02 FINANCIAL CONDITION. The Company has heretofore furnished to
each of the Lenders the following:
(a) unaudited consolidating balance sheets of the Company and its
Subsidiaries as at December 31, 1996 and the related consolidating
statements of income and operating cash flow for the twelve-month period
ended on said date; and
(b) an audited consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1996 and the related consolidated
statements of income, retained earnings and cash flow of the Company and
its Subsidiaries for the
CREDIT AGREEMENT
-65-
fiscal period ended on said date, with the opinion thereon of Deloitte &
Touche LLP.
All such financial statements fairly present the respective financial condition
of the respective entities as at the respective dates, and the respective
results of operations for the respective periods ended on said respective dates,
all in accordance with generally accepted accounting principles and practices
applied on a consistent basis. None of such respective entities has on the date
hereof any 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 respective balance sheets referred to above. Since December 31, 1996 (with
respect to the Company and each of its Subsidiaries), there has been no material
adverse change in the respective financial condition, operations, business or
prospects of each such entity from that set forth in the respective financial
statements as at such date.
7.03 LITIGATION. Except as disclosed in Schedule V hereto, there are
no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of the Company) threatened against the Company or any of its Subsidiaries that,
if adversely determined could (either individually or in the aggregate) have a
Material Adverse Effect.
7.04 NO BREACH. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of any Obligor, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Company or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument.
7.05 ACTION. Each Obligor has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
each of the Basic Documents to which it is
CREDIT AGREEMENT
-66-
a party; the execution, delivery and performance by each Obligor of each of
the Basic Documents to which it is a party have been duly authorized by all
necessary corporate action on its part (including, without limitation, any
required shareholder approvals); and this Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the Notes
and the other Basic Documents to which it is a party when executed and
delivered by the respective Obligor (in the case of the Notes, for value)
will constitute, its legal, valid and binding obligation, enforceable against
such Obligor in accordance with its terms, except as such enforceability may
be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law). Each Security Document providing collateral security, directly or
indirectly, for the Loans is effective to create in favor of the Agent for
the benefit of the Lenders a legal, valid and enforceable first priority Lien
upon all right, title and interest of the Obligor or Obligors party thereto
in the Property described therein and such Lien has been perfected, except as
otherwise permitted under Section 8.06 hereof or in such Security Document.
7.06 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of the Basic Documents to which it is a party or for
the legality, validity or enforceability hereof or thereof, except for filings
and recordings in respect of the Liens created pursuant to the Security
Documents.
7.07 USE OF CREDIT. None of the Company nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, and no part of the proceeds of the Loans
hereunder will be used to buy or carry any Margin Stock.
7.08 ERISA. Each Plan, and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which the Company
CREDIT AGREEMENT
-67-
would be under an obligation to furnish a report to the Lenders under Section
8.01(e) hereof.
7.09 TAXES. The Company and its Subsidiaries (other than the
Obligors operating in the Commonwealth and Garrido) are members of an affiliated
group of corporations filing consolidated returns for Federal income tax
purposes, of which the Company is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. The Company and its Subsidiaries have
filed all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
Subsidiaries. The charges, accruals and reserves on the books of the Company
and its Subsidiaries in respect of taxes and other governmental charges are, in
the opinion of the Company, adequate. The Company has not given or been
requested to give a waiver of the statute of limitations relating to the payment
of Federal, state, local and foreign taxes or other impositions. Neva Plastics
and Suiza Fruit each hold industrial tax exemption grants entitling each of them
to a 90% exemption from income and property taxes and a 60% exemption from
municipal license taxes. The grant held by Neva Plastics will expire on August
31, 2000 for income tax purposes, on June 30, 2001 for municipal tax purposes
and on January 1, 2000 for property tax purposes. The grant held by Suiza Fruit
will expire on October 12, 2002 for income and property tax purposes and on June
30, 2003 for municipal license tax purposes.
7.10 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
7.12 MATERIAL AGREEMENTS AND LIENS.
(a) Part A of Schedule I hereto is a complete and correct list, as of
the Effective Date, and after giving effect to the transactions contemplated
hereunder to occur on such date, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any
CREDIT AGREEMENT
-68-
extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Company or any of its Subsidiaries, and the aggregate
principal or face amount outstanding or that may become outstanding under
each such arrangement is correctly described in Part A of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list, as of
the Effective Date (and after giving effect to the transactions contemplated
hereunder to occur on such date), of each Lien securing Indebtedness of any
Person and covering any Property of the Company or any of its Subsidiaries that
will continue after the Effective Date, and the aggregate Indebtedness secured
(or that may be secured) by each such Lien and the Property covered by each such
Lien is correctly described in Part B of said Schedule I.
7.13 ENVIRONMENTAL MATTERS. Each of the Company and its Subsidiaries
has obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business as
now being or as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization would not (either individually or in
the aggregate) have a Material Adverse Effect. Each of such permits, licenses
and authorizations is in full force and effect and each of the Company and its
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not (either individually or in the aggregate) have a Material
Adverse Effect.
In addition, except as to matters with respect to which the Company
and its Subsidiaries could not reasonably be expected to incur liabilities in
excess of $1,000,000 in the aggregate:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by the Company or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of the
business of the Company
CREDIT AGREEMENT
-69-
or any of its Subsidiaries or with respect to any generation, treatment,
storage, recycling, transportation, discharge or disposal, or any Release
of any Hazardous Materials generated by the Company or any of its
Subsidiaries.
(b) Neither the Company nor any of its Subsidiaries owns, operates or
leases a treatment, storage or disposal facility requiring a permit under
the Resource Conservation and Recovery Act of 1976, as amended, or under
any comparable state or local statute; and
(i) no polychlorinated biphenyls (PCB's) is or has been
present at any site or facility now or previously owned, operated or
leased by the Company or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has
been present at any site or facility now or previously owned, operated
or leased by the Company or any of its Subsidiaries;
(iii) there are no underground storage tanks, other than
those disclosed in consultant reports provided to the Agent by the
Company or its Subsidiaries, or surface impoundments for Hazardous
Materials, active or abandoned, at any site or facility now or
previously owned, operated or leased by the Company or any of its
Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or
under any site or facility now or previously owned, operated or leased
by the Company or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at,
on or under any site or facility now or previously owned, operated or
leased by the Company or any of its Subsidiaries that would (either
individually or in the aggregate) have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has transported
or arranged for the transportation of any Hazardous Material to any
location that is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion
CREDIT AGREEMENT
-70-
on the NPL by the Environmental Protection Agency in the Comprehensive
Environmental Response and Liability Information System, as provided for
by 40 C.F.R. Section 300.5 ("CERCLIS"), or on any similar state or local
list or that is the subject of Federal, state or local enforcement actions
or other investigations that may lead to Environmental Claims against the
Company or any of its Subsidiaries.
(d) No Hazardous Material generated by the Company or any of its
Subsidiaries has been recycled, treated, stored, disposed of or Released by
the Company or any of its Subsidiaries at any location other than those
listed in Schedule II hereto.
(e) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Company or any of its
Subsidiaries and no site or facility now or previously owned, operated or
leased by the Company or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring
investigation or clean-up.
(f) No Liens have arisen under or pursuant to any Environmental Laws
on any site or facility owned, operated or leased by the Company or any of
its Subsidiaries, and no government action has been taken or is in process
that could subject any such site or facility to such Liens and neither the
Company nor any of its Subsidiaries would be required to place any notice
or restriction relating to the presence of Hazardous Materials at any site
or facility owned by it in any deed to the real property on which such site
or facility is located.
(g) All environmental investigations, studies, audits, tests, reviews
or other analyses conducted by or that are in the possession of the Company
or any of its Subsidiaries in relation to facts, circumstances or
conditions at or affecting any site or facility now or previously owned,
operated or leased by the Company or any of its Subsidiaries and that could
result in a Material Adverse Effect have been made available to the
Lenders.
7.14 CAPITALIZATION.
(a) As of the Effective Date, the authorized capital stock of the
Company consists of 101,000,000 shares, consisting of 100,000,000 shares of
common stock, par value
CREDIT AGREEMENT
-71-
$0.01 per share, and 1,000,000 shares of preferred stock, par value $0.01
per share;
(b) As of July 15, 1997, the Company has 15,298,718 shares of issued
and outstanding common stock, and all of such issued shares are duly and
validly issued and outstanding and are not held in treasury;
(c) As of the Effective Date, the Company has no issued or
outstanding preferred stock;
(d) As of July 15, 1997, except for (i) options to purchase 369,838
shares of common stock granted under the Company's Exchange Stock Option
and Restricted Stock Plan, (ii) options to purchase up to 1,021,748 shares
of common stock granted (1,020,708) or available (1,040) for future grants
under the Company's 1995 Stock Option and Restricted Stock Plan, (iii)
options to purchase up to 1,150,000 shares of common stock granted
(913,200) or available (236,800) for future grants under the Company's 1997
Stock Option and Restricted Stock Plan, and (iv) up to 250,000 shares of
common stock available for future purchase under the Company's 1997
Employee Stock Purchase Plan, there are no outstanding Equity Rights with
respect to the Company; and
(e) As of the Effective Date, there are no outstanding obligations of
the Company or any of its Subsidiaries to repurchase, redeem, or otherwise
acquire any shares of capital stock of the Company or any of its
Subsidiaries or to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of the Company or any of its Subsidiaries,
except for the right of the holders of certain warrants for the purchase of
stock of Franklin Plastics, Inc., a Delaware corporation, to put such stock
or warrants to the issuer thereof or the Company.
7.15 SUBSIDIARIES, ETC.
(a) Set forth in Part A of Schedule III hereto is a complete and
correct list, as of the date hereof, of all of the Subsidiaries of the Company,
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of Schedule III hereto, (x) each of
the
CREDIT AGREEMENT
-72-
Company and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part A of Schedule III hereto, (y) all of the issued and outstanding capital
stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
(b) Set forth in Part B of Schedule III hereto is a complete and
correct list, as of the date hereof, of all Investments (other than Investments
disclosed in Part A of said Schedule III hereto) held by the Company or any of
its Subsidiaries in any Person and, for each such Investment, (x) the identity
of the Person or Persons holding such Investment and (y) the nature of such
Investment. Except as disclosed in Part B of Schedule III hereto, each of the
Company and its Subsidiaries owns, free and clear of all Liens (other than Liens
created pursuant to the Security Documents), all such Investments.
(c) None of the Subsidiaries of the Company is, on the date hereof,
subject to any indenture, agreement, instrument or other arrangement of the type
described in Section 8.19(b) hereof.
7.16 TITLE TO ASSETS. The Company owns and has on the date hereof,
and will own and have on the Effective Date, good and marketable title (subject
only to Liens permitted by Section 8.06 hereof) to the Properties shown to be
owned in the most recent financial statements referred to in Section 7.02 hereof
(other than Properties disposed of in the ordinary course of business or
otherwise permitted to be disposed of pursuant to Section 8.05 hereof). The
Company owns and has on the date hereof, and will own and have on the Effective
Date, good and marketable title to, and enjoys on the date hereof, and will
enjoy on the Effective Date, peaceful and undisturbed possession of, all
Properties (subject only to Liens permitted by Section 8.06 hereof) that are
necessary for the operation and conduct of its businesses.
7.17 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole do not contain any untrue statement of material fact or
omit to state any material fact
CREDIT AGREEMENT
-73-
necessary to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Company and its
Subsidiaries to the Agent and the Lenders in connection with this Agreement
and the other Loan Documents and the transactions contemplated hereby and
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact known to the
Company that could have a Material Adverse Effect that has not been disclosed
herein, in the other Loan Documents or in a report, financial statement,
exhibit, schedule, disclosure letter or other writing furnished to the
Lenders for use in connection with the transactions contemplated hereby or
thereby.
7.18 REAL PROPERTY. Set forth on Schedule IV attached hereto is a
list, as of the Effective Date of all of the real property interests held by the
Company and its Subsidiaries, indicating in each case whether the respective
Property is owned or leased, the identity of the owner or lessee and the
location of the respective Property.
7.19 SOLVENCY. As of the Effective Date and after giving effect to
the initial Loans hereunder and the other transactions contemplated hereby,
(a) the aggregate value of all Properties of the Company and its Subsidiaries at
their present fair saleable value (i.e., the amount that may be realized within
a reasonable time, considered to be six months to one year, either through
collection or sale at the regular market value, conceiving the latter as the
amount that could be obtained for the Property in question within such period by
a capable and diligent businessman from an interested buyer who is willing to
purchase under ordinary selling conditions), exceeds the amount of all the debts
and liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of the Company and its Subsidiaries, (b) the Company and its
Subsidiaries will not, on a consolidated basis, have unreasonably small capital
with which to conduct their business operations as heretofore conducted and
(c) the Company and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
Section 8. COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Lenders and the Agent that, so long as any Commitment or Loan is
outstanding and until payment in full of all amounts payable by the Company
hereunder:
CREDIT AGREEMENT
-74-
8.01 FINANCIAL STATEMENTS, ETC. The Company shall deliver, or shall
cause to be delivered, to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of each fiscal year of the Company,
consolidated statements of income, retained earnings and cash flow of the
Company and its Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet of the Company and its Subsidiaries as
at the end of such period, setting forth in each case in comparative form
the corresponding consolidated figures for the corresponding periods in the
preceding fiscal year, accompanied by a certificate of a Responsible
Financial Officer of the Company, which certificate shall state that said
consolidated financial statements fairly present the consolidated financial
condition and results of operations of the Company and its Subsidiaries, in
accordance with generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to normal year-end
audit adjustments);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, consolidated statements of income,
retained earnings and cash flow of the Company and its Subsidiaries for
such fiscal year and the related consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal year, setting forth in
each case 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 said consolidated financial statements
fairly present the consolidated financial condition and results of
operations of the Company and its Subsidiaries as at the end of, and for,
such fiscal year in accordance with generally accepted accounting
principles, 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;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Commission or any national securities
exchange;
CREDIT AGREEMENT
-75-
(d) promptly upon mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements
so mailed;
(e) as soon as possible, and in any event within ten days after the
Company 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 Financial Officer of the
Company setting forth details respecting such event or condition and the
action, if any, that the Company or its 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 Company or an ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, 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 the
Company or an 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 the Company 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;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Company or any ERISA Affiliate that results
in liability under Section 4201
CREDIT AGREEMENT
-76-
or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the
Company 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 the Company 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 the Company or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with the provisions
of said Sections;
(f) [Intentionally left blank];
(g) promptly after the Company knows or has reason to believe that
any Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Company has taken or
proposes to take with respect thereto;
(h) promptly upon receipt thereof, copies of all management letters
and other material reports which are submitted to the Board of Directors of
the Company or any of its Subsidiaries by their independent certified
public accountants in connection with any annual audit of the Company
and/or any such Subsidiary by such accountants;
(i) as soon as available and in any event on or before December 31 of
each fiscal year, a budget for the next following fiscal year setting forth
for each Subsidiary of the Company and for the Company and its Subsidiaries
as a whole, anticipated income, expense and capital expenditure items for
each quarter during such fiscal year, together with pro forma unaudited
balance sheets of the Company and its Subsidiaries and the related pro
forma statements of retained earnings, and quarterly, concurrently with the
delivery of the financial statements for such fiscal year pursuant to
clause (a) above, a report setting forth a
CREDIT AGREEMENT
-77-
detailed comparison of actual performance to the budget referred to above;
and
(j) from time to time such other information regarding the financial
condition, operations, business or prospects of the Company 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 Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to clause (a) above, a certificate of a
Responsible Financial Officer of the Company (i) to the effect that no Default
has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the action
that the Company has taken or proposes to take with respect thereto) and
(ii) setting forth in reasonable detail the computations necessary to determine
whether the Company is in compliance with Sections 8.10, 8.11, 8.12 and 8.13
hereof as of the end of the respective quarterly fiscal period or fiscal year.
8.02 LITIGATION. The Company will promptly give to each Lender
notice of all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting the Company or any of
its Subsidiaries, except proceedings that, if adversely determined, would not
(either individually or in the aggregate) have a Material Adverse Effect.
Without limiting the generality of the foregoing, the Company will give to each
Lender notice of the assertion of any Environmental Claim by any Person against,
or with respect to the activities of, the Company 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.
8.03 EXISTENCE, ETC. The Company will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 8.03 shall prohibit any transaction expressly permitted under
Section 8.05 hereof);
CREDIT AGREEMENT
-78-
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could (either individually or in the
aggregate) have a Material Adverse Effect;
(c) 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
Property 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;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Agent, during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by such
Lender or the Agent (as the case may be).
8.04 INSURANCE. The Company will, and will cause each of its
Subsidiaries to, 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 corporations. The Company will in any
event maintain (with respect to itself and each of its Subsidiaries):
(1) Casualty Insurance -- insurance against loss or damage covering
all of the tangible real and personal Property and improvements of the
Company and each of its Subsidiaries by reason of any Peril (as defined
below) in such amounts (subject to such deductibles as shall be
satisfactory to the Majority Lenders) as shall be reasonable and customary
and sufficient to avoid the insured named therein from becoming a
co-insurer of any loss under such
CREDIT AGREEMENT
-79-
policy but in any event in an amount (i) in the case of fixed assets and
equipment (including, without limitation, vehicles), at least equal to
100% of the actual replacement cost of such assets (including, without
limitation, foundation, footings and excavation costs), subject to
deductibles as aforesaid (PROVIDED that recovery limits may be applicable
to losses caused by flood or earthquake) and (ii) in the case of inventory,
not less than the fair market value thereof, subject to deductibles as
aforesaid.
(2) Automobile Liability Insurance for Bodily Injury and Property
Damage -- insurance against liability for bodily injury and property damage
in respect of all vehicles (whether owned, hired or rented by the Company
or any of its Subsidiaries) at any time located at, or used in connection
with, its Properties or operations in such amounts as are then customary
for vehicles used in connection with similar Properties and businesses, but
in any event to the extent required by applicable law.
(3) Comprehensive General Liability Insurance -- insurance against
claims for bodily injury, death or Property damage occurring on, in or
about the Properties (and adjoining streets, sidewalks and waterways) of
the Company and its Subsidiaries, in such amounts as are then customary for
Property similar in use in the jurisdictions where such Properties are
located.
(4) Workers' Compensation Insurance -- workers' compensation
insurance (including, without limitation, Employers' Liability Insurance)
to the extent required by applicable law.
(5) Product Liability Insurance -- insurance against claims for
bodily injury, death or Property damage resulting from the use of products
sold by the Company or any of its Subsidiaries in such amounts as are then
customarily maintained by responsible persons engaged in businesses similar
to that of the Company and its Subsidiaries.
(6) Business Interruption Insurance -- insurance against loss of
operating income (up to an aggregate amount equal to $15,000,000 and
subject to a deductible, or self-insured amount, not in excess of $500,000)
by reason of any Peril.
(7) Other Insurance -- such other insurance, including, without
limitation, War-Risk Insurance when and
CREDIT AGREEMENT
-80-
to the extent obtainable from the United States Government, in each case
as generally carried by owners of similar Properties in the jurisdictions
where such Properties are located, in such amounts and against such risks
as are then customary for Property similar in use.
Such insurance shall be written by financially responsible companies selected by
the Company and having an A. M. Best rating of "A-" or better and being in a
financial size category of VIII or larger, or by other companies acceptable to
the Majority Lenders, and (other than workers' compensation) shall name the
Agent as loss payee (to the extent covering risk of loss or damage to tangible
property) and as an additional named insured as its interests may appear (to the
extent covering any other risk). Each policy referred to in this Section 8.04
shall provide that it will not be canceled or reduced, or allowed to lapse
without renewal, except after not less than 30 days' notice to the Agent and
shall also provide that the interests of the Agent and the Lenders shall not be
invalidated by any act or negligence of the Company or any Person having an
interest in any Property covered by the Mortgages which, directly or indirectly,
secure the Loans nor by occupancy or use of any such Property for purposes more
hazardous than permitted by such policy nor by any foreclosure or other
proceedings relating to such Property. The Company will advise the Agent
promptly of any policy cancellation, reduction or amendment.
On or before the Effective Date, the Company will deliver to the Agent
certificates of insurance satisfactory to the Agent evidencing the existence of
all insurance required to be maintained by the Company hereunder setting forth
the respective coverage, limits of liability, carrier, policy number and period
of coverage (and attaching original copies of any policies with respect to
casualty insurance). Thereafter, each year the Company will deliver to the
Agent certificates of insurance evidencing that all insurance required to be
maintained by the Company 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. In addition, the Company will not modify any of the
provisions of any policy with respect to casualty insurance without delivering
the original copy of the endorsement reflecting such modification to the Agent
accompanied by (if requested by the Agent) a written report of a firm of
independent insurance brokers of nationally recognized standing, stating that,
in their opinion, such policy (as so modified) adequately protects the interests
of the Lenders and the Agent, is in compliance with the provisions of this
Section 8.04, and is comparable in all respects with insurance carried by
responsible
CREDIT AGREEMENT
-81-
owners and operators of Properties similar to those covered by the
Mortgages which, directly or indirectly, secure the Loans. The Company will not
obtain or carry separate insurance concurrent in form or contributing in the
event of loss with that required by this Section 8.04 unless the Agent is the
named insured thereunder, with loss payable as provided herein. The Company
will immediately notify the Agent whenever any such separate insurance is
obtained and shall deliver to the Agent the certificates evidencing the same.
Without limiting the obligations of the Company under the foregoing
provisions of this Section 8.04, in the event the Company shall fail to maintain
in full force and effect insurance as required by the foregoing provisions of
this Section 8.04, then the Agent may, but shall have no obligation so to do,
procure insurance covering the interests of the Lenders and the Agent in such
amounts and against such risks as the Agent (or the Majority Lenders) shall deem
appropriate, and the Company shall reimburse the Agent in respect of any
premiums paid by the Agent in respect thereof.
For purposes hereof, the term "PERIL" shall mean, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Company and its Subsidiaries are
located.
8.05 PROHIBITION OF FUNDAMENTAL CHANGES. (a) The Company will not,
nor will it permit any of its Subsidiaries to, enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution).
(b) The Company will not, nor will it permit any of its Subsidiaries
to, acquire any business or Property from, or capital stock of, or be a party to
any acquisition of, any Person except:
(i) for purchases of inventory and other Property to be sold or used
in the ordinary course of business;
(ii) Investments permitted under Section 8.08 hereof;
(iii) [Intentionally left blank]; and
CREDIT AGREEMENT
-82-
(iv) Permitted Acquisitions and acquisitions permitted under Section
8.05(b)(iv) of the Existing Credit Agreement.
(c) The Company will not, nor will it permit any of its Subsidiaries
to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or
a series of transactions, any part of its business or Property, whether now
owned or hereafter acquired (including, without limitation, receivables and
leasehold interests), but excluding:
(i) any Excluded Disposition;
(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 so long as the aggregate
amount thereof sold in any single fiscal year by the Company and its
Subsidiaries shall not have a fair market value in excess of $1,000,000;
(iii) any inventory or other Property sold or disposed of in the
ordinary course of business and on ordinary business terms; and
(iv) other Property so long as the aggregate amount thereof sold or
otherwise disposed of in any single fiscal year by the Company and its
Subsidiaries shall not have a fair market value in excess of $10,000,000.
(d) Notwithstanding the foregoing provisions of this Section 8.05, so
long as no Default shall have occurred and be continuing and, after giving
effect to any of the succeeding transactions, no Default would exist hereunder,
and so long as the Liens created under the Security Documents continue to be in
effect:
(i) any Subsidiary of the Company may be merged or consolidated with
or into: (x) the Company if the Company shall be the continuing or
surviving corporation or (y) any other such Subsidiary; and
(ii) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Company or a Subsidiary of the Company.
CREDIT AGREEMENT
-83-
8.06 LIMITATION ON LIENS. The Company will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule I hereto;
(c) 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 Company or
the affected Subsidiaries, as the case may be, in accordance with GAAP;
(d) 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;
(e) Liens securing judgments but only to the extent for an amount and
for a period not resulting in an Event of Default under Section 9(i)
hereof;
(f) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(g) deposits or pledges to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(h) 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 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 Company or any
of its Subsidiaries;
CREDIT AGREEMENT
-84-
(i) Liens upon tangible personal Property acquired after the date
hereof (by purchase, construction or otherwise), or upon other property
acquired after the date hereof as a Capital Expenditure, by the Company or
any of its Subsidiaries, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost of such Property; PROVIDED that (i) no such Lien shall extend to or
cover any Property of the Company or such Subsidiary other than the
Property so acquired, (ii) 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 Financial Officer of the Company) of such
Property at the time it was acquired, and (iii) the principal amount of all
Indebtedness (other than Indebtedness permitted by Section 8.07(d) hereof)
secured by such Liens shall not exceed $1,000,000 in the aggregate;
(j) 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 Company or any of its Subsidiaries in favor of the lessor
created at the inception of the lease transaction, securing obligations of
the Company 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;
(k) Liens of sellers or creditors of sellers of farm products
encumbering such farm products when sold to any of the Obligors 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 Obligors;
(l) protective Uniform Commercial Code filings with respect to
personal Property leased by any Obligor; and
(m) any extension, renewal or replacement of the foregoing, PROVIDED,
however, that the Liens permitted hereunder shall not be spread to cover
any additional Indebtedness or Property.
CREDIT AGREEMENT
-85-
8.07 INDEBTEDNESS. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder, under the other Loan
Documents and under the Existing Credit Agreement;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule I hereto;
(c) Indebtedness of Subsidiaries of the Company to the Company or to
other Subsidiaries of the Company or of the Company to any of its
Subsidiaries to the extent permitted under Section 8.08(e) or (g) hereof;
(d) Indebtedness (including Capital Lease Obligations) incurred to
finance the purchase of equipment, and other Capital Lease Obligations, not
to exceed $20,000,000 in the aggregate outstanding at any time;
(e) Indebtedness in respect of an irrevocable letter of credit issued
by a financial institution located in the State of Nevada in favor of the
State of Nevada Department of Insurance for the account of the Company or
any of its Subsidiaries, and any extensions or renewals thereof, in an
aggregate amount not exceeding $5,000,000 at any one time outstanding;
(f) Indebtedness in respect of certain irrevocable letters of credit
outstanding on the date hereof issued by Fleet National Bank or Bank
Boston, N.A. and described in Part C of Schedule I hereto; and
(g) additional Indebtedness of the Company and its Subsidiaries up to
but not exceeding $5,000,000 at any one time outstanding.
8.08 INVESTMENTS. The Company will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding as of the Effective Date and identified
in Part B of Schedule III hereto (including, without limitation,
Indebtedness of any Subsidiary of the Company to the Company or any other
Subsidiary of the Company);
CREDIT AGREEMENT
-86-
(b) operating deposit accounts with depository institutions;
(c) Permitted Investments;
(d) Interest Rate Protection Agreements entered into pursuant to
Section 8.15 hereof;
(e) (i) Investments permitted under Section 8.05(b) hereof and (ii)
indemnities executed in connection with the sale of Investment Tax Credits;
(f) Investments by the Company in the capital stock of its
Subsidiaries to the extent outstanding as of the Effective Date;
(g) Investments (other than of a type specified in clause (f) above,
other than the Investments permitted under clause (a) above and Investments
in Subsidiaries made in connection with Investments pursuant to clause
(e)(i) above) by the Company in its Subsidiaries or by any Subsidiary of
the Company in the Company or any other Subsidiary of the Company;
(h) loans and advances to employees;
(i) deposits to secure bids, tenders, utilities, vendors, leases,
statutory obligations, surety and appeal bonds and other deposits of like
nature arising in the ordinary course of business not exceeding $2,000,000
in the aggregate;
(j) additional Investments up to but not exceeding $2,000,000 in the
aggregate; and
(k) any guarantees permitted under Section 8.07 hereof.
8.09 RESTRICTED PAYMENTS.
(a) DIVIDEND PAYMENTS. The Company will not, nor will it permit any
of its Subsidiaries to, declare or make any Dividend Payment at any time,
PROVIDED that the Company may redeem or retire shares of its common stock from
any of its officers in connection with his or her voluntary departure,
dismissal, retirement or death, PROVIDED that (i) at the time of such redemption
or retirement no Default shall have occurred and be continuing and (ii) the
aggregate amount of all cash paid in
CREDIT AGREEMENT
-87-
respect of all such shares so redeemed or repurchased does not exceed
$2,000,000 in any fiscal year. Nothing herein shall be deemed to prohibit the
payment of dividends by any Subsidiary of the Company to the Company or any
other Subsidiary of the Company.
(b) MANAGEMENT FEES. The Company will not, nor will it permit any of
its Subsidiaries to, accrue or pay any Management Fees to any Person (including,
without limitation, any Affiliates), other than the Company or any of its
Subsidiaries.
8.10 LEVERAGE RATIO. The Company will not permit the Leverage Ratio
to exceed the following ratios for the following respective periods:
Period Ratio
------ -----
From the Effective Date 4.25 to 1
through and including
December 31, 1997
From January 1, 1998 4.00 to 1
through and including
March 31, 1998
From April 1, 1998 3.75 to 1
through and including
June 30, 1998
From and after July 1, 1998 3.50 to 1
8.11 MINIMUM NET WORTH. The Company will not permit its Net Worth at
any time to be less than $140,000,000 plus 50% of net income for all preceding
fiscal quarters (without including the results of any fiscal quarter in respect
of which there was a net loss) commencing with the fiscal quarter beginning July
1, 1997. The amount of Net Worth set forth above shall be increased by 75% of
the amount by which the "total stockholders equity" of the Company is increased
as a result of any public or private offering of common stock of the Company
after July 1, 1997. Promptly upon consummation of each such public or private
offering, the Company shall notify the Agent in writing of the amount of such
increase in total stockholders equity.
8.12 FIXED CHARGES RATIO. The Company will not permit the Fixed
Charges Ratio to be less than 1.10 to 1 at any time.
CREDIT AGREEMENT
-88-
8.13 INTEREST COVERAGE RATIO. The Company will not permit the
Interest Coverage Ratio to be less than 3.00 to 1 at any time.
8.14 [Intentionally left blank]
8.15 INTEREST RATE PROTECTION AGREEMENTS. The Company agrees to
provide to the Agent on or before January 31, 1998 evidence that it has in full
force and effect Interest Rate Protection Agreements in form and substance
satisfactory to the Agent that enable the Company to protect against floating
interest rates as to a notional principal amount at least equal to 50% of the
maximum aggregate principal amount of the Facility B Loans and Facility D Loans
outstanding from time to time during the period from January 31, 1998 to and
including the date three years after the Effective Date.
8.16 LINES OF BUSINESS. Neither the Company nor any of its
Subsidiaries will engage to any substantial extent in any line or lines of
business activity other than operations involved in the manufacture, processing
or distribution of ice, ice-related products, coffee, dairy products or bottled
water which is similar to the water products that are currently processed,
bottled and distributed from the dairy facilities of the Company and/or its
Subsidiaries, or from and after the Bernon Acquisition, the manufacture of blow
molded plastic bottles, or the lines of business conducted by the Company or any
of its Subsidiaries as of the Effective Date.
8.17 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by
this Agreement, the Company will not, nor will it permit any of its Subsidiaries
to, directly or indirectly: (a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any Property to an
Affiliate; (c) merge into or consolidate with or purchase or acquire Property
from an Affiliate; 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 Company or any of its Subsidiaries and receive reasonable
compensation for his or her services in such capacity and (ii) the Company and
its Subsidiaries may enter into transactions (other than extensions of credit by
the Company or any of its Subsidiaries to an Affiliate) if the monetary or
business consideration arising therefrom would be substantially as advantageous
to the Company
CREDIT AGREEMENT
-89-
and its Subsidiaries as the monetary or business consideration that would
obtain in a comparable transaction with a Person not an Affiliate.
8.18 USE OF PROCEEDS. The Company will use the proceeds of the
Facility C Loans only to make Permitted Acquisitions and to finance a portion of
the Bernon Acquisition. The Company will use the proceeds of the Facility D
Loans to finance a portion of the Bernon Acquisition. The Company will use the
proceeds of all Facility C Loans and Facility D Loans hereunder in compliance
with all applicable legal and regulatory requirements. Neither the Agent nor
any Lender shall have any responsibility as to the use of any of such proceeds.
8.19 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES; ADDITIONAL
MORTGAGED PROPERTIES.
(a) The Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that each of
its Subsidiaries is a Wholly Owned Subsidiary unless otherwise permitted or
agreed in connection with a Permitted Acquisition. In the event that any
additional shares of stock shall be issued by any Subsidiary, the respective
Obligor agrees forthwith to deliver to the Agent pursuant to the relevant
Security Document the certificates evidencing such shares of stock, accompanied
by undated stock powers executed in blank and to take such other action as the
Agent shall request to perfect the security interest created therein pursuant to
such Security Document.
(b) The Company will not permit any of its Subsidiaries to enter
into, after the date of this Agreement, any indenture, agreement, instrument or
other arrangement (other than the Garrido Negative Pledge Agreement) that,
directly or indirectly, prohibits or restrains, or has the effect of prohibiting
or restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property.
(c) The Company will take such action, and will cause each of its
Subsidiaries (other than Garrido) to take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Company (other than
Garrido) are party to, as obligors, the Existing Subsidiary Guarantee and
Security Agreement or a Supplemental Subsidiary Guarantee and Security
Agreement. Without limiting the generality of the foregoing, in
CREDIT AGREEMENT
-90-
the event that the Company or any of its Subsidiaries shall form or acquire
any new Subsidiary, the Company or the respective Subsidiary will cause such
new Subsidiary to (i) become a party to the Existing Subsidiary Guarantee and
Security Agreement or a Supplemental Subsidiary Guarantee and Security
Agreement pursuant to a written instrument in form and substance satisfactory
to the Agent, (ii) if requested by the Majority Lenders, cause such new
Subsidiary to execute and deliver one or more Mortgages, in substantially the
form of Exhibits C or D hereto (with such changes thereto as the Agent may
reasonably request), covering the real Property and/or fixtures of such
Subsidiary, and (iii) to deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents relating to the foregoing as
is consistent with those to be delivered by each Supplemental Guarantor
pursuant to Section 6.02 hereof, or as any Lender or the Agent shall have
reasonably requested.
(d) Without affecting the obligations of the Company under any
provision prohibiting such action hereunder, in the event that the Company or
any of its Subsidiaries (other than Garrido) shall acquire any business or
Property after the date hereof, the Company shall, or shall cause such
Subsidiary to (i) if requested by the Majority Lenders, execute and deliver one
or more Mortgages, substantially in the form of Exhibits C or D hereto (with
such changes as the Agent may reasonably request), covering the real property
and/or fixtures so acquired, (ii) execute and deliver to the Agent for filing,
appropriately completed Uniform Commercial Code financing statements or other
filings or instruments as the Agent shall request in order to perfect the
security interest in favor of the Agent for the benefit of the Lenders in such
Property so acquired and (iii) deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents relating to the
foregoing as is consistent with those to be delivered by each Supplemental
Guarantor pursuant to Section 6.02 hereof, or as any Lender or the Agent shall
have reasonably requested.
8.20 MODIFICATIONS OF CERTAIN DOCUMENTS. Except in connection with
any transaction expressly permitted hereunder, the Company will not, nor will it
permit any of its Subsidiaries to, consent to any modification, supplement or
waiver of any of the provisions of any agreement, instrument or other document
evidencing or relating to the charter or by-laws of the Company or any of its
Subsidiaries, in each case, without the prior consent of the Agent (with the
approval of the Majority Lenders). Without limiting the requirement for consent
as provided in the immediately preceding sentence, the Company will furnish to
the Agent a copy of each such modification, supplement or waiver
CREDIT AGREEMENT
-91-
promptly upon the effectiveness thereof (and the Agent will promptly furnish a
copy thereof to each Lender).
8.21 FURTHER ASSURANCES. As and to the extent requested from time to
time by the Agent or the Majority Lenders, each Supplemental Guarantor operating
in the Commonwealth will grant to the Agent, for the benefit of the Lenders, a
Lien in respect of any Property owned by such Supplemental Guarantor operating
in the Commonwealth. Such Lien shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Agent (collectively, the
"ADDITIONAL PUERTO RICO SECURITY DOCUMENTS") and shall constitute valid and
enforceable perfected liens superior to and prior to the rights of all other
Persons and subject to no other Liens except for the Liens permitted pursuant to
Section 8.06 hereof. The Additional Puerto Rico Security Documents or other
instruments related thereto shall be duly recorded or filed in such manner and
in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Agent for the benefit of the Lenders required
to be granted pursuant to the Additional Puerto Rico Security Documents and all
taxes, fees and other charges payable in connection therewith shall be paid in
full.
8.22 PUERTO RICO SECURITY DOCUMENTS. The Company shall, within 15
days of the Effective Date, (i) execute such amendments to the Puerto Rico
Security Documents as reasonably requested by the Agent, (ii) duly file such
amendments with the appropriate filing offices in Puerto Rico and (iii) pay all
filing fees in connection therewith.
Section 9. EVENTS OF DEFAULT. If one or more of the following events
(herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Company shall: (i) default in the payment of any principal
of any Loan when due (whether at stated maturity or at mandatory
prepayment); or (ii) default in the payment of any interest on any Loan,
any fee or any other amount payable by it hereunder or under any other Loan
Document or under the Existing Credit Agreement when due and such default
shall have continued unremedied for three or more Business Days; or
(b) The Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $500,000 or more, or in the payment when due of
any amount under any Interest Rate Protection Agreement; or any event
CREDIT AGREEMENT
-92-
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness or any event specified in any Interest
Rate Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both) to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities evidencing such
Indebtedness trade at a level specified in relation to the par value
thereof or, in the case of an Interest Rate Protection Agreement, to permit
the payments owing under such Interest Rate Protection Agreement to be
liquidated or any "Event of Default" (as defined in the Existing Credit
Agreement) shall occur and be continuing; or
(c) Any representation, warranty or certification made or deemed made
herein or in any other Loan Document (or in any modification or supplement
hereto or thereto) by any Obligor, or any certificate furnished to any
Lender or the Agent pursuant to the provisions hereof or thereof, shall
prove to have been false or misleading as of the time made or furnished in
any material respect; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 8.01(g), 8.05, 8.06, 8.07, 8.08, 8.09,
8.10, 8.11, 8.12, 8.13, 8.15, 8.16, 8.17, 8.19, 8.21 or 8.22 hereof; or the
Company shall default in the performance of any of its other obligations in
this Agreement and such default shall continue unremedied for a period of
30 or more days after notice thereof to the Company by the Agent or any
Lender (through the Agent); or
(e) The Company shall default in the performance of any of its
obligations under Section 4.02 of the Security Agreement; any Obligor party
to the Existing Subsidiary Guarantee and Security Agreement or any
Supplemental Subsidiary Guarantee and Security Agreement shall default in
the performance of any of its obligations under Section 2 or 5.02 thereof;
or any Obligor shall default in the performance of any of its other
obligations in any Loan Document (other than this Agreement) to which it is
party and such default shall continue unremedied for a period of 30 or more
days after notice thereof to the Company by the Agent or any Lender
(through the Agent); or
CREDIT AGREEMENT
-93-
(f) The Company or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become
due; or
(g) The Company or any of its Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code (or such similar laws) or (vi) take any
corporate action for the purpose of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the application
or consent of the Company or the relevant Subsidiary affected thereby, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Company or such
Subsidiary, as the case may be, or of all or any substantial part of its
Property, or (iii) similar relief in respect of such Company or such
Subsidiary, as the case may be, under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against the Company or any of its Subsidiaries
shall be entered in an involuntary case under the Bankruptcy Code; or
(i) A final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate (exclusive of judgment amounts fully bonded
or covered by insurance where the surety or the insurer, as the case may
be, has admitted liability in respect of such judgment) shall be rendered
by one or more courts, administrative tribunals or other bodies having
jurisdiction against the Company or any of its
CREDIT AGREEMENT
-94-
Subsidiaries and the same shall not be discharged (or provision shall not
be made for such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and the Company
or any such Subsidiary, as the case may be, shall not, within said period
of 30 days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution thereof
to be stayed during such appeal; or
(j) An event or condition specified in Section 8.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
PBGC (or any combination of the foregoing) that, in the determination of
the Majority Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect; or
(k) A reasonable basis shall exist for the assertion against the
Company or any of its Subsidiaries, or any predecessor in interest of the
Company or any of its Subsidiaries, of (or there shall have been asserted
against the Company or any of its Subsidiaries) an Environmental Claim
that, in the judgment of the Majority Lenders, is reasonably likely to be
determined adversely to the Company 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 Company 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
(l) Any of the Subsidiaries of the Company shall cease to be a Wholly
Owned Subsidiary of the Company; or during any period of 25 consecutive
calendar months, a majority of the Board of Directors of the Company shall
no longer be composed of individuals (i) who were members of said Board on
the first day of such period or (ii) whose election or nomination to said
Board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of said Board; or any Person or group of Persons acting in concert, other
than Mr. Gregg L. Engles or any other shareholder of the Company as of the
Effective Date, shall at any time own
CREDIT AGREEMENT
-95-
or control, directly or indirectly, 20% or more of the Company's voting
capital stock; or
(m) The Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on any material portion of the
collateral intended to be covered thereby (to the extent perfection by
filing, registration, recordation or possession is required herein or
therein) in favor of the Agent, free and clear of all other Liens (other
than Liens permitted under Section 8.06 hereof or under the respective
Security Documents), or, except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the enforceability
thereof shall be contested by any Obligor.
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (g) or (h) of this Section 9 with respect to any Obligor, the Agent may
(and, if requested by the Majority Lenders shall), by notice to the Company,
terminate the Commitments and/or declare the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts payable by the
Obligors hereunder, under the other Loan Documents and under the Notes
(including, without limitation, any amounts payable under Section 5.05 hereof)
to be forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Obligor; and (2) in the
case of the occurrence of an Event of Default referred to in clause (g) or (h)
of this Section 9 with respect to any Obligor, the Commitments shall
automatically be terminated and the principal amount then outstanding of, and
the accrued interest on, the Loans and all other amounts payable by the Company
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 hereof) shall automatically become immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by each Obligor.
Section 10. THE AGENT.
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms of this Agreement and of the other Loan Documents,
together with such other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 10.05
CREDIT AGREEMENT
-96-
and the first sentence of Section 10.06 hereof shall include reference to its
affiliates and its own and its affiliates' officers, directors, employees and
agents): (a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Loan Documents, and shall not by
reason of this Agreement or any other Loan Document be a trustee for any
Lender; (b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any of them under, this Agreement or any
other Loan Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any Note or any other Loan
Document or any other document referred to or provided for herein or therein
or for any failure by the Company or any other Person to perform any of its
obligations hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under any other
Loan Document; and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Loan Document or under
any other document or instrument referred to or provided for herein or therein
or in connection herewith or therewith, except for its own gross negligence or
willful misconduct. The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents
or attorneys-in-fact selected by it in good faith. The Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have
been filed with the Agent.
10.02 RELIANCE BY AGENT. The Agent shall be entitled to rely upon
any certification, notice or other communication (including, without limitation,
any thereof by telephone, telecopy, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan Document,
the Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Majority Lenders or, if provided herein, in accordance with the instructions
given by the Supermajority Lenders or by all of the Lenders as is required in
such circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
CREDIT AGREEMENT
-97-
10.03 DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default unless the Agent has received notice from
a Lender or any Obligor specifying such Default and stating that such notice is
a "Notice of Default". In the event that the Agent receives such a notice of
the occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall (subject to Section 10.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders,
PROVIDED that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Majority Lenders, or all of the
Lenders.
10.04 RIGHTS AS A LENDER. With respect to its Commitment and the
Loans made by it, First Union (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. First Union
(and any successor acting as Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, make
investments in and generally engage in any kind of banking, trust or other
business with the Obligors (and any of their Subsidiaries or Affiliates) as if
it were not acting as the Agent, and First Union and its affiliates may accept
fees and other consideration from the Obligors for services in connection with
this Agreement or otherwise without having to account for the same to the
Lenders.
10.05 INDEMNIFICATION. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 11.03 hereof, but without limiting the
obligations of the Company under said Section 11.03, and including in any event
any payments under any indemnity that the Agent is required to issue to any bank
referred to in Section 4.02 of the Security Agreement and Section 5.02 of each
Supplemental Subsidiary Guarantee and Security Agreement to which remittances in
respect of Accounts, as defined in each such agreement, are to be made) ratably
in accordance with the aggregate principal amount of the Loans held by the
Lenders (or, if no Loans are at the time outstanding, ratably in accordance with
their respective Commitments), for any and all
CREDIT AGREEMENT
-98-
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Agent (including
by any Lender) arising out of or by reason of any investigation in or in any
way relating to or arising out of this Agreement or any other Loan Document
or any other documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby (including, without
limitation, the costs and expenses that the Company is obligated to pay under
Section 11.03 hereof, and including also any payments under any indemnity
that the Agent is required to issue to any bank referred to in Section 4.02
of the Security Agreement and Section 5.02 of each Supplemental Subsidiary
Guarantee and Security Agreement to which remittances in respect of Accounts,
as defined in each such agreement, are to be made, but excluding, unless a
Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents, PROVIDED that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of
the party to be indemnified.
10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees
that it has, independently and without reliance on the Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement
or under any other Loan Document. The Agent shall not be required to keep
itself informed as to the performance or observance by any Obligor of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder or under the Security Documents, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Company or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Agent or any of its affiliates.
CREDIT AGREEMENT
-99-
10.07 FAILURE TO ACT. Except for action expressly required of the
Agent hereunder and under the other Loan Documents, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder unless
it shall receive further assurances to its satisfaction from the Lenders of
their indemnification obligations under Section 10.05 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.08 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Lenders and the Company, and the Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent with the prior consent of the Company (which consent
shall not be unreasonably withheld); PROVIDED, that no such consent of the
Company shall be required if an Event of Default has occurred and is continuing
and the Commitments have been terminated and/or the Loans and other amounts
payable by the Company hereunder have been declared to be forthwith due and
payable. If no successor Agent shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, that shall be a bank with a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Section 10 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent.
10.09 AGENCY FEE. So long as the Commitments are in effect and until
payment in full of the principal of and interest on the Loans and all other
amounts payable by the Company hereunder, the Company will pay to the Agent an
agency fee in the amount agreed in writing between the Company and the Agent,
payable quarterly in arrears commencing on September 30, 1997 and on the last
day of each calendar quarter thereafter; PROVIDED that if the Commitments shall
have been terminated prior to such
CREDIT AGREEMENT
-100-
date, the agency fee shall be payable on the date of such termination. Such
fee, once paid, shall be non-refundable.
10.10 CONSENTS UNDER OTHER LOAN DOCUMENTS. Except as otherwise
provided in Section 11.04 hereof with respect to this Agreement, the Agent may,
with the prior consent of the Majority Lenders (or the Supermajority Lenders, as
specified herein) (but not otherwise), consent to any modification, supplement
or waiver under any of the Loan Documents, PROVIDED that, without the prior
consent of each Lender, the Agent shall not (except as provided herein or in the
Security Documents) release any guarantee or collateral or otherwise terminate
any Lien under any Loan Document providing for collateral security, or agree to
additional obligations being secured by such collateral security, except that no
such consent shall be required, and the Agent is hereby authorized, to release
any Lien covering Property that is the subject of a disposition of Property
permitted hereunder or to which the Majority Lenders have consented or to
release any guarantee of any Obligor that is the subject of a disposition to
which the Majority Lenders have consented.
10.11 SYNDICATION AGENT AND CO-AGENTS. The Syndication Agent and the
Co-Agents named on the cover page of this Agreement shall have no duties,
obligations or responsibilities hereunder except in their capacity as Lenders.
Section 11. MISCELLANEOUS.
11.01 WAIVER. No failure on the part of the Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or any Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 NOTICES. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including, without limitation, by
telex or telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications
CREDIT AGREEMENT
-101-
shall be deemed to have been duly given when transmitted by telex or telecopier
or personally delivered or, in the case of a mailed notice, upon receipt, in
each case given or addressed as aforesaid.
11.03 EXPENSES, ETC. The Company agrees to pay or reimburse each of
the Lenders and the Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to First
Union, and Fiddler Gonzalez & Rodriguez, special Puerto Rico counsel to First
Union) in connection with (i) the negotiation, preparation, execution and
delivery of this Agreement and the other Loan Documents and the extensions of
credit hereunder and (ii) the negotiation or preparation of any modification,
supplement or waiver of any of the terms of this Agreement or any of the other
Loan Documents (whether or not consummated); (b) all reasonable out-of-pocket
costs or allocated costs and expenses of the Lenders and the Agent (including,
without limitation, the reasonable fees, allocated costs and expenses of legal
counsel, which may be employees of the Lenders or the Agent) in connection with
(i) any Default and any enforcement or collection proceedings resulting
therefrom, including, without limitation, all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory proceedings
and (z) workout, restructuring or other negotiations or proceedings (whether or
not the workout, restructuring or transaction contemplated thereby is
consummated) and (ii) the enforcement of this Section 11.03; (c) all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
other Loan Documents or any other document referred to herein or therein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Loan Document or any other document referred to therein; and
(d) all costs, expenses and other charges in respect of title insurance procured
with respect to the Liens created pursuant to any Mortgages securing, directly
or indirectly, the Loans.
The Company hereby agrees to indemnify the Agent and each Lender and
their respective directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including, without limitation, any
and all losses, liabilities, claims, damages or expenses
CREDIT AGREEMENT
-102-
incurred by the Agent to any Lender, whether or not the Agent or any Lender
is a party thereto) arising out of or by reason of any investigation or
litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to the extensions of credit
hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the extensions of credit hereunder,
including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). Without limiting the generality
of the foregoing, the Company will (x) indemnify the Agent for any payments
that the Agent is required to make under any indemnity issued to any bank
referred to in Section 4.02 of the Security Agreement and Section 5.02 of
each Supplemental Subsidiary Guarantee and Security Agreement to which
remittances in respect to Accounts, as defined in each such agreement, are to
be made and (y) indemnify the Agent and each Lender from, and hold the Agent
and each Lender harmless against, any losses, liabilities, claims, damages or
expenses described in the preceding sentence (including any Lien filed
against all or any part of the Property covered by any Mortgages (securing,
directly or indirectly, the Loans) in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental
Law as a result of the past, present or future operations of the Company or
any of its Subsidiaries (or any predecessor in interest to the Company or any
of its Subsidiaries), or the past, present or future condition of any site or
facility owned, operated or leased at any time by the Company or any of its
Subsidiaries (or any such predecessor in interest), or any Release or
threatened Release of any Hazardous Materials at or from any such site or
facility, including any such Release or threatened Release that shall occur
during any period prior to the termination of the Commitments and the payment
in full of the Loans and other amounts owing hereunder and under the other
Loan Documents when the Agent or any Lender shall be in possession of any
such site or facility following the exercise by the Agent or any Lender of
any of its rights and remedies hereunder or under any of the Security
Documents to the extent such Release results from a continuation of
conditions previously in existence at, or practices theretofore employed in
connection with the operation of, such site or facility.
CREDIT AGREEMENT
-103-
11.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, the Agent and the
Majority Lenders, or by the Company and the Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by the
Majority Lenders or by the Agent acting with the consent of the Majority
Lenders; PROVIDED that: (a) no modification, supplement or waiver shall, unless
by an instrument signed by all of the Lenders or by the Agent acting with the
consent of all of the Lenders: (i) increase, or extend the term of any of the
Commitments, or extend the time or waive any requirement for the reduction or
termination of any of the Commitments, (ii) extend the date fixed for the
payment of principal of or interest on any Loan or any fee hereunder,
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon or any fee is payable hereunder, (v) alter
the rights or obligations of the Company to prepay Loans, (vi) alter the terms
of this Section 11.04, (vii) modify the definition of the terms "Majority
Lenders" or "Supermajority Lenders", or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, or modify Section 4.07(b) or
Section 11.06(b)(ii) or (iii) hereof, (viii) release any Subsidiary Guarantor
from any of its guarantee obligations under the Existing Subsidiary Guarantee
and Security Agreement or any Supplemental Subsidiary Guarantee and Security
Agreement or release (or terminate any Lien on) all or substantially all of the
Collateral except as provided in the Security Documents with respect to such
Collateral in any of the Security Documents or (ix) waive any of the conditions
precedent set forth in Section 6.01, 6.02 or 6.03 hereof; (b) Sub-clause (i)(b)
of the definition of "Permitted Acquisition" may be modified, supplemented or
waived only by an instrument in writing signed by the Company, the Agent and the
Supermajority Lenders, or by the Company and the Agent acting with the consent
of the Supermajority Lenders; and (c) any modification of any of the rights or
obligations of the Agent shall require the consent of the Agent.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
CREDIT AGREEMENT
-104-
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Company may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Agent.
(b) Each Lender may assign any of its Loans, its Notes and its
Commitments with the consent of the Company and the Agent (which consents shall
not be unreasonably withheld) pursuant to an Assignment and Acceptance
substantially in the form of Exhibit I hereto; PROVIDED that:
(i) no such consent by the Company shall be required in the case
of any assignment to another Lender or in any case if an Event of
Default has occurred and is continuing;
(ii) each assignment by a Lender of its Loans, Notes or
Commitment of any Class shall be made in such a manner so that the
same portion of such Loans, Notes and Commitment is assigned to the
respective assignee;
(iii) each assignment by any Facility C Lender or Facility D
Lender of any Loans (and related Note and Commitment) of a particular
Class shall be made in such a manner so that (x) the same ratable
portion of all of its Loans to the Company under this Agreement of
the other Class is assigned to the respective assignee and (y) the
same ratable portion of all of its Facility A Loans and Facility B
Loans (and related Facility A Note and Facility B Note and Facility
A Commitment and Facility B Commitment) under and as defined in the
Existing Credit Agreement is assigned to the respective assignee; and
(iv) any such assignment of less than all of such Lender's
interests in any of its Facility C Loans, Facility D Loans, Facility A
Loans, Facility B Loans, Facility C Notes, Facility D Notes, Facility
A Notes, Facility B Notes, Facility C Commitments, Facility D
Commitments, Facility A Commitments and Facility B Commitments, as the
case may be, shall be in an aggregate amount at least equal to
$10,000,000 ($5,000,000 if the assignee is already a Lender).
Upon execution and delivery by the assignor and assignee to the Agent of such
Assignment and Acceptance, and upon consent thereto by the Company and the Agent
to the extent required above, the assignee shall have, to the extent of such
assignment, the
CREDIT AGREEMENT
-105-
obligations, rights and benefits of a Lender hereunder holding the Commitments
and Loans (or portions thereof) assigned to it as specified in such Assignment
and Acceptance (in addition to the Commitments and Loans theretofore held by
such assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the Commitment(s) (or portion(s) thereof) so assigned. Upon
each such assignment the assigning Lender shall pay the Agent an assignment fee
of $3,000.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part (in a minimum amount of $5,000,000) of any
Loans held by it, or in its Commitments, in which event each purchaser of a
participation (a "PARTICIPANT") shall be entitled to the rights and benefits of
the provisions of Section 8.01(j) hereof with respect to its participation in
such Loans and Commitments as if (and the Company shall be directly obligated to
such Participant under such provisions as if) such Participant were a "Lender"
for purposes of said Section, but, except as otherwise provided in
Section 4.07(c) hereof, shall not have any other rights or benefits under this
Agreement or any Note or any other Loan Document (the Participant's rights
against such Lender in respect of such participation to be those set forth in
the agreements executed by such Lender in favor of the Participant). All
amounts payable by the Company to any Lender under Section 5 hereof in respect
of Loans held by it, and its Commitments, shall be determined as if such Lender
had not sold or agreed to sell any participations in such Loans and Commitments,
and as if such Lender were funding each of such Loans and Commitments in the
same way that it is funding the portion of such Loans and Commitments in which
no participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Lender's related
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee, (v) alter the rights or
obligations of the Company to prepay the related Loans, (vi) consent to any
modification, supplement or waiver hereof or of any of the other Loan Documents
to the extent that the same, under Section 10.10
CREDIT AGREEMENT
-106-
or 11.04 hereof, requires the consent of each Lender or (vii) release any
Subsidiary Guarantor from any of its guarantee obligations under the
Guarantee Agreement or any Supplemental Subsidiary Guarantee and Security
Agreement or release (or terminate any Lien on) all or substantially all of
the collateral directly or indirectly securing the Loans except as provided
in the Security Documents with respect to such collateral in any of the
Security Documents.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Lender may (without notice
to the Company, the Agent or any other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans and its Notes to any
Federal Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank and (ii) assign all or
any portion of its rights under this Agreement and its Loans and its Notes to an
affiliate. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the Company or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan held by it
hereunder to the Company or any of its Subsidiaries or Affiliates without the
prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the Company
shall maintain, or cause to be maintained, a register (the "REGISTER") that, at
the request of the Company, shall be kept by the Agent on behalf of the Company
at no charge to the Company at the address to which notices to the Agent are to
be sent hereunder, on which it enters the name of such Lender as the registered
owner of each Registered Loan held by such Lender. A Registered Loan (and the
Registered Note, if any, evidencing the same) may be assigned or otherwise
transferred in whole or in part by registration of such assignment or transfer
on the Register (and each Registered Note shall expressly so provide). Any
assignment or transfer of all or part of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected by registration of
such assignment or transfer on the Register, together with the
CREDIT AGREEMENT
-107-
surrender of the Registered Note, if any, evidencing the same duly endorsed
by (or accompanied by a written instrument of assignment or transfer duly
executed by) the holder of such Registered Note, whereupon, at the request of
the designated assignee(s) or transferee(s), one or more new Registered Notes
in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or
transfer of any Registered Loan (and the Registered Note, if any, evidencing
the same) the Company shall treat the Person in whose name such Registered
Loan (and the Registered Note, if any, evidencing the same) is registered as
the owner thereof for the purpose of receiving all payments thereon and for
all other purposes, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Company and any Lender that is a
Registered Holder at any reasonable time upon reasonable prior notice.
11.07 SURVIVAL. The obligations of the Company under Sections 5.01,
5.05, 5.06, 5.08 and 11.03 hereof, and the obligations of the Lenders under
Section 10.05 hereof, shall survive the repayment of the Loans and the
termination of the Commitments. In addition, each representation and warranty
made, or deemed to be made by a notice of any extension of credit herein or
pursuant hereto shall survive the making of such representation and warranty,
and no Lender shall be deemed to have waived, by reason of making any extension
of credit hereunder (whether by means of a Loan), any Default that may arise by
reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Lender or the Agent may have had notice or
knowledge or reason to believe that such representation or warranty was false or
misleading at the time such extension of credit was made.
11.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
11.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
CREDIT AGREEMENT
-108-
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
AND VENUE.
(a) This Agreement and the Notes shall be governed by, and construed
in accordance with, the law of the State of New York.
(b) The Company hereby agrees that any suit, action or proceeding
with respect to this Agreement, any Note or any other Loan Document to which it
is a party or any judgment entered by any court in respect thereof may be
brought in the United States District Court for the Southern District of
New York, in the Supreme Court of the State of New York sitting in New York
County (including its Appellate Division), or in any other appellate court in
the State of New York, as the party commencing such suit, action or proceeding
may elect in its sole discretion; and each party hereto hereby irrevocably
submits to the non-exclusive jurisdiction of such court for the purpose of any
such suit, action, proceeding or judgment. Each party hereto further submits,
for the purpose of any such suit, action, proceeding or judgment brought or
rendered against it, to the appropriate courts of the jurisdiction of its
domicile.
(c) The Company hereby agrees that service of all writs, process and
summonses in any suit, action or proceeding brought hereunder or under any of
the other Loan Documents to which the Company is a party may be made upon The
Prentice Hall Corporation System, Inc. presently located at 15 Columbus Circle,
New York, New York 10023, U.S.A. (the "PROCESS AGENT"), and the Company hereby
confirms and agrees that the Process Agent has been duly and irrevocably
appointed as its agent and true and lawful attorney in fact in its name, place
and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give any notice
of any such service of process to the Company shall not impair or affect the
validity of such service or of any judgment based thereon. Without limiting the
foregoing, the Company hereby irrevocably consents to the service of process in
any suit, action or proceeding in such courts by the mailing thereof by the
Agent or any Lender by registered or certified mail, postage prepaid, at its
address set forth beneath its signature hereto. Nothing herein shall in any way
be deemed to limit the ability of the Agent or any Lender to serve any such
writs, process or summonses in any other manner permitted by applicable law or
to obtain jurisdiction over the Company in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
CREDIT AGREEMENT
-109-
(d) The Company hereby irrevocably waives any objection that it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement, the Notes or the other
Loan Documents brought in any such court and hereby further irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
11.11 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Company hereby authorizes each Lender to share
any information delivered to such Lender by the Company and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such subsidiary or affiliate receiving such information
shall be bound by the provisions of clause (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of the Loans and the
termination of the Commitments.
(b) Each Lender and the Agent agree (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by any Obligor pursuant to this Agreement that is identified by
such Person as being confidential at the time the same is delivered to the
Lenders or the Agent, PROVIDED that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for any of the Lenders or the Agent, (iii) to
any Lender's examiners, auditors or accountants, (iv) to the Agent, the
Syndication Agent named on the cover page of this Agreement or any other Lender,
(v) in connection with any litigation to which any one or more of the
CREDIT AGREEMENT
-110-
Lenders or the Agent is a party, (vi) to a subsidiary or affiliate of such
Lender as provided in clause (a) above or (vii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant) first executes and
delivers to the respective Lender a Confidentiality Agreement substantially
in the form of Exhibit H hereto; PROVIDED, further, that in no event shall
any Lender or the Agent be obligated or required to return any materials
furnished by any Obligor. The obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit H hereto shall be superseded
by this Section 11.12 upon the date upon which such assignee becomes a Lender
hereunder pursuant to Section 11.06 hereof.
11.13 INTENTION OF PARTIES. Notwithstanding anything contained
herein to the contrary, it is the intention of the parties hereto that this
Agreement and the Commitments and extensions of credit provided hereunder
represent a supplement to, but not a novation or discharge of, the credit
facilities provided by the Existing Credit Agreement and the Existing
Supplemental Credit Agreement; and the Company hereby represents and warrants to
the Agent and each Lender that after giving effect to the transactions
contemplated hereby, the security interests created by the Security Documents
continue to constitute valid, perfected and first priority (subject only to
Liens permitted by Section 8.06 hereof) security interests securing all
obligations purported to be secured thereby, and each of the Security Documents
and the security interests provided for therein continue in full force and
effect.
[Signature pages follow]
CREDIT AGREEMENT
-111-
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended
and Restated Supplemental Credit Agreement to be duly executed and delivered as
of the day and year first above written.
COMPANY
SUIZA FOODS CORPORATION
By
------------------------------------
Title:
Address for Notices:
3811 Turtle Creek Boulevard
Suite 1300
Dallas, Texas 75219
Attention: Gregg L. Engles
Telecopier No.: (214) 528-9929
Telephone No.: (214) 528-9922
CREDIT AGREEMENT
-112-
LENDERS
FACILITY C COMMITMENT FIRST UNION NATIONAL BANK
$18,571,428.57
FACILITY D COMMITMENT
$10,000,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
First Union National Bank
301 S. College Street
Charlotte, NC 28288-0737
Address for Notices:
First Union National Bank
301 S. College Street
Charlotte, NC 28288-0737
Attention: Sana Alkoor - Suiza
Telecopier No.: (704) 383-6537
Telephone No.: (704) 374-9831
CREDIT AGREEMENT
-113-
FACILITY C COMMITMENT THE FIRST NATIONAL BANK OF CHICAGO
$18,571,428.57
FACILITY D COMMITMENT
$10,000,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
The First National Bank of Chicago
1 First National Plaza
Suite 0088, 14th Floor
Chicago, IL 60670
Address for Notices:
The First National Bank of Chicago
1 First National Plaza
Suite 0088, 14th Floor
Chicago, IL 60670
Attention: April Yebd
Telecopier No.: (312) 732-2715
(312) 732-6276
Telephone No.: (312) 732-4823
CREDIT AGREEMENT
-114-
FACILITY C COMMITMENT BANKBOSTON, N.A.
$14,392,857.14
Facility D Commitment
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Bank of Boston, N.A.
100 Federal Street
Mail Code 01-09-04
Boston, MA 02110
Address for Notices:
Bank of Boston, N.A.
100 Federal Street
Mail Code 01-09-04
Boston, MA 02110
Attention: Lisa Marshall
Telecopier No.: 617-434-6685
Telephone No.: 617-434-4117
CREDIT AGREEMENT
-115-
FACILITY C COMMITMENT BHF BANK, AKTIENGESELLSCHAFT
$14,392,857.14
FACILITY D COMMITMENT
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
BHF Bank, Aktiengesellschaft
590 Madison Avenue
New York, NY 10022-2540
Address for Notices:
BHF Bank, Aktiengesellschaft
590 Madison Avenue
New York, NY 10022-2540
Attention: John Sykes
Telecopier No.: 212-756-5536
Telephone No.: 212-756-5939
CREDIT AGREEMENT
-116-
FACILITY C COMMITMENT COOPERATIEVE CENTRALE
$14,392,857.14 RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
FACILITY D COMMITMENT
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
245 Park Avenue
36th Floor
New York, NY 10167
Address for Notices:
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
c/o 13355 Noel Road #1000
Dallas, TX 75240
Attention: Gordon Arnold
Telecopier No.: 972-419-6315
CREDIT AGREEMENT
-117-
FACILITY C COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH
$14,392,857.14
FACILITY D COMMITMENT
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Credit Lyonnais New York Branch
c/o Credit Lyonnais Dallas
2200 Ross Avenue
Suite 4400 West
Dallas, Texas 75201
Address for Notices:
Credit Lyonnais New York Branch
c/o Credit Lyonnais Dallas
2200 Ross Avenue
Suite 4400 West
Dallas, Texas 75201
Attention: Tim O'Connor
Telecopier No.: (214) 220-2323
Telephone No.: (214) 220-2300
CREDIT AGREEMENT
-118-
FACILITY C COMMITMENT FLEET NATIONAL BANK
$14,392,857.14
FACILITY D COMMITMENT
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Fleet National Bank
1 Landmark Square
Mailstop CTFD 0752
Stamford, CT 06904
Address for Notices:
Fleet National Bank
1 Landmark Square
Mailstop CTFD 0752
Stamford, CT 06904
Attention: Steve Kalin
Telecopier No.: 203-358-6111
Telephone No.: 203-358-2013
CREDIT AGREEMENT
-119-
FACILITY C COMMITMENT MERRILL LYNCH SENIOR FLOATING
$14,392,857.14 RATE FUND, INC.
FACILITY D COMMITMENT
$7,750,000.00 By
------------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Merrill Lynch Senior Floating Rate Fund,
Inc.
c/o Merrill Lynch Asset Management
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Address for Notices:
Merrill Lynch Senior Floating Rate Fund,
Inc.
800 Scudders Mill Road - Area 1B
Plainsboro, NJ 08536
Attention: Jill Montange
Telecopier No.: 609-282-3542
Telephone No.: 609-282-3102
With a copy to:
MLAM Accounting
500 College Road - 4E
Plainsboro, NJ 08536
Attention: John Geijer
Telecopier No.: 609-282-7616
Telephone No.: 609-282-7705
CREDIT AGREEMENT
-120-
FACILITY C COMMITMENT AMSOUTH BANK
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
AmSouth Bank
1900 5th Avenue, North
Sonat Tower - 7th
Birmingham, AL 35203
Address for Notices:
AmSouth Bank
1900 5th Avenue, North
Sonat Tower - 7th
Birmingham, AL 35203
Attention: Joseph Maxwell
Telecopier No.: 205-326-5601
Telephone No.: 205-801-0167
CREDIT AGREEMENT
-121-
FACILITY C COMMITMENT BANCO POPULAR DE PUERTO RICO
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Banco Popular de Puerto Rico
7 West 51st Street
New York, New York 10019
Address for Notices:
Banco Popular de Puerto Rico
7 West 51st Street
New York, New York 10019
Attention: John Cuneo
Telecopier No.: (212) 586-3537
Telephone No.: (212) 315-2800
CREDIT AGREEMENT
-122-
FACILITY C COMMITMENT BANK OF AMERICA ILLINOIS
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Bank of America Illinois
231 S. LaSalle
Chicago, Illinois 60697
Address for Notices:
Bank of America Illinois
231 S. LaSalle
Chicago, Illinois 60697
Attention: Paul Youmaura
Telecopier No.: (312) 974-9626
Telephone No.: (312) 828-6574
CREDIT AGREEMENT
-123-
FACILITY C COMMITMENT THE BANK OF NOVA SCOTIA
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street N.E., Suite 2700
Atlanta, Georgia 30308
Address for Notices:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: F.C.H. Ashby
SENIOR Assistant Agent
Telecopier No.: (404) 888-8998
Telephone No.: (404) 877-1500
with a copy to:
The Bank of Nova Scotia
Houston Representative Office
1100 Louisiana, Suite 3000
Houston, Texas 77002
Attention: Rosine Matthews
Relationship Manager
Telecopier No.: (713) 752-2425
Telephone No.: (713) 759-3432
CREDIT AGREEMENT
-124-
FACILITY C COMMITMENT CAISSE NATIONALE DE CREDIT AGRICOLE
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Caisse Nationale de Credit Agricole
55 E. Monroe
Suite 4700
Chicago, IL 60603
Address for Notices:
Caisse Nationale de Credit Agricole
55 E. Monroe
Suite 4700
Chicago, IL 60603
Attention: Laura Schmuck
Telecopier No.: (312) 372-4421
Telephone No.: (312) 917-7428
CREDIT AGREEMENT
-125-
FACILITY C COMMITMENT HARRIS TRUST AND SAVINGS BANK
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, IL 60690
Address for Notices:
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, IL 60690
Attention: Jerry Karl/Marieky Estrada
Telecopier No.: (312) 765-8095
Telephone No.: (312) 461-3776/7664
CREDIT AGREEMENT
-126-
FACILITY C COMMITMENT THE LONG-TERM CREDIT BANK OF JAPAN,
$12,071,428.57 LIMITED, NEW YORK BRANCH
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
The Long-Term Credit Bank of Japan,
Limited, New York Branch
165 Broadway
New York, NY 10006
Address for Notices:
The Long-Term Credit Bank of Japan,
Limited, New York Branch
Dallas Representative Office
2200 Ross Avenue, Suite 4700 West
Dallas, TX 75201
Attention: Robert L. Nelson
Telecopier No.: (214) 969-5357
Telephone No.: (214) 969-5352
CREDIT AGREEMENT
-127-
FACILITY C COMMITMENT MARINE MIDLAND BANK
$12,071,428.57
FACILITY D COMMITMENT By
$6,500,000.00 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Marine Midland Bank
140 Broadway, 5th Floor
New York, NY 10005
Address for Notices:
Marine Midland Bank
140 Broadway, 5th Floor
New York, NY 10005
Attention: Christopher French
Telecopier No.: 212-658-2586
Telephone No.: 212-658-2742
CREDIT AGREEMENT
-128-
FACILITY C COMMITMENT BANQUE PARIBAS
$10,678,571.47
FACILITY D COMMITMENT
$5,750,000.00 By
---------------------------------
Title:
By
---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
Banque Paribas
1200 Smith Street
Suite 3100
Houston, Texas 77002
Address for Notices:
Banque Paribas
1200 Smith Street
Suite 3100
Houston, Texas 77002
Attention: Chuck E. Irwin
Telecopier No.: (713) 659-5234
Telephone No.: (713) 659-4811
CREDIT AGREEMENT
-129-
FACILITY C COMMITMENT THE FUJI BANK, LIMITED
$10,678,571.47
FACILITY D COMMITMENT
$5,750,000.00 By
---------------------------------
Title:
Lending Office for Base Rate Loans and
Eurodollar Loans:
The Fuji Bank, Limited,
Houston Agency
One Houston Center
1221 McKinney Street, Suite 4100
Houston, TX 77010
Telecopier No.: (713) 759-0048
Address for Notices:
The Fuji Bank, Limited,
Houston Agency
One Houston Center
1221 McKinney Street, Suite 4100
Houston, TX 77010
Attention: Philip C. Lauinger III
Vice President and Joint
Manager or
David L. Kelley
Senior Vice President
(713) 650-7850
Telecopier No.: (713) 759-0048
Telephone No.: (713) 650-7852
CREDIT AGREEMENT
-130-
FACILITY C COMMITMENT THE BANK OF TOKYO -
$6,964,285.71 MITSUBISHI, LTD.
FACILITY D COMMITMENT By
$3,750,000.00 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
The Bank of Tokyo -
Mitsubishi, Ltd.
2001 Ross Ave.
3150 Trammel Crow
Dallas, TX 75201
Address for Notices:
The Bank of Tokyo -
Mitsubishi, Ltd.
2001 Ross Ave.
3150 Trammel Crow
Dallas, TX 75201
Attention: John Mearns
Telecopier No.: 214-954-1007
Telephone No.: 214-954-1200
CREDIT AGREEMENT
-131-
FACILITY C COMMITMENT CIBC, INC.
$6,964,285.71
FACILITY D COMMITMENT By
$3,750,000.00 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
CIBC, Inc.
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Address for Notices:
CIBC Wood Gundy Securities Corp.
Two Houston Center, Suite 1200
909 Fannin Street
Houston, TX 77010
Attention: Bill Schrauff
Telecopier No.: 713-650-3727
Telephone No.: 713-655-5291
With a copy to:
CIBC Wood Gundy Securities Corp.
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Attention: Vickie Summey (Borrowings)
Ken Auchter (Other
Notices)
Telecopier No.: 770-319-4950
Telephone No.: 770-319-4841
(Auchter)
770-319-4852
(Summey)
CREDIT AGREEMENT
-132-
FACILITY C COMMITMENT COMMERZBANK AG,
$6,964,285.71 NEW YORK BRANCH
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Commerzbank AG,
New York Branch
2 World Financial Center
New York, NY 10281
Address for Notices:
Commerzbank AG,
New York Branch
2 World Financial Center
New York, NY 10281
Attention: Mary Harold
Telecopier No.: 212-266-7374
Telephone No.: 212-266-7509
CREDIT AGREEMENT
-133-
FACILITY C COMMITMENT COMPAGNIE FINANCIERE DE
$6,964,285.71 CIC ET DE L'UNION EUROPEENNE
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Compagnie Financiere de
CIC et de l'Union Europeenne
520 Madison Avenue
37th Floor
New York, NY 10022
Address for Notices:
Compagnie Financiere de
CIC et de l'Union Europeenne
520 Madison Avenue
37th Floor
New York, NY 10022
Attention: Brian O'Leary
Telecopier No.: 212-715-4535
Telephone No.: 212-715-4422
CREDIT AGREEMENT
-134-
FACILITY C COMMITMENT CREDITANSTALT - BANKVEREIN
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Creditanstalt - Bankverein
Two Ravinia Drive, Ste. 1680
Atlanta, GA 30346
Address for Notices:
Creditanstalt - Bankverein
Two Ravinia Drive, Ste. 1680
Atlanta, GA 30346
Attention: Scott Kray
Telecopier No.: 770-390-1851
Telephone No.: 770-390-1858
CREDIT AGREEMENT
-135-
FACILITY C COMMITMENT HIBERNIA NATIONAL BANK
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Hibernia National Bank
313 Carondelet Street
New Orleans, LA 70130
Address for Notices:
Hibernia National Bank
313 Carondelet Street
New Orleans, LA 70130
Attention: Stephanie Freeman
Telecopier No.: 504-533-5344
Telephone No.: 504-533-3345
CREDIT AGREEMENT
-136-
FACILITY C COMMITMENT MELLON BANK, N.A.
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 152-2300
Pittsburgh, PA 15259
Attention: Loan Administrator
Telecopier No: 412-236-2027
Telephone No: 412-234-3699
Address for Notices:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 152-2300
Pittsburgh, PA 15259
Attention: Loan Administrator
Telecopier No: 412-236-2027
Telephone No: 412-234-3699
With a copy to:
Mellon Bank, N.A.
One Boston Place
Room 024-006A
Boston, MA 02108
Attention: R. Jane Westrich
Telecopier No.: 617-722-3516
Telephone No.: 617-722-7969
CREDIT AGREEMENT
-137-
FACILITY C COMMITMENT THE MITSUBISHI TRUST AND BANKING
$6,964,285.71 CORPORATION, CHICAGO BRANCH
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
The Mitsubishi Trust and Banking
Corporation, Chicago Branch
311 S. Wacker Dr.
Suite 6300
Chicago, IL 60606
Address for Notices:
The Mitsubishi Trust and Banking
Corporation, Chicago Branch
311 S. Wacker Dr.
Suite 6300
Chicago, IL 60606
Attention: Vicki L. Kamm
Telecopier No.: 312-663-0863
Telephone No.: 312-408-6014
CREDIT AGREEMENT
-138-
FACILITY C COMMITMENT NATEXIS BANQUE BFCE
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
NATEXIS Banque BFCE
New York Branch
645 Fifth Avenue
20th Floor
New York, New York 10022
Address for Notices:
NATEXIS Banque BFCE
Southwest Representative Office
333 Clay Street, Suite 4340
Houston, TX 77002
Attention: Tanya McAllister
Telecopier No.: 713-759-9908
Telephone No.: 713-759-9401
With a copy to:
NATEXIS Banque
New York Branch
645 Fifth Avenue
20th Floor
New York, New York 10022
Attention: Joan Rankine
Telecopier No.: 212-872-5045
CREDIT AGREEMENT
-139-
FACILITY C COMMITMENT NATIONAL CITY BANK OF KENTUCKY
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
National City Bank
101 S. Fifth Street
Louisville, KY 40202
Address for Notices:
National City Bank
101 S. Fifth Street
Louisville, KY 40202
Attention: Don Pullen
Telecopier No.: 502-581-5122
Telephone No.: 502-581-6352
CREDIT AGREEMENT
-140-
FACILITY C COMMITMENT THE SUMITOMO TRUST & BANKING
$6,964,285.71 CO. LTD., NEW YORK BRANCH
Facility D Commitment
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
The Sumitomo Trust & Banking
Co. Ltd., New York Branch
527 Madison Avenue
New York, NY 10022
Address for Notices:
The Sumitomo Trust & Banking
Co. Ltd., New York Branch
527 Madison Avenue
New York, NY 10022
Attention: Kristin Condon
Telecopier No.: 212-418-4848
Telephone No.: 212-326-0751
CREDIT AGREEMENT
-141-
FACILITY C COMMITMENT WELLS FARGO BANK (TEXAS), N.A.
$6,964,285.71
FACILITY D COMMITMENT
$3,750,000.00 By
----------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Wells Fargo Bank (Texas), N.A.
1445 Ross Ave., Suite 300
Dallas, TX 75202
Address for Notices:
Wells Fargo Bank (Texas), N.A.
1445 Ross Ave., Suite 300
Dallas, TX 75202
Attention: Jeffrey Cook
Telecopier No.: 214-740-1543
Telephone No.: 214-740-1539
CREDIT AGREEMENT
-142-
AGENT
-----
FIRST UNION NATIONAL BANK,
as Agent
By
----------------------------------
Title:
Address for Notices to
the Agent:
First Union National Bank
301 S. College Street TW-10
Charlotte, NC 28288-0608
Attention: Syndication Agency
Services
Telecopier No.: (704) 383-0288
Telephone No.: (704) 383-0281
CREDIT AGREEMENT
-143-
CONSENT AND AGREEMENT
Each of the undersigned Subsidiary Guarantors hereby (1) consents to the terms
of the Existing Credit Agreement and this Agreement, (2) agrees that each
reference to the "Credit Agreement" or the "Supplemental Credit Agreement" (if
any) in each Security Document to which such Subsidiary Guarantor is a party
shall be a reference to the Existing Credit Agreement and this Agreement,
respectively, and (3) confirms its obligations under each Security Document to
which it is a party after the Existing Credit Agreement and this Agreement
become effective on the Effective Date.
REDDY ICE CORPORATION SUIZA FRUIT CORPORATION
By By
--------------------------- ---------------------------
Title: Title:
VELDA FARMS, INC. NEVA PLASTICS MANUFACTURING
CORP.
By By
--------------------------- ---------------------------
Title: Title:
SUIZA MANAGEMENT CORPORATION MODEL DAIRY, INC.
By By
--------------------------- ---------------------------
Title: Title:
SUIZA DAIRY CORPORATION SWISS DAIRY CORPORATION
By By
--------------------------- ---------------------------
Title: Title:
DAIRY FRESH, INC.
By
---------------------------
Title:
CREDIT AGREEMENT