CONFORMED COPY
- -----------------------------------------------------------------
$850,000,000 CREDIT AGREEMENT
dated as of
July 25, 1997
among
FLEMING COMPANIES, INC.,
The Lenders Party Hereto,
BANCAMERICA SECURITIES, INC.,
as Syndication Agent,
SOCIETE GENERALE,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
- ---------------------------
CHASE SECURITIES INC.,
as Advisor and Arranger
- -----------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Term. . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Classification of Loans and
Borrowing . . . . . . . . . . . . . . . . . .
20
SECTION 1.03. Terms Generally . . . . . . . . . . . . . . . . 20
SECTION 1.04. Accounting Terms; GAA . . . . . . . . . . . . . 21
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments . . . . . . . . . . . . . . . . . . 21
SECTION 2.02. Loans and Borrowings. . . . . . . . . . . . . . 21
SECTION 2.03. Requests for Borrowings . . . . . . . . . . . . 22
SECTION 2.04. Swingline Loans . . . . . . . . . . . . . . . . 23
SECTION 2.05. Letters of Credit . . . . . . . . . . . . . . . 24
SECTION 2.06. Funding of Borrowings . . . . . . . . . . . . . 29
SECTION 2.07. Interest Elections. . . . . . . . . . . . . . . 30
SECTION 2.08. Termination and Reduction of
Commitments . . . . . . . . . . . . . . . . . 31
SECTION 2.09. Repayment of Loans; Evidence of Debt. . . . . . 32
SECTION 2.10. Amortization of Term Loans. . . . . . . . . . . 33
SECTION 2.11. Prepayment of Loans . . . . . . . . . . . . . . 34
SECTION 2.12. Fees. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.13. Interest. . . . . . . . . . . . . . . . . . . . 38
SECTION 2.14. Alternate Rate of Interest. . . . . . . . . . . 39
SECTION 2.15. Increased Costs . . . . . . . . . . . . . . . . 39
SECTION 2.16. Break Funding Payments. . . . . . . . . . . . . 41
SECTION 2.17. Taxes . . . . . . . . . . . . . . . . . . . . . 41
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs . . . . . . . . . . . . . 42
SECTION 2.19. Mitigation Obligations; Replacement
of Lenders. . . . . . . . . . . . . . . . . . 44
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Corporate Existence and Power . . . . . . . . . 45
SECTION 3.02. Corporate and Governmental Authorization;
Contravention . . . . . . . . . . . . . . . . 46
SECTION 3.03. Binding Effect. . . . . . . . . . . . . . . . . 46
SECTION 3.04. Financial Information . . . . . . . . . . . . . 46
SECTION 3.05. Litigation . . . . . . . . . . . . . . . . . . 47
SECTION 3.06. Compliance with ERISA . . . . . . . . . . . . . 47
-i-
SECTION 3.07. Environmental Matters . . . . . . . . . . . . . 47
SECTION 3.08. Taxes . . . . . . . . . . . . . . . . . . . . . 48
SECTION 3.09. Subsidiaries. . . . . . . . . . . . . . . . . . 48
SECTION 3.10. Not an Investment Company . . . . . . . . . . . 48
SECTION 3.11. No Conflicting Requirements . . . . . . . . . . 48
SECTION 3.12. Disclosure. . . . . . . . . . . . . . . . . . . 48
SECTION 3.13. Security Documents. . . . . . . . . . . . . . . 49
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. . . . . . . . . . . . . . . . . 49
SECTION 4.02. Each Credit Even. . . . . . . . . . . . . . . . 52
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Information . . . . . . . . . . . . . . . . . . 53
SECTION 5.02. Payment of Obligations. . . . . . . . . . . . . 55
SECTION 5.03. Maintenance of Property; Insurance. . . . . . . 55
SECTION 5.04. Conduct of Business and Maintenance
of Existence. . . . . . . . . . . . . . . . . 56
SECTION 5.05. Compliance with Laws. . . . . . . . . . . . . . 56
SECTION 5.06. Inspection of Property, Books and Records . . . 56
SECTION 5.07. Use of Proceeds . . . . . . . . . . . . . . . . 57
SECTION 5.08. Guarantee Requirement; Further Assurances . . . 57
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.02. Mergers, Consolidations and Sales
of Assets . . . . . . . . . . . . . . . . . . 59
SECTION 6.03. Indebtedness. . . . . . . . . . . . . . . . . . 60
SECTION 6.04. Restricted Payments . . . . . . . . . . . . . . 62
SECTION 6.05. Transactions with Affiliates. . . . . . . . . . 62
SECTION 6.06. Acquisitions and Investments. . . . . . . . . . 63
SECTION 6.07. Limitation on Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . 65
SECTION 6.08. Fixed Charge Coverage Ratio . . . . . . . . . . 65
SECTION 6.09. Ratio of Inventory and Accounts Receivable
to Funded Bank Debt . . . . . . . . . . . . . 65
-ii-
ARTICLE VII
EVENTS OF DEFAULT . . . . . . . . . . . . . . . 65
ARTICLE VIII
THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . 68
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.02. Waivers; Amendments . . . . . . . . . . . . . . 72
SECTION 9.03. Expenses; Indemnity; Damage Waiver. . . . . . . 73
SECTION 9.04. Successors and Assigns. . . . . . . . . . . . . 75
SECTION 9.05. Survival. . . . . . . . . . . . . . . . . . . . 77
SECTION 9.06. Counterparts; Integration;
Effectiveness . . . . . . . . . . . . . . . . 78
SECTION 9.07. Severability. . . . . . . . . . . . . . . . . . 78
SECTION 9.08. Right of Setoff . . . . . . . . . . . . . . . . 78
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process. . . . . . . . . . . . . . 79
SECTION 9.10. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . 79
SECTION 9.11. Headings . . . . . . . . . . . . . . . . . . . 80
SECTION 9.12. Confidentiality . . . . . . . . . . . . . . . . 80
SECTION 9.13. Interest Rate Limitation. . . . . . . . . . . . 81
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.05 -- Rolled-In Letters of Credit
Schedule 3.06 -- ERISA Matters
Schedule 3.09 -- Subsidiaries
Schedule 6.01 -- Existing Liens
Schedule 6.03(a)(ii) -- Existing Indebtedness
Schedule 6.03(b)(ii) -- Other Indebtedness
Schedule 6.05 -- Existing Affiliate Transactions with PDM, Inc.
Schedule 6.06(vii) -- 1994 Credit Agreement Adjustments to
Acquisitions and Investments Basket
-iii-
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Borrower's General Counsel
Exhibit C -- Guarantee Agreement
Exhibit D -- Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Pledge Agreement
Exhibit F -- Security Agreement
-iv-
CREDIT AGREEMENT dated as of July 25, 1997, among FLEMING
COMPANIES, INC. (the "Borrower"), the LENDERS party hereto, BANCAMERICA
SECURITIES, INC., as Syndication Agent, SOCIETE GENERALE, as
Documentation Agent, and THE CHASE MANHATTAN BANK, as Administrative
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ACCOUNTS RECEIVABLE" has the meaning assigned to such term in the
Security Agreement.
"ACQUISITION" means (i) an investment by the Borrower or any of the
Subsidiaries in any Person (other than the Borrower or any of its
Subsidiaries) pursuant to which such Person shall become a Subsidiary or
shall be merged into or consolidated with the Borrower or any of its
Subsidiaries or (ii) an acquisition by the Borrower or any of its
Subsidiaries of the property and assets of any Person (other than the
Borrower or any of its Subsidiaries) that constitute substantially all of the
assets of such Person or of any division or line of business of such Person.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADJUSTED NIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the NIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common
Control with the Person specified.
"AGENTS" means the Administrative Agent, Syndication Agent and
Documentation Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated
or expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.
"APPLICABLE RATE" means, for any day (a) with respect to the
commitment fees payable hereunder, or with respect to any Eurodollar Loan
that is a Revolving Loan or a Term Loan, as the case may be, the applicable
rate per annum set forth below under the caption "Commitment Fee Rate",
"Revolving Facility Spread" or "Term Loan Spread", as the case may be, based
upon the Ratings in effect on such day and, in the case of the Revolving
Facility Spread, the percentage of the aggregate Revolving Commitments that
shall be utilized on such day:
REVOLVING FACILITY SPREAD
-------------------------
RATINGS COMMITMENT LESS THAN 25% GREATER THAN OR GREATER THAN OR TERM LOAN
(S&P/MOODY'S) FEE RATE UTILIZATION EQUAL TO 25% BUT EQUAL TO 50% SPREAD
------------ -------- ----------- LESS THAN 50% UTILIZATION ------
UTILIZATION -----------
-----------
Category 1 BBB+/Baa1 or higher 0.100% 0.250% 0.275% 0.300% 0.350%
Category 2 BBB/Baa2 0.150% 0.375% 0.400% 0.425% 0.475%
Category 3 BBB-/Baa3 0.200% 0.500% 0.550% 0.600% 0.650%
Category 4 BB+/Ba1 0.300% 0.750% 0.8125% 0.875% 1.000%
Category 5 BB/Ba2 0.375% 1.000% 1.125% 1.250% 1.375%
Category 6 Less than BB/Ba2 0.500% 1.500% 1.625% 1.750% 1.875%
and (b) with respect to any ABR Loan, a rate per annum equal to the greater
of (i) zero and (ii) the applicable rate for a Eurodollar Loan of the same
Class, determined according to the above table, minus 1.00% per annum.
For purposes of the foregoing, (i) if the Ratings in effect on any
date fall in different Categories, the Applicable Rate shall be
-2-
determined by reference to the superior (numerically lower) Category, unless
the Ratings differ by more than one Category, in which case the applicable
Category shall be the Category next below the superior (numerically lower) of
the two; (ii) if either Moody's or S&P shall not have in effect a Rating
(other than because such rating agency shall no longer be in the business of
rating corporate debt obligations), then such rating agency will be deemed to
have established a Rating in Category 6; and (iii) if any rating established
or deemed to have been established by Moody's or S&P shall be changed (other
than as a result of a change in the rating system of either Moody's or S&P),
such change shall be effective as of the day on which such change is first
announced by the rating agency making such change. Each change in the
Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of either
Moody's or S&P shall change, or if either such rating agency shall cease to
be in the business of rating corporate debt obligations, the Borrower and the
Administrative Agent shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system or
the non-availability of ratings from such rating agency. For purposes of
determining the portion of the Revolving Commitments that has been utilized
at any time, (i) the Revolving Commitment of a Lender shall be deemed to be
utilized to the extent of the outstanding Revolving Loans, LC Exposure and
Swingline Exposure of such Lender and (ii) if the Revolving Commitments have
been terminated pursuant to Article VII, such Commitments shall at all times
thereafter be deemed to have been utilized in full.
"ASSET DISPOSITION" means (a) any sale, transfer or other
disposition of any capital stock of any Subsidiary to any Person other than
the Borrower or any Wholly Owned Subsidiary (including, without limitation,
through the merger of any Subsidiary with or into any Person other than the
Borrower or any Wholly Owned Subsidiary), (b) any sale, transfer or other
disposition of any other property or asset of the Borrower or any Subsidiary
to any Person other than the Borrower or any Wholly Owned Subsidiary, other
than any sale, transfer or other disposition of: (i) any current asset in the
ordinary course of business; (ii) any property or assets in connection with a
Permitted Note Financing; (iii) any property or assets within 180 days after
the acquisition, or completion of construction, thereof, to a Person other
than the Borrower or a Subsidiary who then leases such property to the
Borrower or a Subsidiary; (iv) existing property or assets in consideration
(in whole or in part) for the acquisition of new property or assets of a
similar character in the ordinary course of business; (v) inventory in the
ordinary course of business; and (vi) any other property or assets in the
ordinary course of business if the total consideration received by the
Borrower and its Subsidiaries in respect thereof and any property or assets
sold concurrently or in a related transaction or series of transactions does
not exceed $500,000, or (c) any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or similar proceeding
of, properties or assets of the Borrower or any Subsidiary where the total
consideration received by the Borrower and its Subsidiaries in respect of
such event or proceeding, or series of
-3-
events or proceedings, exceeds $500,000.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
ERISA Affiliate.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWER" means Fleming Companies, Inc., an Oklahoma corporation.
"BORROWER'S KNOWLEDGE" means the knowledge of any executive officer
of the Borrower or any other employee of the Borrower charged with the
responsibility of administering this Agreement.
"BORROWING" means (a) any group of Loans of the same Class and
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.
"BORROWING REQUEST" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"BUSINESS DEVELOPMENT PROGRAM" means the business practice of the
Borrower and its Subsidiaries of making or guaranteeing loans to, or making
equity investment in, third parties engaged in the retail grocery business in
exchange for long-term supply agreements with the Borrower or any Subsidiary.
"BUSINESS DEVELOPMENT VENTURE" means any Person participating in
the Business Development Program.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
-4-
"CHANGE IN CONTROL" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on the date
hereof) other than the 1989 ESOP, of shares representing 20% or more of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; or (b) the occupation at any time of a
majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender's or such Issuing Bank's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Term Loans or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or
Term Loan Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means any and all "Collateral", as defined in the
Security Documents.
"COLLATERAL AGENT" has the meaning ascribed to it in the Security
Agreement.
"COLLATERAL REQUIREMENT" means at any date that (a) the Pledge
Agreement creates in favor of the Collateral Agent, for the benefit of the
Lenders, first priority perfected pledges of and security interests in all
capital stock or other equity interests owned by the Borrower or any
Subsidiary in any Subsidiary, and (b) the Security Agreement creates in favor
of the Collateral Agent, for the benefit of the Lenders, first priority
perfected security interests in Inventory and Accounts Receivable
representing at least 95% of the consolidated Inventory and Accounts
Receivable of the Borrower; PROVIDED, that (i) the Borrower and the
Subsidiaries will in no event be required, in order to satisfy the Collateral
Requirement, to subject to the Lien of the Security Agreement Inventory or
Accounts Receivable of Joint Ventures and (ii) the Borrower will not be
required to cause Richmar Foods, Inc. to pledge the capital stock of Netco
Foods, Inc. unless and until Richmar Foods, Inc. becomes a Wholly Owned
Subsidiary.
-5-
"COMMITMENT" means a Revolving Commitment or Term Loan Commitment
or any combination thereof (as the context requires).
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, PROVIDED that there shall be
excluded the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the Borrower or
any of the Subsidiaries or the date that Person's assets are acquired by the
Borrower or any of the Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements as of such date.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DESIGNATED SUBSIDIARY" means a Subsidiary that is neither an
Equity Store nor a Business Development Venture.
"DOCUMENTATION AGENT" means Societe Generale, in its capacity as
documentation agent under this Agreement.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EBITDAR" means, for any period, Consolidated Net Income for such
period plus, to the extent deducted in determining such Consolidated Net
Income, the sum of income tax expense, depreciation expense, amortization
expense, Interest Expense, Rent Expense, Equity Investment Results and
non-cash charges taken after the Effective Date ("DESIGNATED NON-CASH
CHARGES") with respect to (i) write-downs of certain retail and distribution
facilities and related assets in connection with the proposed disposition of
such facilities or discontinuance of operations at such facilities, or
otherwise in accordance with GAAP or (ii) other consolidation and
restructuring of facilities and operations (PROVIDED, that any cash payment
made with respect to any such Designated Non-Cash Charge shall be subtracted
in computing EBITDAR during the period in which such cash payment is made),
minus, to the extent added in determining such Consolidated Net Income,
non-cash gains and income and Equity Investment Results all as determined in
accordance with GAAP on a consolidated basis for the Borrower and the
Subsidiaries; PROVIDED that, for purposes of determining EBITDAR, all cash
and non-cash charges incurred in
-6-
connection with the execution and delivery of this Agreement or the issuance
and sale of the Subordinated Notes shall be excluded.
"EFFECTIVE DATE" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"EQUITY INVESTMENT RESULTS" shall have the meaning given such term
in the consolidated financial statements of the Borrower referred to in
Section 3.04, and shall be computed in a manner consistent with that used in
preparing such statements.
"EQUITY STORE" means any Person participating in the Equity Store
Program.
"EQUITY STORE PROGRAM" means the business practice of the Borrower
and its Subsidiaries of making equity investment in Persons, and making or
guaranteeing loans to such Persons, for the purposes of assisting such Person
in acquiring, remodeling, refurbishing, expanding or operating one or more
retail grocery stores and pursuant to which such Person is permitted or
required to reduce the Borrower's or the Subsidiary's equity interest to a
minority position over time (usually five to 10 years).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
-7-
Borrowing, are LIBOR Loans or NIBOR Loans.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCLUDED TAXES" means, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b)
any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.19(b)), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.17(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a).
"FLOATING RATE SENIOR NOTES" means the Borrower's Floating Rate
Senior Notes due 2001.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for such
day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"FINANCING NOTES" means notes receivable arising from investments
in direct financing leases or in retailer notes or chattel paper (other than
any retailer note or chattel paper received in exchange or substitution for
or in payment or other satisfaction of any Account Receivable).
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
-8-
"FUNDED BANK DEBT" means, as of any date, the aggregate principal
amount of Loans and undrawn Letters of Credit outstanding hereunder and other
Indebtedness of the Borrower or any Subsidiary incurred under one or more
uncommitted lines of credit and the aggregate termination value of all
Hedging Agreements that are secured by the Collateral.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GRANTOR" means the Borrower and each Subsidiary that is, or is
required by Section 5.08 to be, a party to the Pledge Agreement or the
Security Agreement.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or in part), PROVIDED that the term Guarantee shall not include (a)
endorsements for collection or deposit in the ordinary course of business or
(b) agreements entered into in the ordinary course of business to purchase
inventory or retail store fixtures of another Person at a price not greater
than the market value thereof. The term "Guarantee" used as a verb has a
corresponding meaning.
"GUARANTEE AGREEMENT" means a Guarantee Agreement in substantially
the form of Exhibit C hereto among the Guarantors and the Administrative
Agent acting on behalf of the Lenders, as the same may be amended, modified
or supplemented from time to time in accordance with the provisions hereof.
"GUARANTEE REQUIREMENT" means at any date that (a) all Wholly Owned
Subsidiaries are Guarantors and (b) the assets of the Guarantors, together
with the assets of the Borrower, constituted as at the last day of the most
recently ended fiscal quarter of the Borrower at least 95% of the
consolidated total assets of the Borrower and its Subsidiaries; PROVIDED,
HOWEVER, that the Guarantee Requirement shall in no event be met unless each
Subsidiary that guarantees the Subordinated Notes or any other subordinated
Indebtedness of the Borrower shall be a Guarantor. For purposes of
-9-
this definition, assets shall be taken at their book value and all stock or
other equity interests in Subsidiaries and other intercompany items shall be
disregarded.
"GUARANTORS" means the Subsidiaries listed on Schedule 3.09 hereto
and each other Subsidiary that becomes party to the Guarantee Agreement
pursuant to Section 5.08 or otherwise, PROVIDED, that for purposes of the
definition of "Guarantee Requirement", a Subsidiary that is an indirect
Subsidiary of the Borrower shall not be considered a Guarantor unless each
intermediate Subsidiary is also a Guarantor.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement. The "principal amount" or "termination value" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such
Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as
a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
-10-
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated June 1997 distributed by the Borrower to prospective Lenders.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.07.
"INTEREST EXPENSE" means, for any period, the gross interest
expense of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September
and December, (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is
required to be repaid.
"INTEREST PERIOD" means (a) with respect to any LIBOR Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three
or six months (or, if each Lender shall make interest periods of such
duration available, nine or twelve months) thereafter, as the Borrower may
elect, and (b) with respect to any NIBOR Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in
the following calendar week; PROVIDED, that (i) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a LIBOR
Borrowing, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) in the case of a LIBOR Borrowing, any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"INVENTORY" has the meaning assigned to such term in the Security
Agreement.
"INVESTMENT" means any investment in any Person, whether by means
of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise; PROVIDED that Accounts Receivable arising in the ordinary course
of business do not constitute Investments.
"ISSUING BANKS" means The Chase Manhattan Bank, Societe
-11-
Generale and Bank of America National Trust and Savings Association in their
capacity as issuers of Letters of Credit hereunder, and their successors in
such capacity as provided in Section 2.05(i). Any Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by one or
more Affiliates of such Issuing Bank, PROVIDED, in each case, that the
Borrower does not reasonably object based on such Affiliate's
creditworthiness, and the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by it.
"JOINT VENTURE" means any Person, other than an Equity Store or
Business Development Venture, (a) that is formed by the Borrower after the
date hereof pursuant to arm's length negotiations with one or more Persons
that are not Affiliates of the Borrower, (b) in which the Borrower directly
or indirectly owns less than 80% of the equity and (c) no part of the
Borrower's investment in which was obtained through the conversion or
forgiveness of Indebtedness.
"LATER MATURING INDEBTEDNESS" means unsecured Indebtedness of the
Borrower incurred after the date hereof that has a final maturity at least
six months after the Term Loan Maturity Date and no portion of which is
subject to mandatory repayment or repurchase at the option of the holders
thereof or otherwise prior to such time (other than as a result of a change
in control of the Borrower).
"LC DISBURSEMENT" means a payment made by any Issuing Bank pursuant
to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Revolving
Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to
this Agreement, including the letters of credit issued by Societe Generale
that are set forth on Schedule 2.05.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on the LIBO Page of the Reuters
Information Service (or on any successor or substitute page of such service,
or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the
-12-
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the "LIBO RATE" with respect
to such Eurodollar Borrowing for such Interest Period shall be the rate at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"LIBOR" means, with respect to any Loan or Borrowing, any Loan or
Borrowing that bears interest at a rate determined by reference to the
Adjusted LIBO Rate.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the Guarantee Agreement and
the Security Documents.
"LOAN PARTIES" means the Borrower and the Subsidiary Loan Parties.
"LOANS" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to the Lenders under any
Loan Document.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $35,000,000.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than Indebtedness
outstanding hereunder), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount of $10,000,000 or more.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash
-13-
proceeds received by the Borrower and the Subsidiaries in respect of such
event including (i) any cash received in respect of any non-cash proceeds,
but only as and when received, (ii) in the case of a casualty, insurance
proceeds, and (iii) in the case of a condemnation or similar event,
condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Borrower and the
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale or other disposition of an asset (including
pursuant to a casualty or condemnation), the amount of all payments required
to be made by the Borrower and the Subsidiaries as a result of such event to
repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by the
Borrower and the Subsidiaries that are directly attributable to such event
(as determined reasonably and in good faith by the chief financial officer or
another Financial Officer of the Borrower).
"NIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the interest rate at which dollar deposits for an amount
approximately equal to the principal amount of such Borrowing and for a
seven-day maturity are offered in immediately available funds to the
Administrative Agent at the Eurodollar lending office where its foreign
currency and exchange operations are customarily conducted in the
international interbank market at approximately 10:00 a.m., New York City
time, two Business Days prior to the commencement of such Interest Period.
"NIBOR" means, with respect to any Loan or Borrowing, any Loan or
Borrowing that bears interest at a rate determined by reference to the
Adjusted NIBO Rate.
"1989 ESOP" means that portion of the Consolidated Saving Plus and
Stock Ownership Plan for Fleming Companies, Inc. and its Subsidiaries,
effective September 1, 1989, entitled "Fleming Stock Ownership Plan", or any
similar stock ownership plan for the sole benefit of employees of the
Borrower and its Subsidiaries.
"1994 CREDIT AGREEMENT" means the $2,200,000,000 Credit Agreement
dated as of July 19, 1994, as amended, among the Borrower, the several banks
and financial institutions from time to time party thereto and Morgan
Guaranty Trust Company of New York.
"OBLIGATIONS" has the meaning assigned to such term in the Security
Agreement.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing
-14-
similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Annex I
to the Security Agreement or any other form approved by the Collateral Agent.
"PERMITTED NOTE FINANCING" means any transaction involving the
transfer (by way of sale, pledge, or otherwise) by the Borrower or any of its
Subsidiaries of Financing Notes to any other Person, PROVIDED that after
giving effect to such transaction the sum of (i) the aggregate uncollected
balances of Financing Notes so transferred ("Transferred Notes") plus (ii)
the aggregate amount of all collections on Transferred Notes theretofore
received by the seller but not yet remitted to the purchaser, in each case at
the date of determination, would not exceed $500,000,000.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"PLEDGE AGREEMENT" means the Pledge Agreement substantially in the
form of Exhibit E hereto among the Borrower, the applicable Subsidiaries and
the Collateral Agent acting on behalf of the Secured Parties, as the same may
be amended, modified or supplemented from time to time in accordance with the
provisions hereof.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"RATINGS" shall refer to the ratings of Moody's and S&P applicable
to the Borrower's senior secured bank debt.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"RENT EXPENSE" means, for any period, the rent expense (net of
sub-lease income) of the Borrower and its Subsidiaries for such period for
leases of real and personal property, determined on a consolidated basis in
accordance with GAAP (excluding any such expense that is included in Interest
Expense for such period).
-15-
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of
the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity
Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed
as an amount representing the maximum aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender's Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is
$600,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans
and its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or,
if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of
Section 2.01.
"REVOLVING MATURITY DATE" means July 25, 2003.
"S&P" means Standard & Poor's Rating Group.
"SECURED PARTIES" shall have the meaning ascribed to such term in
the Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement substantially in
the form of Exhibit F hereto among the Borrower, the applicable Subsidiaries
and the Collateral Agent acting on behalf of the Secured Parties, as the same
may be amended, modified or supplemented from time to time in accordance with
the provisions hereof.
"SECURITY DOCUMENTS" means the Security Agreement, the Pledge
Agreement and each other security agreement or other instrument or document
executed and delivered pursuant to Section 4.01 or 5.08 in satisfaction of
the Collateral Requirement.
-16-
"10-5/8% SENIOR NOTE INDENTURE" means the Indenture dated as of
December 15, 1994, under which the 10-5/8% Senior Notes were issued.
"10-5/8% SENIOR NOTES" means the Borrower's 10-5/8% Senior Notes
due 2001.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate or Adjusted NIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall
be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBORDINATED NOTE DOCUMENTS" means the indentures under which the
Subordinated Notes are issued and all other instruments, agreements and other
documents evidencing or governing the Subordinated Notes or providing for any
Guarantee or other right in respect thereof.
"SUBORDINATED NOTES" means the Borrower's senior subordinated notes
due 2004 and 2007.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
-17-
"SWINGLINE LENDER" means The Chase Manhattan Bank, in its capacity
as lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SYNDICATION AGENT" means BancAmerica Securities, Inc., in its
capacity as syndication agent under this Agreement.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TEMPORARY CASH INVESTMENT" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated at least A-1 by S&P and P-1 by Moody's, (iii) time deposits with,
including certificates of deposit issued by, any office located in the United
States of any bank or trust company which is organized under the laws of the
United States or any state thereof and has capital, surplus and undivided
profits aggregating at least $500,000,000, (iv) repurchase agreements with
respect to securities described in clause (i) above entered into with an
office of a bank or trust company meeting the criteria specified in clause
(iii) above, (v) short-term tax exempt bonds rated at least AA- by S&P or AA3
by Moody's or (vi) shares in a mutual fund, the investment objectives and
policies of which require it to invest substantially all of its assets in
short-term tax exempt bonds rated at least AA- by S&P or AA3 by Moody's,
PROVIDED that in the case of clauses (i) through (v) above such Investment
matures within one year from the date of acquisition thereof by the Borrower
or a Subsidiary.
"TERM LENDER" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"TERM LOAN" means a Loan made pursuant to clause (a) of Section
2.01.
"TERM LOAN COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal
amount of the Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Term Loan Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Term Loan
Commitment, as applicable. The initial aggregate amount of the Lenders' Term
Loan Commitments is $250,000,000.
"TERM LOAN MATURITY DATE" means July 25, 2004.
"TERM LENDER" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
-18-
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Adjusted
NIBO Rate or the Alternate Base Rate.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but only
to the extent that such excess represents a potential liability of an ERISA
Affiliate to the PBGC or any other Person under Title IV of ERISA.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Borrower.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property"
-19-
shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
PROVIDED that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Administrative Agent or
the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make a Term Loan or Term Loans to
the Borrower on the Effective Date in a principal amount equal to its Term
Loan Commitment and (b) to make Revolving Loans to the Borrower from time to
time during the Revolving Availability Period in an aggregate principal
amount up to its Revolving Commitment, subject to the limitation that such
Lender's Revolving Exposure shall not exceed such Lender's Revolving
Commitment at any time. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan;
PROVIDED that any exercise of such option shall not affect the obligation of
the Borrower to
-20-
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each
ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than
$10,000,000; PROVIDED that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total Revolving
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall
be in an amount that is an integral multiple of $100,000 and not less than
$1,000,000. Borrowings of more than one Type and Class may be outstanding at
the same time; PROVIDED that there shall not at any time be more than a total
of 20 Eurodollar Revolving Borrowings and 20 Eurodollar Term Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Maturity Date or Term Loan Maturity Date, as
applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 12:00 noon, New York City time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) whether the requested Borrowing is to be a
Revolving Borrowing or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing, and, in the case of a Eurodollar
Borrowing, whether such Borrowing is to be a LIBOR Borrowing
or a NIBOR Borrowing;
(v) in the case of a LIBOR Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
-21-
(vi) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested LIBOR Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Revolving Availability
Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $30,000,000 or (ii) the sum of the total Revolving Exposures
exceeding the total Revolving Commitments; PROVIDED that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 1:00 p.m., New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
date (which shall be a Business Day) and amount of the requested Swingline
Loan. The Administrative Agent will promptly advise the Swingline Lender of
any such notice received from the Borrower. The Swingline Lender shall make
each Swingline Loan available to the Borrower by means of a credit to the
general deposit account of the Borrower with the Swingline Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 1:00 p.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans and the
interest accrued and not yet paid thereon. Each Revolving Lender
-22-
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply,
MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders), and
the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of
such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be
promptly remitted by the Administrative Agent to the Revolving Lenders that
shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance
of Letters of Credit for its own account, in a form reasonably acceptable to
the Administrative Agent and the applicable Issuing Banks, at any time and
from time to time during the Revolving Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
an Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. All letters of credit issued by Societe
Generale for the account of the Borrower that are set forth on Schedule 2.05
shall be deemed for all purposes to be Letters of Credit issued under this
Agreement.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank)
to an Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day),
the
-23-
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by such Issuing Bank, the Borrower also shall submit a letter of
credit application on such Issuing Bank's standard form in connection with
any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $300,000,000 and
(ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is 10 Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
the applicable Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the applicable Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage from time to time of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of the applicable Issuing
Bank, such Lender's Applicable Percentage of each LC Disbursement made by the
applicable Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) REIMBURSEMENT. If the applicable Issuing Bank shall make any
LC Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 12:00 noon, New York City
time, on the date that such LC Disbursement is made, if the Borrower shall
have received notice of such LC Disbursement prior to 10:00 a.m., New York
City time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon, New
York
-24-
City time, on the Business Day immediately following the day that the
Borrower receives such notice; PROVIDED that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower
fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender
shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrower, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders), and
the Administrative Agent shall promptly pay to the applicable Issuing Bank
the amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from the Borrower pursuant
to this paragraph, the Administrative Agent shall distribute such payment to
the applicable Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Revolving Lender pursuant to this paragraph to reimburse
the applicable Issuing Bank for any LC Disbursement (other than the funding
of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
-25-
(f) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by any Issuing Bank
under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, or (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent, the
Lenders nor the Issuing Banks, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control
of the Issuing Banks; provided that the foregoing shall not be construed to
excuse the Issuing Banks from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by any Issuing Bank's failure
to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of any Issuing Bank, the applicable Issuing
Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit,
the applicable Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The applicable
Issuing Bank shall promptly notify the Administrative Agent and the Borrower
by telephone (confirmed by telecopy) of such demand for payment and whether
such Issuing Bank has made or will make an LC Disbursement thereunder;
PROVIDED that any failure to give or
-26-
delay in giving such notice shall not relieve the Borrower of its obligation
to reimburse such Issuing Bank and the Revolving Lenders with respect to any
such LC Disbursement.
(h) INTERIM INTEREST. If any Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if the Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.13(c)
shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on and
after the date of payment by any Revolving Lender pursuant to paragraph (e)
of this Section to reimburse the applicable Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) REPLACEMENT OF AN ISSUING BANK. An Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the replaced Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to include such
successor or any previous Issuing Bank, or such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Revolving Lenders with LC Exposures representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash up to 100% of the
LC Exposure (as requested by the Administrative Agent or relevant Lenders, as
the case may be) as of such date plus any accrued and unpaid interest
thereon; PROVIDED that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h)
or (i) of Article VII.
-27-
Each such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent
to reimburse the applicable Issuing Bank for LC Disbursements for which it
has not been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make
each Loan (other than any Swingline Loan) to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by
12:30 p.m., New York City time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders;
PROVIDED that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request; PROVIDED that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.05(e) shall be remitted by the Administrative Agent
to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the
-28-
Borrower, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a LIBOR Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a LIBOR Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted
or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information, which shall be consistent with the
requirements of Section 2.02 and paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
LIBOR Borrowing or a NIBOR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a LIBOR Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed
-29-
to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and
of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
(f) A Borrowing of any Class may not be converted to or continued
as a Eurodollar Borrowing if after giving effect thereto (i) the Interest
Period therefor would commence before and end after a date on which any
principal of the Loans of such Class is scheduled to be repaid and (ii) the
sum of the aggregate principal amount of outstanding Eurodollar Borrowings of
such Class with Interest Periods ending on or prior to such scheduled
repayment date plus the aggregate principal amount of outstanding ABR
Borrowings of such Class would be less than the aggregate principal amount of
Loans of such Class required to be repaid on such scheduled repayment date.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless previously terminated, (i) the Term Loan Commitments shall terminate
at 5:00 p.m., New York City time, on the Effective Date,(ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date and (iii) all the
Commitments shall terminate if the initial borrowing hereunder shall not have
occurred by September 15, 1997.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; PROVIDED that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving
Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; PROVIDED that a
notice of
-30-
termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii)
to the Swingline Lender the then unpaid principal amount of each Swingline
Loan on the seventh Business Day after the date on which such Swingline Loan
is made.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
-31-
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the Borrower shall
repay Term Borrowings on each date set forth below in the aggregate principal
amount set forth opposite such date:
Date Amount
---- ------
December 31, 1997 $6,250,000
March 31, 1998 $6,250,000
June 30, 1998 $6,250,000
September 30, 1998 $6,250,000
December 31, 1998 $6,250,000
March 31, 1999 $6,250,000
June 30, 1999 $6,250,000
September 30, 1999 $6,250,000
December 31, 1999 $8,750,000
March 31, 2000 $8,750,000
June 30, 2000 $8,750,000
September 30, 2000 $8,750,000
December 31, 2000 $8,750,000
March 31, 2001 $8,750,000
June 30, 2001 $8,750,000
September 30, 2001 $8,750,000
December 31, 2001 $10,000,000
March 31, 2002 $10,000,000
June 30, 2002 $10,000,000
September 30, 2002 $10,000,000
December 31, 2002 $10,000,000
March 31, 2003 $10,000,000
June 30, 2003 $10,000,000
September 30, 2003 $10,000,000
December 31, 2003 $12,500,000
March 31, 2004 $12,500,000
June 30, 2004 $12,500,000
July 25, 2004 $12,500,000
-32-
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) If the initial aggregate amount of the Lenders' Term Loan
Commitments exceeds the aggregate principal amount of Term Loans that are
made on the Effective Date, then the scheduled repayments of Term Borrowings
to be made pursuant to this Section shall be reduced ratably by an aggregate
amount equal to such excess. Any prepayment of a Term Borrowing shall be
applied ratably to reduce the subsequent scheduled repayments of the Term
Borrowings to be made pursuant to this Section.
(d) Prior to any repayment or prepayment of any Term Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be repaid
and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 12:00 noon, New York City time,
three Business Days before the scheduled date of such repayment or
prepayment. Each repayment or prepayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments or
prepayments of Term Borrowings shall be accompanied by accrued interest on
the amount repaid or prepaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole
or in part, subject to the requirements of this Section.
-33-
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Asset Disposition, the Borrower shall, within 10 Business Days after such Net
Proceeds are received, prepay Term Borrowings in an aggregate amount equal to
50% of such Net Proceeds; PROVIDED that the Borrower shall not be subject to
such prepayment obligation to the extent that (i) within such period of 10
Business Days the Borrower applies such Net Proceeds to prepay, repurchase
and retire, or redeem (A) 10-5/8% Senior Notes, (B) other senior term
Indebtedness that is not Later Maturing Indebtedness or (C) Indebtedness
incurred in compliance with Section 6.03(a)(xiv) that refinances such Notes
or such senior term Indebtedness, in each case that is owed to Persons other
than the Borrower or any Subsidiary and is permitted to be prepaid,
repurchased or redeemed under Section 6.03(b), (ii) within such period of 10
Business Days the Borrower gives irrevocable notice of the prepayment or
redemption of Indebtedness referred to in the preceding clause (i) at the
earliest permissible date pursuant to the indenture or other instrument
governing such Indebtedness, or notifies the Administrative Agent of its
intent within 30 days to commence a tender offer for, or market purchases of,
such Indebtedness, and, pending the prepayment, redemption or purchase of
such Indebtedness, either (x) deposits such Net Proceeds with a trustee for
such Indebtedness or with the Administrative Agent (which shall invest such
Net Proceeds in Temporary Cash Investments if and as instructed by the
Borrower), in either case on terms reasonably satisfactory to the
Administrative Agent, or (y) applies such Net Proceeds to prepay Revolving
Loans (in which case an amount of the Revolving Commitments equal to the
amount of such prepayment shall be held available on the terms and conditions
of this Agreement for borrowing at the time funds are required to effect such
repayment, redemption or purchase and shall not be available for any other
purpose until such prepayment, redemption or purchase has been effected), or
(iii) within such period of 10 Business Days the Borrower notifies the
Administrative Agent that it intends to reinvest such Net Proceeds in capital
assets within 12 months after the receipt thereof, and within such 12 month
period the Borrower delivers to the Administrative Agent a notice certifying
that such Net Proceeds have in fact been so invested. If the Borrower gives
a notice pursuant to clause (ii) above and later determines that it is not
practical or not advisable to complete the repayment, redemption or purchase
contemplated by such notice, the Borrower may give a notice pursuant to
clause (iii) above. If the Borrower gives a notice pursuant to clause (ii)
above and Indebtedness is not prepaid, redeemed or repurchased within 120
days of such notice (and a notice pursuant to the preceding sentence is not
given), or if the Borrower gives a notice pursuant to clause (iii) above and
Net Proceeds are not reinvested within the 12-month period referred to in
such clause, the Borrower shall forthwith apply the relevant Net Proceeds to
prepay Term Borrowings.
-34-
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
incurrence of Indebtedness under Section 6.03(a)(iii), (iv) or (v), the
Borrower shall, within 10 Business Days after such Net Proceeds are received,
prepay Term Borrowings in an aggregate amount equal to such Net Proceeds;
PROVIDED that the Borrower shall not be subject to such prepayment obligation
to the extent that (i) within such period of 10 Business Days, the Net
Proceeds of such debt financing are applied to prepay, repurchase and retire,
or redeem (A) 10-5/8% Senior Notes, (B) other senior term Indebtedness that
is not Later Maturing Indebtedness or (C) Indebtedness incurred in compliance
with Section 6.03(a)(xiv) that refinances such Notes or such senior term
Indebtedness, in each case that is owed to Persons other than the Borrower or
any Subsidiary and is permitted to be prepaid, repurchased or redeemed under
Section 6.03(b), or (ii) within such period of 10 Business Days the Borrower
gives irrevocable notice of the prepayment or redemption of Indebtedness
referred to in the preceding clause (i) at the earliest permissible date
pursuant to the indenture or other instrument governing such Indebtedness, or
notifies the Administrative Agent of its intent within 30 days to commence a
tender offer for, or market purchases of, such Indebtedness, and, pending the
prepayment, redemption or purchase of such Indebtedness, either (x) deposits
such Net Proceeds with a trustee for such Indebtedness or with the
Administrative Agent (which shall invest such Net Proceeds in Temporary Cash
Investments if and as instructed by the Borrower), in either case on terms
reasonably satisfactory to the Administrative Agent, or (y) applies such Net
Proceeds to prepay Revolving Loans (in which case an amount of the Revolving
Commitments equal to the amount of such prepayment shall be held available on
the terms and conditions of this Agreement for borrowing at the time funds
are required to effect such repayment, redemption or purchase and shall not
be available for any other purpose until such prepayment, redemption or
purchase has been effected). If the Borrower gives a notice pursuant to
clause (ii) above and Indebtedness is not prepaid, redeemed or repurchased
within 120 days, the Borrower shall forthwith apply the relevant Net Proceeds
to prepay Term Borrowings.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section.
-35-
(e) The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Revolving Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the date of prepayment, (ii)
in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00
a.m., New York City time, on the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 1:00 p.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment
required by reason of any Asset Disposition or series of related Asset
Dispositions for Net Proceeds in excess of $25,000,000, a reasonably detailed
calculation of the amount of such prepayment; PROVIDED that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.08. Promptly following receipt of
any such notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.13.
SECTION 2.12. FEES. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of
each Commitment of such Lender during the period from and including the date
hereof to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears (i) in the case of
commitment fees in respect of the Revolving Commitments, on the last day of
March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof, and (ii) in the case of commitment fees in respect of
the Term Loan Commitments, on the Effective Date or any earlier date on which
such Commitments terminate. All commitment fees shall be computed on the
basis of a year of 365 or 366 days, as the case may be, and shall be payable
for the actual number of days elapsed (including the first day but excluding
the last day). For purposes of determining the unused portion of the
Revolving Commitments, the Revolving Commitment of a Lender shall be deemed
to be used to the extent of the outstanding Revolving Loans and LC Exposure
of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
-36-
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same
Applicable Rate as interest on Eurodollar Revolving Loans on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum separately
agreed upon between the Borrower and such Issuing Bank on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC
Exposure, as well as the applicable Issuing Bank's standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Effective
Date; PROVIDED that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date on
which the Revolving Commitments terminate shall be payable on demand. Any
other fees payable to an Issuing Bank pursuant to this paragraph shall be
payable within five days after demand. All participation fees and fronting
fees shall be computed on the basis of a year of 365 or 366 days, as the case
may be, and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the
Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate or Adjusted NIBO Rate, as the case may be,
for the Interest Period in effect for such Borrowing plus the Applicable Rate.
-37-
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal
of any Loan, 1% plus the rate otherwise applicable to such Loan as provided
in the preceding paragraphs of this Section or (ii) in the case of any other
amount, 1% plus the rate applicable to ABR Revolving Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or Adjusted NIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the Adjusted NIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the Adjusted NIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to
-38-
such notice no longer exist, (i) any Interest Election Request that requests
the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing; PROVIDED that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall
be permitted.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate or the Adjusted NIBO Rate)
or any Issuing Bank; or
(ii) impose on any Lender, any Issuing Bank, the London interbank
market or other relevant interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or
Issuing Bank hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender or Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered; PROVIDED, that no Lender or Issuing Bank shall be entitled under
this paragraph to receive compensation for any Excluded Taxes paid by it.
(b) If any Lender or Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by
the Issuing Bank, to a level below that which such Lender or the Issuing Bank
or such Lender's or Issuing Bank's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or Issuing
Bank's policies and the policies of such Lender's or Issuing Bank's holding
company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank
or such Lender's or Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing
-39-
Bank or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; PROVIDED
that the Borrower shall not be required to compensate a Lender or Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the
Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(g) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.19, then, in any such event, the
Borrower shall compensate each Lender for the economic loss, cost and expense
(but not for loss of profits) attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate or the
Adjusted NIBO Rate, as the case may be, that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the Eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
-40-
SECTION 2.17. TAXES. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case
may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of
a receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrower shall make each payment required to be made by
it hereunder or under any other Loan Document (whether of principal, interest
or fees, or of amounts payable under
-41-
Section 2.15, 2.16 or 2.17, or otherwise, where time of payment has not been
specified) prior to 12:30 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, except payments to be made directly to the applicable
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made
directly to the Persons entitled thereto and payments pursuant to other Loan
Documents shall be made to the Persons specified therein. The Administrative
Agent shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following receipt
thereof. If any payment under any Loan Document shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans, Term Loans and participations
in LC Disbursements and Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans; PROVIDED that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the
express terms
-42-
of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the applicable Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or Issuing Banks, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent pursuant to the Loan Documents for the
account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a)
If any Lender requests compensation under Section 2.15, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates if,
in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
-43-
(b) The Borrower may upon notice to any Lender and the
Administrative Agent, require such Lender (the "Departing Lender") to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment) (i) if the Commitments and Loans of the Departing Lender, taken
together with the Commitments and Loans of all other Lenders that have been
required to assign and delegate their interests, rights and obligations
pursuant to this clause (i), represent less than 10% of the aggregate
Commitments and Loans of all Lenders at the time of such notice; (ii) whether
or not the conditions of the preceding clause (i) are met, if the Departing
Lender has requested compensation under Section 2.15, or the Borrower is
required to pay any additional amount to such Lender or any Governmental
Authority for the account of such Lender pursuant to Section 2.17, or such
Lender has defaulted in its obligation to fund Loans hereunder; or (iii) if
the Required Lenders consent to such required assignment and delegation;
PROVIDED that (x) the Borrower shall have received the prior written consent
of the Administrative Agent (and, if a Revolving Commitment is being
assigned, each Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (y) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in
LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (z) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. A Lender shall not
be required to make any assignment and delegation under clause (ii) of this
paragraph (b) if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. CORPORATE EXISTENCE AND POWER. The Borrower is a
corporation duly incorporated, validly existing and in good standing under
the laws of Oklahoma, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 3.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Borrower of
this Agreement are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any Governmental
-44-
Authority and do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any judgment, injunction, order or decree or
the 10-5/8% Senior Note Indenture or any other material agreement or material
instrument binding upon the Borrower or result in the creation or imposition
of any Lien (other than those contemplated by the Security Documents) on any
asset of the Borrower or any of its Subsidiaries.
SECTION 3.03. BINDING EFFECT. This Agreement constitutes a valid
and binding agreement of the Borrower.
SECTION 3.04. FINANCIAL INFORMATION. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of
December 28, 1996, and the related consolidated statement of earnings and
statement of cash flows for the fiscal year then ended, reported on by
Deloitte & Touche and set forth in the Borrower's annual report to the
Securities and Exchange Commission on Form 10-K for such fiscal year, a copy
of which has been delivered to each of the Lenders and the Administrative
Agent, fairly present, in conformity with GAAP, the financial position of the
Borrower and its Subsidiaries as of such date and their results or operations
and cash flows for such fiscal year.
(b) The unaudited condensed consolidated balance sheet of the
Borrower and its Subsidiaries as of April 19, 1997, and the related unaudited
consolidated statement of earnings and condensed consolidated statement of
cash flows for the 16 weeks then ended, set forth in the Borrower's quarterly
report to the Securities and Exchange Commission on Form 10-Q for the fiscal
quarter ended April 19, 1997, a copy of which has been delivered to each of
the Lenders and the Administrative Agent, fairly present, in conformity with
GAAP applied on a basis consistent with the financial statements referred to
in paragraph (a) of this Section (except for the omission of substantially
all footnote disclosure as permitted by Regulation S-X promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as
amended), the financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their results of operations and cash flows
for such 16-week period (subject to normal year-end adjustments).
(c) Other than as disclosed in the Borrower's quarterly report on
Form 10-Q for the fiscal quarter ended April 19, 1997, there has been no
event or change in circumstances resulting in a Material Adverse Effect since
December 28, 1996.
SECTION 3.05. LITIGATION. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any Governmental Authority that draws into question the
validity of any Loan Document or in which there is a reasonable possibility
of an adverse decision that would be reasonably likely to result in a
material adverse effect on the creditworthiness of the Borrower (it being
understood that disclosure of any action, suit or proceeding in any filing
with the
-45-
Securities and Exchange Commission will not, in and of itself, be deemed to
establish a breach of this representation).
SECTION 3.06. COMPLIANCE WITH ERISA. Except as set forth in
Schedule 3.06, each ERISA Affiliate has fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to each Plan. Except as set
forth in Schedule 3.06, no ERISA Affiliate has (i) sought a currently
outstanding waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (ii) failed to make any contribution or payment
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any such Plan or Benefit Arrangement, which has
resulted or could result in the imposition of a Lien or the posting of a bond
or other security under ERISA or the Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
SECTION 3.07. ENVIRONMENTAL MATTERS. In the ordinary course of
its business, the Borrower reviews the effect of Environmental Laws which
could reasonably be expected to have any material effect, individually or in
the the aggregate, on the business, operations and properties of the Borrower
and its Subsidiaries, in the course of which it evaluates associated
liabilities and costs which it has identified (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by Environmental Laws or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in
the level of or change in the nature of operations conducted thereat, any
costs or liabilities in connection with off-site disposal of wastes or
Hazardous Materials, and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the
basis of this review, the Borrower has reasonably concluded that such
associated liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.
SECTION 3.08. TAXES. Tax returns of the Borrower and its
Subsidiaries have been examined and closed through the fiscal year ended
December 26, 1992. The Borrower and its Subsidiaries have filed all Tax
returns that are required to be filed by them and have paid all Taxes due
pursuant to such returns or pursuant to any assessment received by the
Borrower or any Subsidiary, except such Taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 3.09. SUBSIDIARIES. (a) Each of the Guarantors, and each
Subsidiary that is a Grantor, is a corporation or other
-46-
business entity duly incorporated or organized (as the case may be), validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization (as the case may be), and has all corporate or
other relevant organizational powers and all material licenses,
authorizations, consents and approvals of Governmental Authorities required
to carry on its business as now conducted. The execution, delivery and
performance by each Guarantor of the Guarantee Agreement are within such
Guarantor's corporate or other relevant organizational powers, have been duly
authorized by all corporate or other organizational action, require no action
by or in respect of, or filing with, any Governmental Authority and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of any such
Guarantor or of any judgment, injunction, order or decree or any material
agreement or material instrument binding upon such Guarantor.
(b) The Borrower does not have any subsidiaries other than the
Subsidiaries set forth on Schedule 3.09, which sets forth the name of, and
the ownership interest of the Borrower in, each Subsidiary and identifies
each Subsidiary that is a Guarantor or Grantor, in each case as of the date
hereof.
SECTION 3.10. NOT AN INVESTMENT COMPANY. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
SECTION 3.11. NO CONFLICTING REQUIREMENTS. Neither the Borrower
nor any Subsidiary is in violation of, or in default under, any provision of
applicable law, rule or regulation, or of its certificate of incorporation or
by-laws or of any agreement, judgment, injunction, order, decree or other
instrument binding upon it or any of its properties, which violation or
default could reasonably be expected to have consequences that would have a
Material Adverse Effect.
SECTION 3.12. DISCLOSURE. The material furnished to the
Administrative Agent and the Lenders by, or on behalf and with the consent
of, the Borrower (including the Information Memorandum) in connection with
the negotiation, execution and delivery of this Agreement, taken as a whole,
and as supplemented from time to time prior to the date of this Agreement,
does not contain as of the date hereof, any untrue statement of a material
fact and does not as of the date hereof omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any projections
and appraisals provided by the Borrower to the Administrative Agent and the
Lenders in connection herewith were prepared in good faith on the basis of
information and assumptions that the Borrower believed to be reasonable as of
the date such material was provided, and the Borrower believes that such
assumptions are reasonable as of the date hereof.
SECTION 3.13. SECURITY DOCUMENTS. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and
-47-
enforceable security interest in that portion of the Collateral covered in
the Pledge Agreement and, when the certificates and other instruments
referred to in Section 4.01(f) have been delivered to the Collateral Agent,
the Pledge Agreement shall constitute a fully perfected first priority Lien
on, and security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to
any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in that portion of the Collateral
covered in the Security Agreement and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Grantors thereunder in such Collateral, in each case prior and superior
in right to any other person, other than with respect to Liens expressly
permitted by Section 6.01 and the Security Agreement.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to
make Loans and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of each of (i) McAfee & Taft A Professional
Corporation, counsel for the Borrower, substantially in the form of
Exhibit B-1, and (ii) General Counsel of the Borrower, substantially in
the form of Exhibit B-2, and, in the case of each such opinion required
by this paragraph, covering such other matters as the Required Lenders
or Administrative Agent shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party and the authorization of the transactions contemplated hereby,
all in
-48-
form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the Borrower, confirming compliance with
the conditions set forth in paragraph (i) of this Section 4.01 and
paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Administrative Agent shall have received counterparts
of the Pledge Agreement signed on behalf of the Borrower and each
Subsidiary party thereto, together with stock certificates or other
instruments (if any) representing all the shares of capital stock or
other equity interests pledged thereunder and stock powers and instruments
of transfer, endorsed in blank, with respect to such stock certificates
and other equity interests.
(g) The Administrative Agent shall have received counterparts of
the Security Agreement signed on behalf of the Borrower and each
Subsidiary party thereto, together with:
(i) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded to create or perfect the Liens intended to be created
under the Security Agreement; and
(ii) a completed Perfection Certificate dated the Effective
Date and signed by an executive officer or Financial Officer of the
Borrower, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Loan Parties in
the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed
by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by Section 6.02 and
the Security Agreement or have been released.
(h) The Administrative Agent shall have received counterparts of
the Guarantee Agreement signed on behalf of the Borrower and each
Subsidiary party thereto.
(i) The Collateral Requirement and the Guarantee Requirement shall
have been satisfied as of the Effective Date.
-49-
(j) The Borrower shall have received or shall
substantially simultaneously with the effectiveness of the
Lenders' obligations hereunder receive, in cash, the net
proceeds from the issuance and sale by the Borrower of not
less than $400,000,000 of Subordinated Notes. The price at
which such Subordinated Notes shall have been sold shall not
be significantly less than their principal amount. The
Administrative Agent shall have received satisfactory
evidence of the foregoing and copies of the Subordinated
Note Documents, certified by a Financial Officer as complete
and correct.
(k) (i) The Borrower shall have given irrevocable
notice such that the 1994 Credit Agreement and all
commitments thereunder to lend shall terminate within three
days of the Effective Date, (ii) the principal of and
interest on all loans and all letter of credit reimbursement
obligations under the 1994 Credit Agreement, and all accrued
fees due thereunder, shall have been or shall simultaneously
on the Effective Date be paid in full and all Liens on the
assets of the Borrower or any Subsidiary securing any
obligations thereunder or under any related agreement shall
have been or shall simultaneously be permanently released
and (iii) the Administrative Agent shall have received or
shall simultaneously receive evidence satisfactory in form
and substance to it demonstrating such notice, payment and
release. The Borrower covenants that it shall pay promptly
(and in any event not later than 30 days after the Effective
Date) all accrued expenses and other amounts due under the
1994 Credit Agreement not specified in the preceding clause
(ii).
(l) The Administrative Agent shall have received
evidence satisfactory to it that (i) at least $200,000,000
aggregate principal amount of the Floating Rate Senior Notes
shall have been or shall, substantially simultaneously with
the effectiveness of the Lenders' obligations hereunder, be
redeemed or (ii) the Borrower shall have given irrevocable
notice of the redemption of such Notes at the earliest
permissible date pursuant to the indenture governing such
Notes and, pending such prepayment or redemption, shall have
deposited an amount sufficient to effect such redemption
with the trustee for such Notes or with the Administrative
Agent, in either case on terms reasonably satisfactory to
the Administrative Agent.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 12:00 noon, New York City
time, on September 15, 1997 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each
-50-
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Banks to issue, renew, extend or amend so as to increase the stated amount of
any Letter of Credit, is subject to the receipt of an appropriate Borrowing
Request under Section 2.03 or request for issuance, renewal, extension or
amendment of a Letter of Credit under Section 2.05, as the case may be, and
to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower
set forth in this Agreement shall be true and correct in all
material respects, and the representations and warranties of
the Borrower and the other Loan Parties set forth in the
other Loan Documents, taken as a whole, shall be true and
correct in all material respects, on and as of the date of
such Borrowing or the date of such issuance, amendment,
renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect
to such Borrowing or such issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each Borrowing and each such issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. INFORMATION. The Borrower will deliver to each of
the Lenders:
(a) as soon as available and in any event within
95 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of earnings and cash
flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year,
all reported on in a manner acceptable to the Securities and
Exchange Commission by Deloitte & Touche or other
independent public accountants of nationally recognized
standing;
(b) as soon as available and in any event within
50 days after the end of each of the first three quarters of
each fiscal year of the Borrower, (i) a consolidated
condensed balance sheet
-51-
of the Borrower and its Consolidated Subsidiaries as of the end
of such quarter setting forth in comparative form the figures
for the previous fiscal year end, (ii) the related consolidated
statement of earnings of the Borrower and its Consolidated
Subsidiaries for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such quarter setting
forth in comparative form the figures for the corresponding quarter
and the corresponding portion of the Borrower's previous
fiscal year, and (iii) the related consolidated condensed
statement of cash flows of the Borrower and its Consolidated
Subsidiaries for the portion of the Borrower's fiscal year
ended at the end of such quarter setting forth in
comparative form the figures for the corresponding portion
of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles
(except for the omission of substantially all footnote
disclosure as permitted by Regulation S-X promulgated by the
Securities and Exchange Commission under the Securities Act
of 1933, as amended) and consistency by the chief financial
officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate of the chief financial officer, the
treasurer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance
with the requirements of Sections 6.03, 6.06, 6.08 and 6.09
on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a
statement of the firm of independent public accountants that
reported on such statements (i) stating whether anything has
come to their attention to cause them to believe that any
Default existed on the date of such statements and
(ii) confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to
clause (c) above;
(e) simultaneously with the delivery of the financial
statements referred to in clause (a) above, a certificate
updating Schedule 3.09 (listing Subsidiaries and related
information) as of the end of the applicable fiscal year;
(f) within five Business Days after the obtaining of
the Borrower's Knowledge of any Default, a certificate of
the chief financial officer, treasurer or the chief
accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
-52-
(g) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent)
and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) that the Borrower shall have filed with the
Securities and Exchange Commission;
(i) if and when any ERISA Affiliate (i) gives or is
required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to
any Plan that might constitute grounds for a termination of
such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee
to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standing under
Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any
Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice
of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or
in respect of any Benefit Arrangement or makes any amendment
to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial
officer, treasurer or the chief accounting officer of the
Borrower setting forth details as to such occurrence and
action, if any, which the Borrower or applicable ERISA
Affiliate is required or proposes to take; and
(j) from time to time such additional information
regarding the financial position or business of the Borrower
as the Administrative Agent, at the request of any Lender,
may reasonably request.
SECTION 5.02. PAYMENT OF OBLIGATIONS. The Borrower
will pay and discharge, and will cause each Subsidiary to pay and
discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax
liabilities, except where the same may be contested in good faith
by appropriate proceedings or where the failure to do so would
not result in a Material Adverse Effect, and will maintain, and
will cause each Subsidiary to maintain, in accordance with
generally accepted
-53-
accounting principles, appropriate reserves for the accrual of any of the
same.
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so would not
have a Material Adverse Effect.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Borrower or in such Subsidiary's own
name) with financially sound and responsible insurance companies, insurance
on all their respective properties in at least such amounts and against at
least such risks (and with such risk retention) as are usually insured
against in the same general areas by companies of established repute engaged
in the same or a similar business; and will furnish to the Lenders, upon
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
The Borrower will continue, and will cause its Subsidiaries to continue, to
engage in business of the same general type as conducted by the Borrower and
its Subsidiaries taken as a whole, and will preserve, renew and keep in full
force and effect, and, except as permitted by Section 6.02, will cause each
Subsidiary to preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business.
SECTION 5.05. COMPLIANCE WITH LAWS. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of Governmental
Authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where the necessity of
compliance therewith or the resultant penalty, fine or cost for
non-compliance is contested in good faith by appropriate proceedings or where
the failure to do so would not have a Material Adverse Effect.
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower will keep, and will cause each Guarantor to keep, proper books of
record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities; and
will permit, and will cause each Subsidiary to permit, representatives of any
Lender at such Lender's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts
with their respective officers, employees and independent public accountants,
all at such reasonable times and as often as may reasonably be requested;
PROVIDED that this section shall not be construed to require the Borrower to
waive or cause to be waived any attorney-client privilege applicable to
information in the Borrower's or a Subsidiary's possession. Each Lender
agrees to maintain in
-54-
confidence any information conspicuously identified by the Borrower or any
Subsidiary as trade secrets or proprietary information which such Lender may
obtain as a result of the inspections, examinations and discussions
undertaken pursuant to this section; provided that each Lender (i) may
discuss any such information with any other Lenders; (ii) may furnish any
such information to its attorneys and accountants; (iii) may furnish any such
information to any agency, authority, commission or other regulatory body to
whose jurisdiction it may be subject, to any shareholder, director or other
person to whom it in good faith believes it owes a duty of disclosure under
applicable law and to any other person if required by law; and (iv) shall not
be prohibited from using, or seeking to admit as evidence, any such
information in connection with any litigation to which such Lender is a party.
SECTION 5.07. USE OF PROCEEDS. The proceeds of the Loans made
under this Agreement will be used by the Borrower only for general corporate
purposes.
SECTION 5.08. GUARANTEE REQUIREMENT; FURTHER ASSURANCES. (a) If
at any date the Guarantee Requirement is not met, the Borrower will promptly
cause one or more Subsidiaries that are not then Guarantors to become parties
to the Guarantee Agreement so as to cause the Guarantee Requirement to be met.
(b) If at any date the Collateral Requirement is not met, the
Borrower will promptly take and cause the Subsidiaries to take all such
actions as shall be necessary, or as the Required Lenders, the Administrative
Agent or the Collateral Agent may reasonably request, to cause the Collateral
Requirement to be met.
(c) The Borrower will, and will cause each Subsidiary to, execute
any and all further documents, financing statements, agreements and
instruments, and take all further action (including filing Uniform Commercial
Code and other financing statements) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to grant, confirm, preserve, protect
and perfect the validity and priority of the security interests created or
intended to be created by the Security Documents. Such security interests
and Liens shall be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in
form and substance satisfactory to the Collateral Agent, and the Borrower
shall deliver or cause to be delivered to the Lenders all such instruments
and documents (including legal opinions and lien searches) as the Collateral
Agent shall reasonably request to evidence compliance with this paragraph
(c). The Borrower shall provide from time to time such evidence as the
Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest.
-55-
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. LIENS. The Borrower will not, and will not permit
any Designated Subsidiary to, create, incur, assume or permit to exist any
Lien on any asset now owned or hereafter acquired by it, except:
(a) Liens created under the Loan Documents;
(b) Liens existing on the date hereof and described in
Schedule 6.01 hereto;
(c) any Lien existing on any asset of any Person at the
time (if after the date hereof) such Person becomes a
Consolidated Subsidiary and not created in contemplation of
such event;
(d) any Lien on any asset securing Indebtedness
incurred or assumed (after the date hereof) for the purpose
of financing all or any part of the cost of acquiring or
constructing such asset (other than any Lien on Inventory),
PROVIDED that such Lien attaches to such asset concurrently
with or within 180 days after the acquisition or completion
of construction thereof;
(e) any Lien on any asset of any Person existing at the
time (if after the date hereof) such Person is merged or
consolidated with or into the Borrower or a Consolidated
Subsidiary and not created in contemplation of such event;
(f) any Lien existing on any asset prior to the
acquisition thereof (if after the date hereof) by the
Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien
permitted by any of the foregoing clauses of this Section,
PROVIDED that such Indebtedness is not increased other than
by an amount equal to any reasonable financing fees and is
not secured by any additional assets;
(h) Liens arising in the ordinary course of its
business which (i) either (x) do not secure Indebtedness or
Hedging Agreements, (y) are statutory Liens or (z) apply to
equipment purchased pursuant to a title retention document
and (ii) either (x) do not in the aggregate materially
detract from the value of its assets or materially impair
the use thereof in the operation of its business or (y) are
being contested in good faith by appropriate proceedings,
which proceedings have the effect of
-56-
preventing the forfeiture or sale of the property or asset subject
to such Lien;
(i) any Lien on a Financing Note that is transferred in
a Permitted Note Financing;
(j) Liens in favor of the Borrower or another
Consolidated Subsidiary;
(k) Liens securing Indebtedness of the type described
in subsections 6.03(a)(viii) and (ix); and
(l) Liens not otherwise permitted by the foregoing
clauses of this Section securing Indebtedness or Hedging
Agreements, in an aggregate principal or stated amount at
any time outstanding not in excess of $30,000,000.
SECTION 6.02. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. The
Borrower will not, and will not permit any Designated Subsidiary to, be a
party to any merger or consolidation, PROVIDED that:
(a) any Subsidiary may consolidate with or merge into
the Borrower or another Subsidiary if in any such merger or
consolidation involving the Borrower, the Borrower shall be
the surviving or continuing corporation;
(b) any other corporation may consolidate with or merge
into the Borrower or any Subsidiary if (i) in any such
merger or consolidation involving the Borrower, the Borrower
shall be the surviving or continuing corporation, (ii) in
any such merger or consolidation involving a Subsidiary the
corporation resulting from such merger or consolidation
shall be a Subsidiary, and (iii) at the time of such merger
or consolidation and after giving effect thereto no Default
shall have occurred and be continuing;
(c) the Borrower may engage in a reorganization
pursuant to Section 368(a)(1)(F) of the Internal Revenue
Code solely for the purpose of changing its place of
organization; and
(d) this paragraph shall not prohibit any merger or
consolidation that would otherwise be permitted under the
immediately following paragraph.
Other than Permitted Notes Financings, the Borrower will not, and
will not permit any Designated Subsidiary to, sell, lease, transfer or
otherwise dispose of (by merger or otherwise to a Person who is not a Wholly
Owned Subsidiary) all or any part of its property if such transaction
involves a substantial part of the property of the Borrower and its
Subsidiaries. As used in this paragraph, a sale, lease, transfer or other
disposition of the property of the Borrower or a Subsidiary shall be deemed
to be a substantial part of such property if the amount of property proposed
to be disposed of when added to the amount of all other property sold,
leased, transferred or disposed of (other than in the ordinary course of
business and other
-57-
than as permitted by the next sentence) during any one fiscal year of the
Borrower contributed more than 20% of Consolidated Net Income for any one of
the immediately preceding three fiscal years of the Borrower. Notwithstanding
any other provision of this paragraph, the Borrower or any Subsidiary may
sell, lease, transfer or otherwise dispose of one or more warehouse
facilities, PROVIDED that (i) such transactions do not in the aggregate
involve all or substantially all of the property of the Borrower and its
Subsidiaries and (ii) the Borrower or any Subsidiary retains the right to
receive at least 85% of the revenue derived from such warehouse facilities,
notwithstanding the sale thereof.
SECTION 6.03. INDEBTEDNESS. (a) The Borrower will not, and will
not permit any Designated Subsidiary to, incur or at any time be liable with
respect to any Indebtedness except:
(i) Indebtedness outstanding under the Loan Documents;
(ii) the Subordinated Notes (and the related
Guarantees) and other Indebtedness outstanding on the date
hereof listed on Schedule 6.03(a)(ii);
(iii) Later Maturing Indebtedness the proceeds of which
are used to refinance the 10-5/8% Senior Notes, but only to
the extent the principal amount of such Later Maturing
Indebtedness does not exceed the principal amount of the 10-5/8%
Senior Notes so refinanced (plus the amount of any premium
actually paid on the Indebtedness so refinanced and the amount
of any expenses incurred in connection with such refinancing);
(iv) Later Maturing Indebtedness that is subordinated
to the Obligations on terms not less favorable to the
Lenders than the terms applicable to the Subordinated Notes;
(v) other Later Maturing Indebtedness in an aggregate
principal amount not to exceed $200,000,000;
(vi) Indebtedness of the Borrower to a Wholly Owned
Subsidiary or of a Consolidated Subsidiary to the Borrower
or a Wholly Owned Subsidiary or Indebtedness of the Borrower
to a Subsidiary that is not a Wholly Owned Subsidiary that
arises out of the Borrower's cash management activities in
the ordinary course of business;
(vii) (A) a Guarantor may Guarantee, on terms no more
favorable to the beneficiary than the Guarantee Agreement,
Later Maturing Indebtedness, the net proceeds of which are
used solely to repay Term Loans; PROVIDED that such
Indebtedness shall not be secured by the Security Documents
or otherwise; and (B) Guarantees of Indebtedness used to
refinance other Guaranteed Indebtedness where the
refinancing is permitted by this Section 6.03(a), so long as
no new guarantors are added and the terms of such Guarantee
are no more favorable to the beneficiaries than the
Guarantee of the refinanced Indebtedness;
-58-
(viii) obligations of the Borrower or any Subsidiary as
lessee under capital leases, and any Guarantees of such
obligations, but only to the extent that the Borrower or
such Subsidiary has entered into (and not terminated), or
has a binding commitment for, subleases on terms which, to
the Borrower, are at least as favorable, on a current basis,
as the terms of the corresponding capital lease;
(ix) obligations of the Borrower or its Subsidiaries
(other than as covered by clause (viii) above) as lessee
under capital leases the aggregate capitalized amount of
which does not exceed $580,000,000, and any Guarantees of
such obligations;
(x) Indebtedness assumed by the Borrower or any
Subsidiary in connection with an Acquisition (if after the
date hereof) and not created in contemplation of such
Acquisition;
(xi) Indebtedness of any corporation outstanding at the
time (if after the date hereof) such corporation becomes a
Consolidated Subsidiary and not created in contemplation of
such event;
(xii) Guarantees made by the Borrower or any Subsidiary
in connection with a Permitted Notes Financing;
(xiii) other unsecured Indebtedness maturing or
expiring less than one year after the incurrence thereof in
an aggregate principal amount outstanding at any time not to
exceed the unutilized portion of the Revolving Commitments
hereunder; and
(xiv) Indebtedness the proceeds of which are used to
refinance Indebtedness permitted by clause (ii), (iii), (iv)
(v), (x) or (xi) of this Section 6.03(a); PROVIDED that (A)
the principal amount of such Indebtedness does not exceed
that of the Indebtedness so refinanced (plus the amount of
any premium actually paid on the Indebtedness so refinanced
and the amount of any expenses incurred in connection with
such refinancing), (B) such Indebtedness does not have a
final maturity or weighted average life to maturity shorter
than that of the Indebtedness so refinanced, (C) the terms
of such Indebtedness (including any applicable subordination
terms) are no less favorable to the Borrower or the Lenders
than the terms of the Indebtedness so refinanced, (D) the
obligor on such Indebtedness is the same as the obligor on
the Indebtedness so refinanced (except with respect to the
Indebtedness permitted by clauses (x) and (xi) of this
Section 6.03(a)), (E) the Liens, Guarantees or other credit
support for such Indebtedness are no more favorable to the
obligee of such Indebtedness than such support for the
Indebtedness being refinanced and (F) intercompany
Indebtedness may only be so refinanced with other
intercompany Indebtedness.
(b) The Borrower will not, and will not permit any Subsidiary to,
make any prepayment of the principal of, or repurchase, redeem, defease or
otherwise retire prior to its stated maturity, any Indebtedness, except:
-59-
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness outstanding on the date hereof that
is repaid on the Effective Date (or that is designated to be
repaid within a specific period after the Effective Date on
Schedule 6.03(b)(ii)) with the proceeds of Loans made under
this Agreement or the proceeds of the Subordinated Notes;
(iii) Indebtedness of the Borrower to a Consolidated
Subsidiary or of a Consolidated Subsidiary to the Borrower
or another Consolidated Subsidiary;
(iv) Indebtedness of the character described in
clauses (vi), (viii), (ix), (x), (xi), (xii), (xiii) and
(xiv) of Section 6.03(a) that is not Later Maturing
Indebtedness;
(v) Later Maturing Indebtedness in an aggregate
principal amount not in excess of $10,000,000; and
(vi) in connection with the refinancing of such
Indebtedness where such refinancing is expressly permitted
by Section 6.03(a).
(c) The Borrower will not, and will not permit any of its
Subsidiaries, to enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities, and not for
speculative purposes.
SECTION 6.04. RESTRICTED PAYMENTS. The Borrower will not, and will
not permit any Subsidiary to, pay any dividend or other distribution with
respect to any shares of any class of the Borrower's capital stock, or
purchase, redeem or retire any shares of any class of such capital stock (or
any option, warrant or other right to acquire any shares of such capital
stock), if such dividend or distribution, or such purchase, redemption or
retirement, would be prohibited under any covenant contained in the
Subordinated Note Documents as originally executed.
SECTION 6.05. TRANSACTIONS WITH AFFILIATES. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, pay any
funds to or for the account of, make any investment (whether by acquisition
of stock or indebtedness, by loan, advance, transfer of property, guarantee
or other agreement to pay, purchase or service, directly or indirectly, any
Indebtedness, or otherwise) in, lease, sell, transfer or otherwise dispose of
any assets, tangible or intangible, to, or participate in, or effect any
transaction in connection with any joint enterprise or other joint
arrangement with, any Affiliate; PROVIDED HOWEVER, that the foregoing
provisions of this Section shall not prohibit (a) the Borrower from declaring
or paying any lawful dividend so long as, after giving effect thereto, no
Default shall have occurred and be continuing, (b) the Borrower or any
Subsidiary from making sales to or purchases
-60-
from any Affiliate and, in connection therewith, extending credit or making
payments, or from making payments for services rendered by any Affiliate, if
such sales or purchases are made or such services are rendered in the
ordinary course of business and on terms and conditions at least as favorable
to the Borrower or such Subsidiary as the terms and conditions which would
apply in a similar transaction with a Person not an Affiliate, (c) the
Borrower or any Subsidiary from making payments of principal, interest and
premium on any Indebtedness of the Borrower or such Subsidiary held by an
Affiliate if the terms of such Indebtedness are substantially as favorable to
the Borrower or such Subsidiary as the terms which could have been obtained
at the time of the creation of such Indebtedness from a lender which was not
an Affiliate, (d) the Borrower or any Subsidiary from participating in, or
effecting any transaction in connection with, any joint enterprise or other
joint arrangement with any Affiliate if the Borrower or such Subsidiary
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates, (e) the
Borrower or any Subsidiary from making payments of reasonable compensation,
fees and expenses to their respective directors and executive officers for
services rendered to the board of directors of the Borrower or any Subsidiary
or any committee of any thereof and (f) the Borrower or any Subsidiary from
performing its obligations under certain real property leases listed on
Schedule 6.05 or other leases or obligations entered or undertaken by a
Subsidiary before it becomes a Subsidiary.
SECTION 6.06. ACQUISITIONS AND INVESTMENTS. Neither the Borrower
nor any Designated Subsidiary will make any Acquisitions or Investments
except:
(i) Temporary Cash Investments;
(ii) Investments by the Borrower in any Wholly Owned
Subsidiary and Investments by any Wholly Owned Subsidiary in
the Borrower or in any other Wholly Owned Subsidiary;
(iii) any Acquisition or Investment, to the extent the
consideration therefor consists of shares of capital stock
of the Borrower;
(iv) the reclassification of any Investment originally
made in the form of Indebtedness as an Investment by way of
capital contribution or share purchase or the
reclassification of any Investment originally made by way of
capital contribution or share purchase as an Investment in
the form of Indebtedness;
(v) Accounts Receivable converted to Investments, so
long as such Investments either mature within one year or
are in an outstanding aggregate unrecovered amount
(excluding those maturing within one year) not exceeding
$20,000,000 in any year;
(vi) Investments deemed to exist as a result of
Guarantees permitted under Section 6.03(a); and
(vii) other Acquisitions or Investments (other than
-61-
Acquisitions and Investments covered by clauses (i) through
(vi) above) where the consideration for such Acquisition or
Investment, when aggregated with the total consideration for
all other Acquisitions and Investments made from the date
hereof through the applicable date of measurement (other
than Acquisitions and Investments covered by clauses (i)
through (vi) above), does not exceed the amount set forth
below for the year in which such Acquisition or Investment
is to be made:
Period Amount
------ ------
Effective Date through December 31,1997 $250,000,000
January 1,1998 through December 31,1998 $300,000,000
January 1,1999 through December 31,1999 $350,000,000
Thereafter $400,000,000
PROVIDED that as at any time of determination the amount set
forth above for any year shall be increased by (A) the net
proceeds received at any time after the date hereof by the
Borrower or any Subsidiary in respect of sales or other
transfers of Financing Notes, less any non-contingent amount
paid or payable by the Borrower or any Subsidiary with
respect to credit losses associated with, or other recourse
to the Borrower or any Subsidiary with respect to, any such
Financing Notes, (B) the amount of cash or Temporary Cash
Investments received by the Borrower or any Subsidiary
representing the net proceeds of any loan repayment or
return of capital in respect of an Investment previously
made which was either permitted only by this
subsection (vii) or would have been permitted only by this
subsection (vii) if this Agreement had been in effect at the
time such Investment was made, (C) the amount of any
Guarantee previously issued which was either permitted only
by this subsection (vii) or would have been permitted only
by this subsection (vii) if this Agreement had been in
effect at the time such Guarantee was issued, to the extent
such Guarantee is subsequently terminated without any
payment having been made pursuant thereto and (D) an amount
equal to 50% of the Net Proceeds of Asset Dispositions
received by the Borrower and the Subsidiaries after the date
hereof; PROVIDED FURTHER that the amounts set forth above
shall be increased as under the 1994 Credit Agreement in
accordance with Schedule 6.06(vii) hereto.
SECTION 6.07. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Borrower will not, and will not permit any of its
Subsidiaries that are Guarantors or Grantors to, create or otherwise cause or
suffer to exist or become effective any consensual restriction on the ability
of such Subsidiary to pay, directly or indirectly, to the Borrower or another
Subsidiary any dividends or other distributions on such Subsidiary's capital
stock or make or
-62-
repay loans or advances to or from the Borrower or another Subsidiary.
SECTION 6.08. FIXED CHARGE COVERAGE RATIO. The Borrower shall not
permit the ratio of EBITDAR to the sum of (i) Interest Expense, (ii) Rent
Expense and (iii) dividends paid on preferred stock of the Borrower for any
period of four consecutive fiscal quarters ending after the date hereof to be
less than 1.70 to 1.00.
SECTION 6.09. RATIO OF INVENTORY AND ACCOUNTS RECEIVABLE TO FUNDED
BANK DEBT. The Borrower shall not permit the ratio of Inventory and Accounts
Receivable of the Borrower and its Subsidiaries on a consolidated basis (net
of the allowance for doubtful accounts and excluding Inventory and Accounts
Receivable subject to consensual Liens in favor of third parties (PROVIDED
that in the case of any such consensual Lien securing obligations not greater
than $250,000, Inventory and Accounts Receivable will be excluded only in the
amount of the obligations so secured) or in which the Administrative Agent,
on behalf of the Lenders, does not have a perfected security interest prior
to any other Lien that can be perfected by filing under the Uniform
Commercial Code) to Funded Bank Debt on any date to be less than 1.40 to 1.00.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any
Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under
this Agreement or any other Loan Document, when and as the
same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) (i) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement (other than any such document
covered by clause (ii) of this paragraph (c)) shall prove to
have been incorrect or misleading in any material respect
when made (or deemed made) or (ii) the representations,
warranties, certifications and statements made by the
Borrower and each Loan Party in the other Loan Documents and
in the certificates, financial statements and other
documents delivered thereunder, taken as a whole, shall
prove to have been incorrect or misleading in any material
respect when made (or deemed made);
-63-
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in
Section 5.01(f), 5.04 (insofar as it relates to the
corporate existence of the Borrower), Section 5.07 or
Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will
be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make
any payment (whether of principal or interest and regardless
of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable or within any
applicable grace period;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or
holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or
any Guarantor or Grantor or its debts, or of a substantial
part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Guarantor or Grantor or for
a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) the Borrower or any Guarantor or Grantor shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
the Borrower or any Guarantor or Grantor or
-64-
for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Guarantor or Grantor shall
become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in
an aggregate amount in excess of $10,000,000 shall be
rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged
for a period of 60 days during which execution shall not be
effectively stayed, or any judgment creditor shall legally
take possession of or sell any significant assets of the
Borrower or any Subsidiary to enforce any such judgment;
(l) (i) any ERISA Affiliate shall fail to pay when due
an amount or amounts aggregating in excess of $15,000,000
which it shall have become liable to pay under Title IV of
ERISA; (ii) or notice of intent to terminate a Material
Plan shall be filed under Title IV of ERISA by any ERISA
Affiliate, any plan administrator or any combination of the
foregoing; (iii) or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to
administer any Material Plan; (iv) or a condition shall
exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; (v) or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA (a "4219 Default"), with respect to, one
or more Multiemployer Plans which could cause one or more
ERISA Affiliates to incur a current payment obligation in
excess of $15,000,000;
(m) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan
Party not to be, a valid and perfected Lien on any
Collateral, with the priority required by the applicable
Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a
result of the Administrative Agent's failure to maintain
possession of any stock certificates or instruments
delivered to it under the Pledge Agreement; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following
-65-
actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the
Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and
all fees and other obligations of the Borrower accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or
(i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as Administrative
-66-
Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02) or in the absence of its own gross negligence or wilful
misconduct. The Administrative Agent shall not be deemed to have knowledge
of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to
be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent. Neither the Syndication Agent nor the Documentation
Agent shall have any obligation, liability, responsibility or duty under this
Agreement.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Banks and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by
-67-
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Banks, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to Fleming Companies, Inc. at
P.O. Box 26647, 6301 Waterford Boulevard, Oklahoma City,
OK 73126, Attention of Mr. John M. Thompson (Telecopy
No. (405) 840-7202) with a copy to McAfee & Taft A
Professional Corporation at Two Leadership Square, 10th
Floor, 211 North Robinson, Oklahoma City, OK 73102-7103,
Attention of Brice Tarzwell, Esq. (Telecopy No. (405) 235-0439);
(b) if to the Administrative Agent, to The Chase
Manhattan Bank, Loan and Agency Services Group, One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Ms. Sandra
-68-
Miklave (Telecopy No. (212) 552-5658), with a copy to
The Chase Manhattan Bank, 2200 Ross Avenue, 3rd Floor,
Dallas, TX 75201, Attention of Mr. Matthew Hildreth
(Telecopy No. (214) 965-2044);
(c) if to the Issuing Banks, to them at (i) The Chase
Manhattan Bank, Loan and Agency Services Group, One Chase
Manhattan Plaza, 8th Floor, New York, NY 10081, Attention of
Ms. Sandra Miklave (Telecopy No. (212) 552-5658), (ii) Bank
of America National Trust and Savings Association, 333 Clay
Street, Suite 4550, Houston, TX 77002, Attention of Mr.
Steve Mernick (Telecopy No. (713) 651-4841) and
(iii) Societe Generale, 2001 Ross Avenue, Suite 4800,
Dallas, TX 75201, Attention of Mr. Richard M. Lewis
(Telecopy No. (214) 979-1104);
(d) if to the Swingline Lender, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan
Plaza, 8th Floor, New York, NY 10081, Attention of
Ms. Sandra Miklave (Telecopy No. (212) 552-5658); and
(e) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Banks and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document
or consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or any Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative
-69-
Agent or Collateral Agent, as the case may be, and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the
Required Lenders; PROVIDED that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan or LC Disbursement, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
any Guarantor from its Guarantee under the Guarantee Agreement (except as
expressly provided therein), or limit its liability in respect of such
Guarantee, without the written consent of each Lender, (vii) release all or
substantially all of the Collateral from the Liens of the Security Documents,
without the written consent of each Lender or (viii) change any provisions of
any Loan Document in a manner that by its terms adversely affects the rights
in respect of payments due to Lenders holding Loans of any Class differently
than those holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each affected Class; PROVIDED FURTHER that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Banks or the Swingline Lender without the
prior written consent of the Administrative Agent, the Issuing Banks or the
Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Term Lenders) or
the Term Lenders (but not the Revolving Lenders) may be effected by an
agreement or agreements in writing entered into by the Borrower and requisite
percentage in interest of the affected Class of Lenders.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Banks in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses
-70-
incurred upon an Event of Default by the Administrative Agent, any Issuing
Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection
with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "INDEMNITEE") against, and hold
each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of any Loan Document or any other agreement or
instrument contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of
the transactions contemplated hereby, (ii) any Loan or Letter of Credit or
the use of the proceeds therefrom (including any refusal by any Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; PROVIDED that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted
from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, an Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; PROVIDED that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or the Swingline Lender in its
capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at the time. To the extent
such amounts are later reimbursed by the Borrower, the Administrative Agent
shall promptly reimburse the Lenders for the amount thereof.
(d) To the extent permitted by applicable law, the Borrower
-71-
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated hereby, any Loan or Letter of Credit or
the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby
(including any Affiliate of an Issuing Bank that issues any Letter of
Credit), except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including
any Affiliate of an Issuing Bank that issues any Letter of Credit) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Banks and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); PROVIDED
that (i) except in the case of an assignment to a Lender or a Federal Reserve
Bank, each of the Borrower and the Administrative Agent (and, in the case of
an assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the
applicable Issuing Bank and the Swingline Lender as the case may be) must
give their prior written consent to such assignment (which consent shall not
be unreasonably withheld), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of
Commitments or Loans, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, and (v) the assignee, if it
shall not be a Lender, shall
-72-
deliver to the Administrative Agent an Administrative Questionnaire; and
PROVIDED FURTHER that any consent of the Borrower otherwise required under
this paragraph shall not be required if an Event of Default under clause (h)
or (i) of Article VII has occurred and is continuing. Subject to acceptance
and recording thereof pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, any Issuing Bank and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such
-73-
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Banks and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents;
PROVIDED that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; PROVIDED that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, any Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and
-74-
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17
and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement, the other Loan Document and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the
account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
-75-
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference
-76-
only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. The Administrative Agent, each
Issuing Bank and each Lender agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a)
to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any Governmental
Authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach by it of this
Section or (ii) becomes available to it on a nonconfidential basis from a
source other than the Borrower. For the purposes of this Section,
"INFORMATION" means all information received from the Borrower and relating
to the business and affairs of Borrower or any Subsidiary, other than any
such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary; PROVIDED that, in the case of information
received from the Borrower or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord
to its own confidential information. The provisions of this Section shall
supersede and replace any confidentiality agreement heretofore delivered to
the Borrower by the Administrative Agent, any Issuing Bank or any Lender.
-77-
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"),
shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but
were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
FLEMING COMPANIES, INC.
by
/s/ John M. Thompson
--------------------------------------------------
Name: John M. Thompson
Title: Vice President and
Treasurer
THE CHASE MANHATTAN BANK, individually and as Administrative Agent,
by
/s/ Marian N. Schulman
--------------------------------------------------
Name: Marian N. Schulman
Title: Vice President
BANCAMERICA SECURITIES, INC., as Syndication Agent,
by
/s/ Robert Karen
--------------------------------------------------
Name: Robert Karen
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
by
/s/ J. Stephen Mernick
--------------------------------------------------
Name: J. Stephen Mernick
-78-
Title: Senior Vice President
BANK OF HAWAII,
by
/s/ Kenneth M. Loveless
--------------------------------------------------
Name: Kenneth M. Loveless
Title: Assistant Vice President
BANK OF MONTREAL,
by
/s/ Julia B. Buthman
--------------------------------------------------
Name: Julia B. Buthman
Title: Managing Director
BANK OF SCOTLAND,
by
/s/ Janet Taffe
--------------------------------------------------
Name: Janet Taffe
Title: Assistant Vice President
COMERICA BANK,
by
/s/ Reginald M. Goldsmith, III
--------------------------------------------------
Name: Reginald M. Goldsmith, III
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by
/s/ Robert Ivosevich
--------------------------------------------------
Name: Robert Ivosevich
Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
by
/s/ Masayoshi Komaki
--------------------------------------------------
Name: Masayoshi Komaki
Title: Vice President
FIRST HAWAIIAN BANK,
by
/s/ Travis Ruetenik
--------------------------------------------------
Name: Travis Ruetenik
Title: Corporate Banking Officer
-79-
THE FUJI BANK, LIMITED, HOUSTON AGENCY
by
/s/ Philip C. Lauinger III
Name: Philip C. Lauinger III
--------------------------------------------------
Title: Vice President &
Manager
LIBERTY BANK AND TRUST COMPANY OF OKLAHOMA CITY, N.A.,
by
/s/ Mark C. Demos
--------------------------------------------------
Name: Mark C. Demos
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
by
/s/ Sadao Muraoka
--------------------------------------------------
Name: Sadao Muraoka
Title: Head of Southwest Region
MANUFACTURERS AND TRADERS TRUST COMPANY,
by
/s/ Geoffrey R. Fenn
--------------------------------------------------
Name: Geoffrey R. Fenn
Title: Vice President
MEESPIERSON N.V.,
by
/s/ Karel Louman
--------------------------------------------------
Name: Karel Louman
Title: Senior Vice President
THE MITSUBISHI TRUST & BANKING CORPORATION, CHICAGO BRANCH,
by
/s/ Hachiro Rosoda
--------------------------------------------------
Name: Mr. Hachiro Rosoda
Title: Deputy General Manager
-80-
NATIONAL BANK OF CANADA,
by
/s/ Larry L. Sears
--------------------------------------------------
Name: Larry L. Sears
Title: Group Vice President
by
/s/ Randall K. Wilhoit
--------------------------------------------------
Name: Randall K. Wilhoit
Title: Vice President
NATIONAL CITY BANK KENTUCKY,
by
/s/ Todd W. Ethington
--------------------------------------------------
Name: Todd W. Ethington
Title: Vice President
THE SANWA BANK, LIMITED,
by
/s/ Matthew G. Patrick
--------------------------------------------------
Name: Matthew G. Patrick
Title: Vice President
THE SUMITOMO BANK OF CALIFORNIA,
by
/s/ Shuji Ito
--------------------------------------------------
Name: Shuji Ito
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by
/s/ Harumitsu Seki
--------------------------------------------------
Name: Harumitsu Seki
Title: General Manager
THE SUMITOMO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH,
by
/s/ Suraj Bhatia
--------------------------------------------------
Name: Suraj Bhatia
Title: Senior Vice President
-81-
TRANSAMERICA BUSINESS CREDIT CORPORATION,
by
/s/ Steven Fischer
--------------------------------------------------
Name: Steven Fischer
Title: Senior Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST,
by
/s/ Jeffrey W. Maillet
--------------------------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President & Director
-82-