Execution Copy
EXHIBIT 10
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CREDIT AGREEMENT
AMONG
FLOWERS FOODS, INC.,
VARIOUS LENDERS,
BANK OF AMERICA, N.A.,
HARRIS TRUST AND SAVINGS BANK
AND
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN BANK, B.A.,
"RABOBANK INTERNATIONAL", NEW YORK BRANCH,
AS CO-DOCUMENTATION AGENTS,
SUNTRUST BANK,
AS SYNDICATION AGENT,
AND
DEUTSCHE BANK AG, NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT
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DATED AS OF OCTOBER 24, 2003
AND
AMENDED AND RESTATED AS OF OCTOBER 29, 2004
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DEUTSCHE BANK SECURITIES INC.,
AS SOLE LEAD ARRANGER AND BOOKRUNNER
TABLE OF CONTENTS
Page
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SECTION 1. Amount and Terms of Credit........................................................... 1
1.01 The Commitments......................................................................... 1
1.02 Minimum Amount of Each Borrowing........................................................ 3
1.03 Notice of Borrowing..................................................................... 3
1.04 Disbursement of Funds................................................................... 4
1.05 Notes................................................................................... 5
1.06 Conversions............................................................................. 6
1.07 Pro Rata Borrowings..................................................................... 6
1.08 Interest................................................................................ 7
1.09 Interest Periods........................................................................ 7
1.10 Increased Costs, Illegality, etc........................................................ 8
1.11 Compensation............................................................................ 10
1.12 Change of Lending Office................................................................ 11
1.13 Replacement of Lenders.................................................................. 11
1.14 Incremental Revolving Loan Commitments.................................................. 12
SECTION 2. Letters of Credit.................................................................... 14
2.01 Letters of Credit....................................................................... 14
2.02 Minimum Stated Amount................................................................... 15
2.03 Letter of Credit Requests............................................................... 15
2.04 Letter of Credit Participations......................................................... 16
2.05 Agreement to Repay Letter of Credit Drawings............................................ 18
2.06 Increased Costs......................................................................... 19
SECTION 3. Facility Fee; Other Fees; Reductions of Commitment................................... 19
3.01 Fees.................................................................................... 19
3.02 Optional Commitment Reductions.......................................................... 20
3.03 Mandatory Reduction of Commitments...................................................... 21
SECTION 4. Prepayments; Payments; Taxes......................................................... 21
4.01 Voluntary Prepayments................................................................... 21
4.02 Mandatory Repayments and Cash Collateralizations........................................ 22
4.03 Method and Place of Payment............................................................. 23
4.04 Net Payments; Taxes..................................................................... 23
SECTION 5. Conditions Precedent to the Restatement Effective Date............................... 25
5.01 Execution of Agreement; Notes........................................................... 25
5.02 Officer's Certificate................................................................... 25
5.03 Opinions of Counsel..................................................................... 25
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TABLE OF CONTENTS
(continued)
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5.04 Corporate Documents; Proceedings; etc................................................... 26
5.05 Existing Credit Agreement............................................................... 26
5.06 Guaranties.............................................................................. 26
5.07 Outstanding Indebtedness; Preferred Stock............................................... 26
5.08 Adverse Change; Governmental Approvals; etc............................................. 27
5.09 Litigation.............................................................................. 27
5.10 Financial Statements.................................................................... 27
5.11 Solvency Certificate; Leverage Ratio Certificate........................................ 27
5.12 Fees, etc............................................................................... 28
SECTION 6. Conditions Precedent to All Credit Events............................................ 28
6.01 Restatement Effective Date.............................................................. 28
6.02 No Default; Representations and Warranties.............................................. 28
6.03 Notice of Borrowing; Letter of Credit Request........................................... 28
SECTION 7. Representations, Warranties and Agreements........................................... 29
7.01 Corporate Status........................................................................ 29
7.02 Corporate Power and Authority........................................................... 29
7.03 No Violation............................................................................ 29
7.04 Governmental Approvals.................................................................. 30
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc.... 30
7.06 Litigation.............................................................................. 31
7.07 True and Complete Disclosure............................................................ 31
7.08 Use of Proceeds; Margin Regulations..................................................... 31
7.09 Tax Returns and Payments................................................................ 31
7.10 Compliance with ERISA................................................................... 32
7.11 Properties.............................................................................. 32
7.12 Subsidiaries............................................................................ 33
7.13 Compliance with Statutes, etc........................................................... 33
7.14 Investment Company Act.................................................................. 33
7.15 Public Utility Holding Company Act...................................................... 33
7.16 Environmental Matters................................................................... 33
7.17 Labor Relations......................................................................... 33
7.18 Patents, Licenses, Franchises and Formulas.............................................. 34
7.19 Scheduled Existing Indebtedness, etc.................................................... 34
SECTION 8. Affirmative Covenants................................................................ 34
8.01 Information Covenants................................................................... 34
8.02 Books, Records and Inspections.......................................................... 37
8.03 Maintenance of Property; Insurance...................................................... 37
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TABLE OF CONTENTS
(continued)
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8.04 Corporate Franchises.................................................................... 37
8.05 Compliance with Statutes, etc........................................................... 37
8.06 Compliance with Environmental Laws...................................................... 37
8.07 ERISA................................................................................... 38
8.08 End of Fiscal Years; Fiscal Quarters.................................................... 39
8.09 Payment of Taxes........................................................................ 39
8.10 Additional Subsidiary Guarantors........................................................ 39
8.11 Use of Proceeds......................................................................... 39
SECTION 9. Negative Covenants................................................................... 39
9.01 Liens................................................................................... 39
9.02 Consolidations, Mergers, Sales of Assets and Acquisitions............................... 41
9.03 Dissolution, etc........................................................................ 42
9.04 Restricted Payments..................................................................... 42
9.05 Indebtedness............................................................................ 43
9.06 Transactions with Affiliates............................................................ 43
9.07 Maximum Leverage Ratio.................................................................. 43
9.08 Minimum Interest Coverage Ratio......................................................... 43
9.09 Business................................................................................ 43
9.10 Limitation on Certain Restrictions on Subsidiaries...................................... 43
9.11 Limitation on Issuance of Capital Stock................................................. 44
SECTION 10. Events of Default.................................................................... 44
10.01 Payments................................................................................ 44
10.02 Representations, etc.................................................................... 44
10.03 Covenants............................................................................... 44
10.04 Default Under Other Agreements.......................................................... 45
10.05 Bankruptcy, etc......................................................................... 45
10.06 ERISA................................................................................... 45
10.07 Subsidiaries Guaranty................................................................... 46
10.08 Judgments............................................................................... 46
10.09 Change of Control....................................................................... 46
SECTION 11. Definitions and Accounting Terms..................................................... 47
11.01 Defined Terms........................................................................... 47
SECTION 12. The Agents........................................................................... 66
12.01 Appointment............................................................................. 66
12.02 Nature of Duties........................................................................ 66
12.03 Lack of Reliance on the Agents.......................................................... 66
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TABLE OF CONTENTS
(continued)
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12.04 Certain Rights of the Agents............................................................ 67
12.05 Reliance................................................................................ 67
12.06 Indemnification......................................................................... 67
12.07 The Agent in its Individual Capacity.................................................... 67
12.08 Holders................................................................................. 68
12.09 Resignation by the Agents............................................................... 68
12.10 Delivery of Information................................................................. 69
12.11 The Syndication Agent, the Co-Documentation Agents and the Lead Arranger................ 69
SECTION 13. Miscellaneous........................................................................ 69
13.01 Payment of Expenses, etc................................................................ 69
13.02 Right of Setoff......................................................................... 70
13.03 Notices................................................................................. 71
13.04 Benefit of Agreement.................................................................... 71
13.05 No Waiver; Remedies Cumulative.......................................................... 73
13.06 Payments Pro Rata....................................................................... 73
13.07 Calculations; Computations.............................................................. 74
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.................. 74
13.09 Counterparts............................................................................ 75
13.10 Effectiveness........................................................................... 75
13.11 Headings Descriptive.................................................................... 76
13.12 Amendment or Waiver; etc................................................................ 76
13.13 Survival................................................................................ 77
13.14 Domicile of Loans....................................................................... 77
13.15 Limitation on Additional Amounts, etc................................................... 77
13.16 Confidentiality......................................................................... 78
13.17 Register................................................................................ 78
13.18 USA Patriot Act Notice.................................................................. 79
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TABLE OF CONTENTS
(continued)
SCHEDULE I Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Existing Letters of Credit
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Liens
SCHEDULE VI Scheduled Existing Indebtedness
EXHIBIT A-1 Notice of Borrowing
EXHIBIT A-2 Notice of Conversion/Continuation
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Opinion of Jones Day, counsel to the Credit Parties
EXHIBIT E-2 Opinion of Stephen R. Avera, general counsel of the Borrower and
special counsel to the other Credit Parties
EXHIBIT F Officers' Certificate
EXHIBIT G Subsidiaries Guaranty
EXHIBIT H Solvency Certificate
EXHIBIT I Assignment and Assumption Agreement
EXHIBIT J Compliance Certificate
EXHIBIT K Joinder Agreement
EXHIBIT L Incremental Revolving Loan Commitment Agreement
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CREDIT AGREEMENT, dated as of October 24, 2003 and amended and restated as
of October 29, 2004, among FLOWERS FOODS, INC., a Georgia corporation (the
"Borrower"), the Lenders party hereto from time to time, BANK OF AMERICA, N.A.,
HARRIS TRUST AND SAVINGS BANK and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEN
BANK, B.A., "RABOBANK INTERNATIONAL", NEW YORK BRANCH, as co-documentation
agents (in such capacity, collectively, the "Co-Documentation Agents" and each,
a "Co-Documentation Agent"), SUNTRUST BANK, as syndication agent (in such
capacity, the "Syndication Agent"), and DEUTSCHE BANK AG, NEW YORK BRANCH, as
administrative agent (in such capacity, the "Administrative Agent") (all
capitalized terms used herein and defined in Section 11 are used herein as
therein defined).
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions from time to time
party thereto and DBAG, as administrative agent, are party to a Credit
Agreement, dated as of October 24, 2003 (as amended, restated, modified and/or
supplemented to, but not including, the Restatement Effective Date, the
"Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing Credit
Agreement in its entirety in the form of this Agreement subject to and on the
terms and conditions set forth herein and the Lenders are willing to make
available to the Borrower the credit facility provided for herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent
agree that, on the Restatement Effective Date, the Existing Credit Agreement
shall be and is hereby amended and restated in its entirety as follows:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions set
forth herein, each Lender severally agrees to make, at any time and from time to
time on or after the Restatement Effective Date and prior to the Maturity Date,
a revolving loan or revolving loans (each, a "Revolving Loan" and, collectively,
the "Revolving Loans") to the Borrower, which Revolving Loans (i) shall be
denominated in Dollars, (ii) shall, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which, when added to the product of (x) such Lender's
Percentage and (y) the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the aggregate principal amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Commitment of such
Lender at such time and (v) shall not exceed for all Lenders at any time
outstanding that aggregate principal amount which, when added to (x) the
aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and
(y) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make at any time and from time to time on or
after the Restatement Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each, a "Swingline Loan" and, collectively,
the "Swingline Loans") to the Borrower, which Swingline Loans (i) shall be
incurred and maintained as Base Rate Loans, (ii) shall be denominated in
Dollars, (iii) may be repaid and reborrowed in accordance with the provisions
hereof, (iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of all Revolving
Loans then outstanding and the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds
of, and simultaneously with the incurrence of, the respective incurrence of
Swingline Loans) at such time, an amount equal to the Total Commitment at such
time, and (v) shall not exceed in the aggregate principal amount at any time
outstanding the Maximum Swingline Amount. Notwithstanding anything to the
contrary contained in this Section 1.01(b), (i) the Swingline Lender shall not
be obligated to make any Swingline Loans at a time when a Lender Default exists
unless the Swingline Lender has entered into arrangements satisfactory to it and
the Borrower to eliminate the Swingline Lender's risk with respect to the
Defaulting Lender's or Defaulting Lenders' participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender's or Defaulting
Lenders' Percentage of the outstanding Swingline Loans and (ii) the Swingline
Lender shall not make any Swingline Loan after it has received written notice
from the Borrower, any other Credit Party or the Required Lenders stating that a
Default or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission of all
such notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the Required
Lenders.
(c) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders that the Swingline Lender's outstanding
Swingline Loans shall be funded with one or more Borrowings of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 10.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Lenders pro rata based on each such
Lender's Percentage (determined before giving effect to any termination of the
Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be applied directly by the Swingline Lender to repay the Swingline
Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably
agrees to make Revolving Loans upon one Business Day's notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the
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preceding sentence and on the date specified in writing by the Swingline Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing, and
(v) the amount of the Total Commitment at such time. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower), then each
Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause the Lenders to share in such Swingline Loans
ratably based upon their respective Percentages (determined before giving effect
to any termination of the Commitments pursuant to the last paragraph of Section
10), provided that (x) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the respective
participation is required to be purchased and, to the extent attributable to the
purchased participation, shall be payable to the participant from and after such
date and (y) at the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be required to pay the
Swingline Lender interest on the principal amount of participation purchased for
each day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days and
at the interest rate otherwise applicable to Revolving Loans maintained as Base
Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to such Loans; provided that Mandatory Borrowings shall be made in
the amounts required by Section 1.01(c). More than one Borrowing may occur on
the same date, but at no time shall there be outstanding more than eight
Borrowings of Eurodollar Loans in the aggregate.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
Revolving Loans hereunder (excluding Borrowings of Swingline Loans and Revolving
Loans incurred pursuant to Mandatory Borrowings), an Authorized Representative
of the Borrower shall give the Administrative Agent at the Notice Office prior
written notice (or telephonic notice promptly confirmed in writing) not later
than 10:00 A.M. (New York time) on the date of each Base Rate Loan incurred
hereunder, and not later than 11:00 A.M. (New York time) on the third Business
Day prior to each Eurodollar Loan incurred hereunder. Each such written notice
or written confirmation of telephonic notice (each a "Notice of Borrowing"),
except as otherwise expressly provided in Section 1.10, shall be irrevocable and
shall be given by an Authorized Representative of the Borrower in the form of
Exhibit A-1, appropriately completed to specify: (i) the aggregate principal
amount of the Revolving Loans to be incurred pursuant to such Borrowing, (ii)
the date of such Borrowing (which shall be a Business Day) and (iii) whether the
Revolving Loans being incurred pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or, to the extent permitted hereunder, Eurodollar
Loans and, if Eurodollar Loans, the initial Interest Period to be applicable
thereto. The Administrative Agent shall promptly give each Lender notice of such
proposed Borrowing, of the Lender's proportionate
3
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, an Authorized Representative of the Borrower shall give the Swingline
Lender not later than 12:00 Noon (New York time) on the date that a Swingline
Loan is to be incurred, written notice (or telephonic notice promptly confirmed
in writing) of each Swingline Loan to be incurred hereunder. Each such notice
shall be irrevocable and specify in each case (A) the date of Borrowing (which
shall be a Business Day) and (B) the aggregate principal amount of the Swingline
Loans to be incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing, conversion or
prepayment of Loans, the Administrative Agent or the Swingline Lender, as the
case may be, may act without liability upon the basis of telephonic notice of
such Borrowing, conversion or prepayment, as the case may be, believed by the
Administrative Agent or the Swingline Lender, as the case may be, in good faith
to be from an Authorized Representative of the Borrower prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's and the Swingline Lender's record of the
terms of such telephonic notice of such Borrowing, conversion or prepayment of
Loans, as the case may be, absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (New York time) on
the date specified in each Notice of Borrowing (or (w) in the case of Revolving
Loans to be maintained as Base Rate Loans, no later than 2:00 P.M. (New York
time) on the date specified in the respective Notice of Borrowing, (x) in the
case of Swingline Loans, no later than 2:00 P.M. (New York time) on the date
specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, no later than 12:00 Noon (New York time) on the date specified in
Section 1.01(c)), each Lender will make available its pro rata portion
(determined in accordance with Section 1.07) of each such Borrowing requested to
be made on such date (or in the case of Swingline Loans, the Swingline Lender
shall make available the full amount thereof). All such amounts will be made
available in Dollars and in immediately available funds at the Payment Office,
and the Administrative Agent will, except in the case of Revolving Loans made
pursuant to a Mandatory Borrowing, make available to the Borrower at the Payment
Office the aggregate of the amounts so made available by the Lenders ((x) for
Loans other than Swingline Loans and Revolving Loans maintained as Base Rate
Loans, prior to 1:00 P.M. (New York time) on such day, to the extent of funds
actually received by the Administrative Agent prior to 12:00 Noon (New York
time) on such day and (y) for Swingline Loans and Revolving Loans maintained as
Base Rate Loans, prior to 3:00 P.M. (New York time) on such day, to the extent
of funds actually received by the Administrative Agent prior to 2:00 P.M. (New
York time) on such day). Unless the Administrative Agent shall have been
notified by any Lender prior to the date of Borrowing that such Lender does not
intend to make available to the Administrative Agent such Lender's portion of
any Borrowing to be made on such date, the Administrative Agent may assume that
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such Lender has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower to immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
on demand from such Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower until the
date such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if recovered from such Lender, the overnight Federal
Funds Rate for the first three days and at the interest rate otherwise
applicable to such Loans for each day thereafter and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Lender shall be evidenced in the Register
maintained by the Administrative Agent pursuant to Section 13.17 and shall, if
requested by such Lender, also be evidenced (i) in the case of Revolving Loans,
by a promissory note duly executed and delivered by the Borrower substantially
in the form of Exhibit B-1, with blanks appropriately completed in conformity
herewith (each a "Revolving Note" and, collectively, the "Revolving Notes") and
(ii) in the case of Swingline Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Lender shall (i) be executed
by the Borrower, (ii) be payable to such Lender or its registered assigns and be
dated the Restatement Effective Date (or, if issued to an Eligible Transferee
after the Restatement Effective Date, be dated the date of issuance thereof),
(iii) be in a stated principal amount equal to the Commitment of such Lender and
be payable in the principal amount of the outstanding Revolving Loans evidenced
thereby, (iv) mature on the Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the Swingline Lender or its
registered assigns and be dated the Restatement Effective Date, (iii) be in a
stated principal amount equal to the Maximum Swingline Amount and be payable in
the principal amount of the outstanding Swingline Loans evidenced thereby from
time to time, (iv) mature on the Swingline Expiry Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans evidenced
5
thereby, (vi) be subject to voluntary prepayment as provided in Section 4.01,
and mandatory repayment as provided in Section 4.02, and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and prior to any transfer of
any of its Notes will endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect the Borrower's
obligations in respect of such Loans.
(e) Notwithstanding anything to the contrary contained above in this
Section 1.05 or elsewhere in this Agreement, Notes shall only be delivered to
Lenders which at any time (or from time to time) specifically request the
delivery of such Notes. No failure of any Lender to request or obtain a Note
evidencing its Loans to the Borrower shall affect or in any manner impair the
obligations of the Borrower to pay the Loans (and all related Obligations)
incurred by the Borrower which would otherwise be evidenced thereby in
accordance with the requirements of this Agreement, and shall not in any way
affect the guaranties therefor provided pursuant to the various Credit
Documents. Any Lender which does not have a Note evidencing its outstanding
Loans shall in no event be required to make the notations otherwise described in
preceding clause (d). At any time when any Lender requests the delivery of a
Note to evidence any of its Loans, the Borrower shall (at its expense) promptly
execute and deliver to the respective Lender the requested Note or Notes in the
appropriate amount or amounts to evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on any
Business Day, all or a portion equal to at least the Minimum Borrowing Amount of
the outstanding principal amount of Revolving Loans made pursuant to one or more
Borrowings of one or more Types of Revolving Loans into a Borrowing of another
Type of Revolving Loan, provided that (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only on
the last day of an Interest Period applicable to the Revolving Loans being
converted and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
unless the Required Lenders specifically otherwise agree in writing, Base Rate
Loans may only be converted into Eurodollar Loans if no Specified Default or
Event of Default is in existence on the date of the conversion and (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at the Notice Office prior to 12:00 Noon (New York time) at least three Business
Days' prior notice (each a "Notice of Conversion/Continuation") in the form of
Exhibit A-2, appropriately completed to specify the Revolving Loans to be so
converted, the Borrowing or Borrowings pursuant to which such Revolving Loans
were made and, if to be converted into Eurodollar Loans, the Interest Period to
be initially applicable thereto. The Administrative Agent shall give each Lender
prompt notice of any such proposed conversion.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans (including
Mandatory Borrowings) under this Agreement shall be incurred from the Lenders
pro rata on the basis of
6
their Commitments. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Revolving Loans hereunder
and that each Lender shall be obligated to make the Revolving Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make
its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate per annum which
shall be equal to the sum of the Applicable Margin plus the Base Rate as in
effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which
shall, during each Interest Period applicable thereto, be equal to the sum of
the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater of (x) the rate which is 2% in excess of the rate
then borne by such Loans and (y) the rate which is 2% in excess of the rate
otherwise applicable to Base Rate Loans from time to time, and all other overdue
amounts payable hereunder and under any other Credit Document shall bear
interest at a rate per annum equal to the rate which is 2% in excess of the rate
applicable to Base Rate Loans from time to time. Interest that accrues under
this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan (x) quarterly in arrears on each Quarterly
Payment Date, (y) on the case of a repayment in full of all outstanding Base
Rate Loans, on the date of such repayment or prepayment, and (z) at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand, and
(ii) in respect of each Eurodollar Loan (x) on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (y) on any repayment or prepayment (on the
amount repaid or prepaid), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to the
respective Eurodollar Loans and shall promptly notify the Borrower and the
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect, by
having
7
an Authorized Representative of the Borrower give the Administrative Agent
notice thereof, the interest period (each an "Interest Period") applicable to
such Eurodollar Loan, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six-month period, provided that, in each case:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Base Rate Loan) and each
Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on
the first succeeding Business Day; provided, however, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a
day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(v) unless otherwise agreed in writing by the Required
Lenders, no Interest Period may be selected at any time when any
Specified Default or any Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing of
Eurodollar Loans shall be selected which extends beyond the Maturity
Date; and
(vii) the selection of Interest Periods shall be subject to
the provisions of Section 1.02.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Lender
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
8
(i) on any Interest Determination Date that, by reason of any
changes arising after the Original Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the
Original Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but
not limited to: (A) a change in the basis of taxation of payment to
any Lender of the principal of or interest on the Loans or the Notes
or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or net
profits of such Lender, or any franchise tax based on the net income
or profits of such Lender, in either case pursuant to the laws of
the United States of Americas, the jurisdiction in which it is
organized or in which its principal office or applicable lending
office is located or any subdivision thereof or therein), but
without duplication of any amounts payable in respect of Taxes
pursuant to Section 4.04(a), or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate and/or (y) other circumstances arising since the
Original Effective Date affecting such Lender, the interbank
Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance
by any Lender in good faith with any governmental request (whether
or not having force of law) or (z) impracticable as a result of a
contingency occurring after the Original Effective Date which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees, subject to the provisions of Section 13.15 (to the extent
applicable), to pay to such Lender, upon such Lender's written request therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its reasonable
discretion shall determine) as shall be required to compensate such Lender for
such increased
9
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Lender, showing the basis for
the calculation thereof, submitted to the Borrower by such Lender in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law. Each of the
Administrative Agent and each Lender agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event described
in clause (iii) above ceases to exist as to a Lender, the obligations of such
Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar
Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii), the Borrower may, and in the
case of a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii), the Borrower shall, either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least one Business Day's
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan at the end of the then
current Interest Period or at such earlier date as may be required to eliminate
such circumstance or to comply with applicable law, provided that if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If any Lender determines that after the Original Effective Date
the introduction or effectiveness of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitment
hereunder or its Loans or obligations hereunder, then the Borrower agrees,
subject to the provisions of Section 13.15 (to the extent applicable), to pay to
such Lender, upon its written demand therefor, such additional amounts as shall
be required to compensate such Lender or such other corporation for the
increased cost to such Lender or such other corporation or the reduction in the
rate of return to such Lender or such other corporation as a result of such
increase of capital. In determining such additional amounts, each Lender will
act reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Lender's determination of compensation
owing under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Lender, upon determining
that any additional amounts will be payable pursuant to this Section 1.10(c),
will give written notice thereof to the Borrower, which notice shall show the
basis for calculation of such additional amounts.
1.11 Compensation. The Borrower agrees, subject to the provisions of
Section 13.15 (to the extent applicable), to compensate each Lender, upon its
written request (which request
10
shall set forth in reasonable detail the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its Eurodollar Loans but excluding loss of anticipated profits) which
such Lender may sustain: (i) if for any reason (other than a default by such
Lender or the Administrative Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the
Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment
(including any repayment made pursuant to Sections 1.13, 4.01, 4.02, 13.12(b) or
as a result of an acceleration of the Loans pursuant to Section 10) or
conversion of any of its Eurodollar Loans occurs on a date which is not the last
day of an Interest Period with respect thereto; (iii) if any prepayment of any
of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay Eurodollar Loans when required by the terms of
this Agreement or any Note held by such Lender or (y) any election made pursuant
to Section 1.10(b).
1.12 Change of Lending Office. Each Lender agrees that upon the occurrence
of any event giving rise to the operation of Section 1.10(a)(ii) or (iii),
Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(y) upon the occurrence of an event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect
to any Lender which results in such Lender charging to the Borrower increased
costs in excess of those being generally charged by the other Lenders or (z) as
provided in Section 13.12(b) in the case of a refusal by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower shall have the right, if no
Default or Event of Default then exists (or, in the case of preceding clause (z)
will exist immediately after giving effect to such replacement), to replace such
Lender (the "Replaced Lender") with one or more other Eligible Transferee or
Transferees, none of whom shall constitute a Defaulting Lender at the time of
such replacement (collectively, the "Replacement Lender") and each of whom shall
be required to be reasonably acceptable to the Administrative Agent, provided
that (i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to
said Section 13.04(b) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all of the Commitments and outstanding
Revolving Loans of, and in each case participations in Letters of Credit by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender in respect thereof an amount equal to the sum of (A) an amount
11
equal to the principal of, and all accrued and unpaid interest on, all
outstanding Revolving Loans of the Replaced Lender, (B) an amount equal to all
Unpaid Drawings that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then accrued and unpaid interest with respect thereto
at such time, and (C) an amount equal to all accrued, but theretofore unpaid,
Fees owing to the Replaced Lender pursuant to Section 3.01, (y) each Issuing
Lender an amount equal to such Replaced Lender's Percentage of any Unpaid
Drawing (which at such time remains an Unpaid Drawing) to the extent such amount
was not theretofore funded by such Replaced Lender to such Issuing Lender,
together with all then accrued and unpaid interest with respect thereto at such
time and (z) the Swingline Lender an amount equal to such Replaced Lender's
Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Lender to the Swingline Lender, together
with all then accrued and unpaid interest thereon at such time and (ii) all
Obligations of the Borrower due and owing to the Replaced Lender at such time
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreement, the payment
of amounts referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate
Revolving Note executed by the Borrower, the Replacement Lender shall become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01
and 13.06), which shall survive as to such Replaced Lender.
1.14 Incremental Revolving Loan Commitments. (a) So long as the
Incremental Revolving Loan Commitment Requirements are satisfied at the time of
the delivery of the request referred to below, the Borrower shall have the right
at any time and from time to time and upon at least 5 Business Days' prior
written notice to the Administrative Agent, to request on no more than two
occasions per fiscal year of the Borrower (or, with the prior written approval
of the Administrative Agent, on no more than three occasions per fiscal year of
the Borrower) that one or more Lenders (and/or one or more other Persons which
will become Lenders as provided below) provide Incremental Revolving Loan
Commitments and, subject to the applicable terms and conditions contained in
this Agreement, make Revolving Loans pursuant thereto; it being understood and
agreed, however, that (i) no Lender shall be obligated to provide an Incremental
Revolving Loan Commitment as a result of any such request by the Borrower, (ii)
until such time, if any, as (x) such Lender (or other Person who qualifies as an
Eligible Transferee) has agreed in its sole discretion to provide an Incremental
Revolving Loan Commitment and executed and delivered to the Administrative Agent
an Incremental Revolving Loan Commitment Agreement in respect thereof as
provided in clause (b) of this Section 1.14 and (y) the Incremental Revolving
Loan Commitment Requirements shall have been satisfied, such Lender shall not be
obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment
as in effect prior to giving effect to such Incremental Revolving Loan
Commitment provided pursuant to this Section 1.14, (iii) any Lender (or any
other Person who qualifies as an Eligible Transferee) may so provide an
Incremental Revolving Loan Commitment without the consent of any other Lender,
(iv) any Incremental Revolving Loan Commitments added to the Total Commitment on
a given date pursuant to this Section 1.14 shall be in a minimum aggregate
amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess
thereof, (v) the aggregate amount of all Incremental Revolving Loan Commitments
permitted to be provided
12
pursuant to this Section 1.14 shall not cause the Total Commitment to exceed
$225,000,000 (after giving effect to all such Incremental Revolving Loan
Commitments), and (vi) all actions taken by the Borrower pursuant to this
Section 1.14 shall be done in coordination with the Administrative Agent. For
the avoidance of doubt, the Borrower may request Incremental Revolving Loan
Commitments from Persons reasonably acceptable to the Administrative Agent and
each Issuing Lender which would qualify as Eligible Transferees without first
requesting such Incremental Revolving Loan Commitments from the then existing
Lenders.
(b) In connection with the Incremental Revolving Loan Commitments to
be provided pursuant to this Section 1.14, (i) the Borrower, the Administrative
Agent and each such Lender or other Eligible Transferee (each, an "Incremental
RL Lender") which agrees to provide an Incremental Revolving Loan Commitment
shall execute and deliver to the Administrative Agent an Incremental Revolving
Loan Commitment Agreement, with the effectiveness of such Incremental RL
Lender's Incremental Revolving Loan Commitment to occur upon delivery of such
Incremental Revolving Loan Commitment Agreement (fully executed by all Persons
party thereto) to the Administrative Agent, the payment of any fees required in
connection therewith (including, without limitation, any agreed upon up-front or
arrangement fees owing to the Administrative Agent) and (ii) the Incremental
Revolving Loan Commitment Requirements shall have been satisfied as of the
relevant Incremental Revolving Loan Commitment Date. The Administrative Agent
shall promptly notify each Lender as to the effectiveness of each Incremental
Revolving Loan Commitment Agreement, and upon the effectiveness of such
Incremental Revolving Loan Commitment Agreement (i) the Total Commitment under,
and for all purposes of, this Agreement shall be increased by the aggregate
amount of such Incremental Revolving Loan Commitments, (ii) Schedule I shall be
deemed modified to reflect the revised or new Commitments of the affected
existing Lenders and each new Person added as a Lender (provided such new Person
qualifies as an Eligible Transferee), which Commitment shall equal (x) in the
case of a Person providing an Incremental Revolving Loan Commitment who was not
a Lender prior to effectiveness of the Incremental Revolving Loan Commitment
Agreement, an amount equal to the Incremental Revolving Loan Commitment for such
Person as described in such Incremental Revolving Loan Commitment Agreement and
(y) in the case of a Person providing an Incremental Revolving Loan Commitment
who is an existing Lender, an amount equal to the sum of the Incremental
Revolving Loan Commitment for such Person as described in such Incremental
Revolving Loan Commitment Agreement plus such Lender's Commitment immediately
prior to giving effect to such Incremental Revolving Loan Commitment Agreement
and (iii) to the extent requested by any Incremental RL Lender, Revolving Notes
will be issued, at the Borrower's expense, to such Incremental RL Lender, to be
in conformity with the requirements of Section 1.05 (with appropriate
modification) to the extent needed to reflect the new Commitment made by such
Incremental RL Lender.
(c) In connection with any provision of Incremental Revolving Loan
Commitments pursuant to this Section 1.14, the Lenders and the Borrower hereby
agree that, notwithstanding anything to the contrary contained in this
Agreement, (i) the Borrower shall, in coordination with the Administrative
Agent, (x) repay outstanding Revolving Loans of certain of the Lenders, and
incur additional or new Revolving Loans from certain other Lenders (including
the Incremental RL Lenders) or (y) take such other actions as may be reasonably
required by the Administrative Agent (including by requiring new Revolving Loans
to be incurred and added to then outstanding Borrowings of the respective
Revolving Loans, even though as a result thereof
13
such new Loans (to the extent required to be maintained as Eurodollar Loans) may
have a shorter Interest Period than the then outstanding Borrowings of the
respective Revolving Loans), in each case to the extent necessary so that all of
the Lenders effectively participate in each outstanding Borrowing of Revolving
Loans pro rata on the basis of their Percentages (determined after giving effect
to any increase in the Total Commitment pursuant to this Section 1.14), (ii) the
Borrower shall pay to the respective Lenders any costs of the type referred to
in Section 1.11 in connection with any repayment and/or Borrowing required
pursuant to preceding clause (i), and (iii) to the extent Revolving Loans are to
be so incurred or added to the then outstanding Borrowings of the respective
Revolving Loans which are maintained as Eurodollar Loans, the Lenders that have
made such Loans shall be entitled to receive from the Borrower such amounts, as
reasonably determined by the respective Lenders, to compensate them for funding
the various Revolving Loans during an existing Interest Period (rather than at
the beginning of the respective Interest Period, based upon rates then
applicable thereto). In coordinating the actions to be taken pursuant to this
Section 1.14(c), the Administrative Agent shall endeavor to minimize (but shall
have no express obligation to minimize) costs to the Borrower (including,
without limitation, by agreeing in its sole discretion to delay any relevant
Incremental Revolving Loan Commitment Date to an end of an Interest Period). All
determinations by any Lender pursuant to clause (iii) of the second preceding
sentence shall, absent manifest error, be final and conclusive and binding on
all parties hereto.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions
set forth herein, the Borrower may request that an Issuing Lender issue, at any
time and from time to time on and after the Restatement Effective Date and prior
to the 30(th) day prior to the Maturity Date, for the account of the Borrower
and for the benefit of (x) any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Obligations of the
Borrower or any of its Subsidiaries, an irrevocable standby letter of credit, in
a form customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender and (y) sellers of goods to the Borrower or any
of its Subsidiaries, an irrevocable trade letter of credit, in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such letter of credit, a "Letter of
Credit" and, collectively, the "Letters of Credit"). All Letters of Credit shall
be denominated in Dollars and shall be issued on a sight basis only. It is
acknowledged and agreed that each of the letters of credit which were issued
under the Existing Credit Agreement and which remain outstanding on the
Restatement Effective Date and are set forth on Schedule III (each such letter
of credit, an "Existing Letter of Credit" and, collectively, the "Existing
Letters of Credit") shall, from and after the Restatement Effective Date,
constitute a Letter of Credit for all purposes of this Agreement and shall, for
purposes of Sections 2.04 and 3.01, be deemed issued on the Restatement
Effective Date. Schedule III sets forth, with respect to Existing Letters of
Credit, (i) the name of the issuing lender, (ii) the letter of credit number,
(iii) the stated amount, (iv) the name of the beneficiary and (v) the expiry
date.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender agrees that it will, at any time and from time to time on
and after the Restatement Effective Date and prior to the 30(th) day prior to
the Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower one or more Letters of
14
Credit as are permitted to remain outstanding hereunder without giving rise to a
Default or an Event of Default, provided that no Issuing Lender shall be under
any obligation to issue any Letter of Credit of the types described above if at
the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Lender from issuing such Letter of Credit or
any requirement of law applicable to such Issuing Lender or any
request or directive (whether or not having the force of law) from
any governmental authority with jurisdiction over such Issuing
Lender shall prohibit, or request that such Issuing Lender refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such Issuing Lender with
respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated hereunder), in any such case not in effect with respect
to such Issuing Lender on the Original Effective Date, or any
unreimbursed loss, cost or expense which was not applicable, or in
effect with respect to such Issuing Lender as of the Original
Effective Date and which such Issuing Lender in good faith deems
material to it; or
(ii) such Issuing Lender shall have received notice from the
Borrower, any other Credit Party or the Required Lenders prior to
the issuance of such Letter of Credit of the type described in the
second sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time would
exceed either (x) $35,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans then outstanding and the aggregate amount of all
Swingline Loans then outstanding, an amount equal to the Total Commitment at
such time, and (ii) (x) each standby Letter of Credit shall by its terms
terminate on or before the earlier of (A) the date which occurs twelve months
after the date of the issuance thereof (although any such Letter of Credit may
be extendible for successive periods of up to twelve months, but not beyond the
tenth Business Day prior to the Maturity Date, on terms acceptable to the
Issuing Lender thereof) and (B) the tenth Business Day prior to the Maturity
Date, and (y) each trade Letter of Credit shall by its terms terminate on or
before the earlier of (A) the date which occurs 180 days after the date of the
issuance thereof and (B) the date which is 30 Business Days prior to the
Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter of Credit
shall not be less than $50,000 or such lesser amount as is acceptable to the
respective Issuing Lender.
2.03 Letter of Credit Requests. (a) Whenever the Borrower desires that a
Letter of Credit be issued hereunder for its account, the Borrower shall have
(x) executed and delivered to the Administrative Agent and the respective
Issuing Lender at least five Business Days prior to the issuance thereof (or
such shorter period as may be acceptable to the respective Issuing Lender), a
Letter of Credit Request in the form of Exhibit C attached hereto (each a
"Letter of Credit Request").
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(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower to the Lenders that such Letter
of Credit may be issued in accordance with, and will not violate the
requirements of, Section 2.01(c). Unless the respective Issuing Lender has
received notice from the Borrower, any other Credit Party or the Required
Lenders before it issues a Letter of Credit that one or more of the conditions
specified in Section 6 are not then satisfied, or that the issuance of such
Letter of Credit would violate Section 2.01(c), then such Issuing Lender shall,
subject to the terms and conditions of this Agreement, issue the requested
Letter of Credit for the account of the Borrower in accordance with such Issuing
Lender's usual and customary practices. Upon the issuance of, or modification or
amendment to, any standby Letter of Credit, the Issuing Lender thereof shall
notify the Administrative Agent and the Borrower, in writing, of such issuance,
modification or amendment and such notice shall be accompanied by a copy of such
Letter of Credit or the respective modification or amendment thereto, as the
case may be. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender, in writing, of such issuance, modification or
amendment. With respect to trade Letters of Credit, the Issuing Lender shall on
the first Business Day of each week provide the Administrative Agent with a
written (including via facsimile) report of the daily aggregate outstandings of
trade Letters of Credit issued by such Issuing Lender for the immediately
preceding week. Notwithstanding anything to the contrary contained in this
Agreement, in the event that a Lender Default exists, no Issuing Lender shall be
required to issue any Letter of Credit unless such Issuing Lender has entered
into arrangements satisfactory to it and the Borrower to eliminate such Issuing
Lender's risk with respect to the participation in Letters of Credit by the
Defaulting Lender or Lenders, including by cash collateralizing such Defaulting
Lender's or Lenders' Percentage or Percentages of the Letter of Credit
Outstandings.
2.04 Letter of Credit Participations. (a) Immediately upon the issuance by
an Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed
to have sold and transferred to each Lender, other than such Issuing Lender
(each such Lender, in its capacity under this Section 2.04, a "Participant"),
and each such Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such
Participant's Percentage, in such Letter of Credit and each drawing or payment
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Commitments or Percentages of the Lenders pursuant to Section
1.13 or 13.04, it is hereby agreed that, with respect to all outstanding Letters
of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new Percentages of the assignor and assignee Lender or of all Lenders, as the
case may be.
(b) In determining whether to pay under any Letter of Credit, no
Issuing Lender shall have any obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, as determined by a court of competent jurisdiction in a
final and non-appealable
16
proceeding, shall not create for such Issuing Lender any resulting liability to
the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any
Letter of Credit issued by it and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Percentage of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, on or prior to 11:00 A.M. (New York time) on
any Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the respective Issuing Lender
in Dollars such Participant's Percentage of the amount of such payment on such
Business Day in same day funds. If and to the extent such Participant shall not
have so made its Percentage of the amount of such payment available to the
respective Issuing Lender, such Participant agrees to pay to such Issuing
Lender, forthwith on demand, such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate for the first three days and at the
interest rate applicable to Base Rate Loans for each day thereafter. The failure
of any Participant to make available to an Issuing Lender its Percentage of any
payment under any Letter of Credit issued by such Issuing Lender shall not
relieve any other Participant of its obligation hereunder to make available to
such Issuing Lender its Percentage of any payment with respect to any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Issuing Lender such other Participant's Percentage of any such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Lender shall pay to each such
Participant which has paid its Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the proportionate
aggregate amount originally funded by such Participant to the aggregate amount
funded by all Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
participations.
(e) Upon the request of any Participant, each Issuing Lender shall
furnish to such Participant copies of any standby Letter of Credit or
modifications or amendments thereto issued by it and such other documentation as
may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to each
Issuing Lender with respect to Letters of Credit issued thereunder shall be
irrevocable and not subject to any qualification or exception whatsoever (the
respective Issuing Lender's only obligation being to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and
that they substantially comply on their face with the requirements of such
Letter of Credit) and shall be made in accordance with the terms and conditions
of this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
17
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Subsidiaries may have at any
time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any
Participant, or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower or any Subsidiary of the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby
agrees to reimburse the respective Issuing Lender, by making payment in Dollars
to the Administrative Agent at the Payment Office in immediately available funds
for the account of such Issuing Lender, for any payment or disbursement made by
such Issuing Lender under any Letter of Credit (each such amount so paid until
reimbursed, an "Unpaid Drawing"), immediately after, and in any event on the
date of such payment or disbursement (provided that any such notice shall be
deemed to have been given on a certain day only if given before 10:00 A.M. (New
York time) on such day), with interest on the amount so paid or disbursed by
such Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (New York
time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Lender was reimbursed
by the Borrower therefor at a rate per annum which shall be the Base Rate in
effect from time to time plus the Applicable Margin, provided, however, to the
extent such amounts are not reimbursed prior to 12:00 Noon (New York time) on
the third Business Day following notice by the Issuing Lender to the Borrower of
such payment or disbursement, interest shall thereafter accrue on the amounts so
paid or disbursed by such Issuing Lender (and until reimbursed by the Borrower)
at a rate per annum which shall be the Base Rate in effect from time to time
plus the Applicable Margin plus 2%, in each such case, with such interest, in
each case, to be payable by the Borrower on demand. The respective Issuing
Lender shall give the Borrower prompt notice of each Drawing under any Letter of
Credit, provided that the failure to give any such notice shall in no way
affect, impair or diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse the respective Issuing Lender with respect to drawings on Letters of
Credit (including interest thereon) (each, a "Drawing") shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or have had
against any Lender (including in its capacity as issuer of the Letter of Credit
or as Participant), or any nonapplication or misapplication by the beneficiary
of
18
the proceeds of such Drawing, the respective Issuing Lender's only obligation to
the Borrower being to confirm that any documents required to be delivered under
such Letter of Credit have been delivered and that they substantially comply on
their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by any Issuing Lender under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction in a final and
non-appealable proceeding, shall not create for such Issuing Lender any
resulting liability to the Borrower.
2.06 Increased Costs. If at any time after the Original Effective Date,
the introduction of or any change in any applicable law, rule, regulation,
order, guideline or request or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Lender or any Participant with any request
or directive by any such authority (whether or not having the force of law), or
any change in generally acceptable accounting principles, shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Letters of Credit issued by any Issuing Lender or
participated in by any Participant, or (ii) impose on any Issuing Lender or any
Participant any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit or reduce the amount of any
sum received or receivable by any Issuing Lender or any Participant hereunder or
reduce the rate of return on its capital with respect to Letters of Credit
(except for changes in the rate of tax on, or determined by reference to, the
net income or net profits of such Issuing Lender or such Participant pursuant to
the laws of the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), then, upon demand to the Borrower by such Issuing Lender or any
Participant (a copy of which demand shall be sent by such Issuing Lender or such
Participant to the Administrative Agent) and subject to the provisions of
Section 13.15 (to the extent applicable), the Borrower agrees to pay to such
Issuing Lender or such Participant such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender
or any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.06, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Lender or such Participant (a copy of which certificate shall be
sent by such Issuing Lender or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Lender or such
Participant. The certificate required to be delivered pursuant to this Section
2.06 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower.
SECTION 3. Facility Fee; Other Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Lender a facility fee (the "Facility Fee")
for the account of such Non-Defaulting Lenders for the period from the
Restatement Effective Date to but excluding the Maturity Date (or such earlier
date as the Total Commitment shall have been terminated), computed at a rate per
annum equal to the Applicable Facility Fee Percentage on the
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Commitment of such Non-Defaulting Lender (as in effect from time to time)
(regardless of utilization). Accrued Facility Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the Maturity Date or
such earlier date upon which the Total Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for pro
rata distribution to each Non-Defaulting Lender (based on each such Lender's
respective Percentage) a fee in respect of each Letter of Credit (the "Letter of
Credit Fee") for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such
Letter of Credit, computed at a rate per annum equal to the Applicable Margin
(as in effect from time to time) with respect to Eurodollar Loans on the daily
Stated Amount of each such Letter of Credit. Accrued Letter of Credit Fees shall
be due and payable quarterly in arrears on each Quarterly Payment Date and on
the first day on or after the termination of the Total Commitment upon which no
Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Lender, for
its own account, a facing fee in respect of each Letter of Credit issued
hereunder (the "Facing Fee"), for the period from and including the date of
issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/8 of 1% per annum of the daily
Stated Amount of such Letter of Credit; provided that, in no event shall the
annual (or such shorter period as any Letter of Credit is outstanding) Facing
Fee with respect to any Letter of Credit be less than $500. Accrued Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the date upon which the Total Revolving Loan Commitment has been terminated
and such Letter of Credit has been terminated in accordance with its terms.
(d) The Borrower agrees to pay to each Issuing Lender, for its own
account, upon each payment under, issuance of, or amendment to any Letter of
Credit issued by it, such amount as shall at the time of such event be the
administrative charge and the reasonable expenses which such Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower shall pay to the Administrative Agent for
distribution to each Incremental RL Lender such fees and other amounts, if any,
as are specified in the relevant Incremental Revolving Loan Commitment
Agreement, with the fees and other amounts, if any, to be payable on the
respective Incremental Revolving Loan Commitment Date.
(f) The Borrower agrees to pay to the Administrative Agent, such
fees as may be agreed to in writing from time to time by the Borrower and the
Administrative Agent and/or the Lead Arranger.
3.02 Optional Commitment Reductions. (a) Upon at least three Business
Days' prior notice from an Authorized Representative of the Borrower to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate or partially reduce the Total Unutilized Commitment, provided that any
partial reduction pursuant to this Section 3.02(a) shall be in an amount of at
least $5,000,000 or,
20
if greater, in integral multiples of $1,000,000. Each such reduction shall apply
proportionately to permanently reduce the Commitment of each Lender.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower may, subject to its
compliance with the requirements of Section 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate all of the Commitments of such Lender, so long as all Loans, together
with accrued and unpaid interest, Fees and all other amounts, owing to such
Lender are repaid concurrently with the effectiveness of such termination
pursuant to Section 4.01(b) (at which time Schedule I shall be deemed modified
to reflect such changed amounts), and such Lender's Percentage of all
outstanding Letters of Credit is cash collateralized in a manner satisfactory to
the Administrative Agent and the respective Issuing Lenders and at such time,
such Lender shall no longer constitute a "Lender" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01 and
13.06), which shall survive as to such repaid Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and the
Commitment of each Lender) shall terminate in its entirety on October 31, 2004
unless the Credit Agreement has been executed and delivered by all of the
parties hereto and the Restatement Effective Date has occurred.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Commitment (and the Commitment of each
Lender) shall terminate in its entirety on the Maturity Date.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay the Loans, without premium or penalty, in whole or in part at any time
and from time to time on the following terms and conditions: (i) an Authorized
Representative of the Borrower shall give the Administrative Agent prior to
12:00 Noon (New York time) at the Notice Office (x) at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing) of the
Borrower's intent to prepay Base Rate Loans and (y) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of their intent to prepay Eurodollar Loans, whether Revolving Loans or Swingline
Loans shall be prepaid, the amount of such prepayment and the Type of Loans to
be prepaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, which notice the Administrative Agent shall
promptly transmit to each of the Lenders; (ii) each prepayment shall be in an
aggregate principal amount of at least $1,000,000 (or $100,000 in the case of
Swingline Loans), provided that if any partial prepayment of Eurodollar Loans
made pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto, then such Borrowing may not be continued as a
Borrowing of Eurodollar Loans and any election of an Interest Period with
respect thereto given by the Borrower shall have no force or effect; and (iii)
each prepayment in respect
21
of any Revolving Loans made pursuant to a Borrowing shall be applied pro rata
among such Revolving Loans, provided that at the Borrowers' election in
connection with any prepayment of Revolving Loans pursuant to this Section
4.01(a), such prepayment shall not, so long as no Default or Event of Default
then exists, be applied to the prepayment of Revolving Loans of a Defaulting
Lender.
(b) In the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower may, upon five Business Days' written notice by
an Authorized Representative of the Borrower to the Administrative Agent at the
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Lenders) repay all Revolving Loans, together with accrued and unpaid
interest, Fees, and other amounts owing to such Lender in accordance with, and
subject to the requirements of, said Section 13.12(b) so long as (A) the
Commitment of such Lender is terminated concurrently with such repayment
pursuant to Section 3.02(b) (at which time Schedule I shall be deemed modified
to reflect the changed Commitments) and (B) the consents required by Section
13.12(b) in connection with the repayment pursuant to this clause (b) have been
obtained.
4.02 Mandatory Repayments and Cash Collateralizations. (a) On any
day on which the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on such
date), (ii) the aggregate principal amount of all Swingline Loans (after giving
effect to all other repayments thereof on such date) and (iii) the aggregate
amount of all Letter of Credit Outstandings (after giving effect to all other
repayments thereof on such date) exceeds the Total Commitment as then in effect,
the Borrower agrees to prepay on such day the principal of Swingline Loans and,
after the Swingline Loans have been repaid in full, Revolving Loans, in an
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Commitment as then in effect,
the Borrower agrees to pay to the Administrative Agent at the Payment Office on
such date an amount of cash and/or Cash Equivalents equal to the amount of such
excess (up to a maximum amount equal to the Letter of Credit Outstandings at
such time), such cash and/or Cash Equivalents to be held as security for all
Obligations of the Borrower to Lenders hereunder in a cash collateral account to
be established by the Administrative Agent on terms reasonably satisfactory to
the Administrative Agent.
(b) With respect to each repayment of Revolving Loans required by
Section 4.02(a), the Borrower may designate the Types of Revolving Loans which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar
Loans pursuant to Section 4.02(a) may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required repayment and all Base Rate Loans have
been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
Revolving Loans required by Section 4.02(a) shall be applied pro rata among such
22
Revolving Loans. In the absence of a designation by the Borrower as described in
the preceding sentence, the Administrative Agent shall, subject to the above,
make such designation in its sole discretion with a view, but no obligation, to
minimize breakage costs owing under Section 1.11.
(c) In addition to any other mandatory repayments required pursuant
to this Section 4.02, (i) all then outstanding Revolving Loans shall be repaid
in full on the Maturity Date and (ii) all then outstanding Swingline Loans shall
be repaid in full on the Swingline Expiry Date.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office. Any
payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments; Taxes. (a) All payments made by any Credit Party
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), 13.04, 13.14 or 13.15, all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future Taxes now or hereafter imposed by any jurisdiction or
by any political subdivision or taxing authority thereof or therein with respect
to such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) (all such non-excluded
Taxes being referred to collectively as "Withholding Taxes"). If any Withholding
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of
such Withholding Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or any other Credit
Document or under any Note, after withholding or deduction for or on account of
any Withholding Taxes, will not be less than the amount provided for herein or
in such Credit Document or in such Note. If any amounts are payable in respect
of Withholding Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender pursuant
to the laws of the jurisdiction in which such Lender is organized or in which
the principal office or applicable lending office of such Lender is located or
under the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located and for any withholding
of taxes as such Lender shall determine are payable by, or withheld from, such
Lender, in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or on
behalf of such Lender pursuant to this sentence. The Borrower will furnish to
the Administrative Agent within 45 days after the date the payment of any
Withholding Taxes is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Lender, and reimburse
23
such Lender upon its written request, for the amount of any Withholding Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Restatement Effective Date, or in the case of a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to Section 1.13 or
13.04 (unless the respective Lender was already a Lender hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Lender, (i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or W-8BEN (with respect to complete
exemption under an income tax treaty) (or successor forms) certifying to such
Lender's entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or W-8BEN (with respect to complete exemption under an
income tax treaty) pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (with respect to the portfolio interest
exemption) (or successor form) certifying to such Lender's entitlement to a
complete exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and under any Note. In addition,
each Lender agrees that from time to time after the Original Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to the benefits of any income tax treaty), Form W-8BEN (with respect to
the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate,
in which case such Lender shall not be required to deliver any such Form or
Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, Fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Lender has not provided to the Borrower
U.S. Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Lender
in respect of income or similar taxes imposed by the United States if (I) such
Lender has not provided to the Borrower the Internal Revenue Service Forms
described above in this Section 4.04(b) (if applicable) or (II) in the case of a
payment, other than interest, to a Lender described in clause (ii) above, to the
extent that such Forms do not establish a complete exemption from withholding of
such taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 4.04 and except
24
as set forth in Section 13.04(b), the Borrower agrees to pay any additional
amounts and to indemnify each Lender in the manner set forth in Section 4.04(a)
(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described in
the immediately preceding sentence as a result of any changes that are effective
after the Original Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this Section
4.04 to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "Tax Benefit"), such
Lender shall pay to the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by the Lender in such year as a consequence of such Tax Benefit; provided,
however, that (i) any Lender may determine, in its sole discretion consistent
with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of
such Lender that otherwise would not have expired) of any Tax Benefit with
respect to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to
indemnify such Lender pursuant to this Section 4.04 without any exclusions or
defenses; (iii) nothing in this Section 4.04(c) shall require the Lender to
disclose any confidential information to the Borrower; and (iv) no Lender shall
be required to pay any amounts pursuant to this Section 4.04(c) at any time
during which a Default or Event of Default exists.
SECTION 5. Conditions Precedent to the Restatement Effective Date. The
occurrence of the Restatement Effective Date pursuant to Section 13.10 is
subject to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement
Effective Date (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Lender that has requested same the
appropriate Revolving Note executed by the Borrower and to the Swingline Lender,
to the extent the Swingline Lender has requested same, the Swingline Note
executed by the Borrower, in each case, in the amount, maturity and as otherwise
provided herein.
5.02 Officer's Certificate. On the Restatement Effective Date, the
Administrative Agent shall have received a certificate, dated the Restatement
Effective Date, and signed on behalf of the Borrower by an Authorized
Representative, stating that all conditions in Sections 5.07, 5.08, 5.09, 5.12
and 6.02 have been satisfied on such date.
5.03 Opinions of Counsel. On the Restatement Effective Date, the
Administrative Agent shall have received (i) from Jones Day, counsel to the
Credit Parties, an opinion addressed to the Agents and each of the Lenders and
dated the Restatement Effective Date covering the matters set forth in Exhibit
E-1 and such other matters incident to the transactions contemplated
25
herein as the Administrative Agent may reasonably request and (ii) from Stephen
R. Avera, general counsel of the Borrower and special counsel to the other
Credit Parties, an opinion addressed to the Agent and each of the lenders and
dated the Restatement Effective Date covering the matters set forth in Exhibit
E-2 and such other matters incident to the transactions contemplated herein as
the Administrative Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Restatement
Effective Date, the Administrative Agent shall have received a certificate,
dated the Restatement Effective Date, signed by an Authorized Representative of
each Credit Party, and attested to by another Authorized Representative of such
Credit Party, in the form of Exhibit F with appropriate insertions, together
with copies of the certificate of incorporation and by-laws (or equivalent
organizational documents) of such Credit Party, and the resolutions of such
Credit Party referred to in such certificate, and the foregoing shall be in form
and substance reasonably acceptable to the Administrative Agent.
(b) All corporate, partnership, limited liability company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be reasonably satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received all information and copies of
all documents and papers, including governmental approvals, good standing
certificates and bring-down telegrams, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
5.05 Existing Credit Agreement. On the Restatement Effective Date, all
letters of credit (or acceptances created thereunder) issued under the Existing
Credit Agremeent shall be continued as Letters of Credit hereunder and all
interest, fees and other amounts that have accrued and remain, as of the
Restatement Effective Date, unpaid under the Existing Credit Agreement shall
have been paid in full (including, without limitation, amounts payable pursuant
to Section 1.11 of the Existing Credit Agreement, accrued and unpaid commitment
fees, letter of credit fees and facing fees).
5.06 Guaranties. On the Restatement Effective Date, each Subsidiary
Guarantor shall have duly authorized, executed and delivered a Subsidiaries
Guaranty in the form of Exhibit G (as amended, restated, modified and/or
supplemented from time to time, the "Subsidiaries Guaranty"), and the
Subsidiaries Guaranty shall be in full force and effect.
5.07 Outstanding Indebtedness; Preferred Stock. On the Restatement
Effective Date and after giving effect to the consummation of the Transaction,
the Borrower and its Subsidiaries shall have no outstanding Indebtedness which
has a principal balance of $2,000,000 or more or Preferred Stock other than (i)
Indebtedness pursuant to this Agreement, and (ii) the Scheduled Existing
Indebtedness identified in Schedule VI hereto, which shall remain outstanding
and in effect after giving effect to the consummation of the Transaction, with
no defaults, events of default, breaches, required repayments, required offer to
purchase or termination rights existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby. On and as of the
Restatement Effective Date, the Administrative Agent shall be
26
reasonably satisfied with the amount of and the terms and conditions of all
Scheduled Existing Indebtedness and Preferred Stock described above in this
Section 5.07.
5.08 Adverse Change; Governmental Approvals; etc. (a) On the Restatement
Effective Date, nothing shall have occurred (and neither the Administrative
Agent nor the Required Lenders shall have become aware of any facts or
conditions not previously known) which the Administrative Agent or the Required
Lenders shall determine has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(b) On or prior to the Restatement Effective Date, all necessary
governmental (domestic and foreign) and third party approvals and/or consents in
connection with the transactions contemplated by the Credit Documents and
otherwise referred to herein shall have been obtained and remain in effect, and
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the transactions contemplated by the
Credit Documents. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the making of any Loan, issuance of any Letter of Credit
or the consummation of the transactions contemplated by the Credit Documents.
5.09 Litigation. On the Restatement Effective Date, no litigation by any
entity (private or governmental) shall be pending or threatened in writing with
respect to this Agreement, any other Credit Document or any other documentation
executed in connection herewith and therewith or the transactions contemplated
hereby and thereby, or which the Administrative Agent or the Required Lenders
shall determine has had, or could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
5.10 Financial Statements. On or prior to the Restatement Effective Date,
the Administrative Agent shall have received true and correct copies of the
historical financial statements referred to in Section 7.05(a), which historical
financial statements shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
5.11 Solvency Certificate; Leverage Ratio Certificate. On or prior to the
Restatement Effective Date, the Administrative Agent shall have received (and be
reasonably satisfied with):
(a) a solvency certificate from the chief financial officer or
treasurer of the Borrower, in the form of Exhibit H, which shall be addressed to
the Agents and the Lenders and dated the Restatement Effective Date, setting
forth the conclusions that, after giving effect to the Transaction and the
incurrence of all of the financings contemplated hereby, each of the Borrower
and the Borrower and its Subsidiaries taken as a whole, is or are not insolvent
and will not be rendered insolvent by the indebtedness incurred in connection
therewith, will not be left with unreasonably small capital with which to engage
in its or their business and will not have incurred debts beyond its or their
ability to pay such debts as they mature; and
27
(b) a certificate from the chief financial officer of the Borrower
in form and substance reasonably satisfactory to the Administrative Agent, which
shall be addressed to the Agents and the Lenders and dated the Restatement
Effective Date, setting forth the Leverage Ratio as of the Restatement Effective
Date together with such calculations as are reasonably required by the
Administrative Agent in support thereof.
5.12 Fees, etc. On the Restatement Effective Date, all reasonable costs,
fees and expenses (including, without limitation, legal fees and expenses)
payable under the terms of this Agreement (or any letter or other agreement with
the Agents) to the Agents and the Lenders shall have been paid to the extent
due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation of
each Lender to make Loans (including Loans made on the Restatement Effective
Date and on each Incremental Revolving Loan Commitment Date, but excluding
Mandatory Borrowings made thereafter, which shall be made as provided in Section
1.01(c)), and the obligation of an Issuing Lender to issue any Letter of Credit,
is subject, at the time of each such Credit Event, to the satisfaction of the
following conditions:
6.01 Restatement Effective Date. The Restatement Effective Date shall have
occurred.
6.02 No Default; Representations and Warranties. At the time of each such
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Revolving Loan (excluding Swingline Loans), the Administrative
Agent shall have received the notice required by Section 1.03(a). Prior to the
making of each Swingline Loan, the Swingline Lender shall have received the
notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Lender shall have received a
Letter of Credit Request meeting the requirements of Section 2.03.
The acceptance of the benefit of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agents and each of the
Lenders that all the conditions specified in Section 5 (with respect to Credit
Events on the Restatement Effective Date) and in this Section 6 (with respect to
Credit Events to occur on or after the Restatement Effective Date) and
applicable to such Credit Event have been satisfied as of that time. All of the
Notes, certificates, legal opinions and other documents and papers referred to
in Section 5 and in this Section 6, unless otherwise specified, shall be
delivered to the Administrative Agent at the Notice Office for the account of
each of the Lenders and, except for the Notes, in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders.
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SECTION 7. Representations, Warranties and Agreements. In order to induce
the Lenders to enter into this Agreement and to make the Loans, and issue (or
participate in) the Letters of Credit as provided herein, the Borrower makes the
following representations, warranties and agreements, in each case after giving
effect to the occurrence of the Restatement Effective Date, all of which shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and issuance of the Letters of Credit, with the occurrence
of each Credit Event on or after the Restatement Effective Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the
Restatement Effective Date and on the date of each such Credit Event (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date):
7.01 Corporate Status. The Borrower and each of its Subsidiaries (i) is a
duly organized and validly existing corporation, limited liability company or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization or formation, (ii) has the corporate, limited
liability company or partnership power and authority, as the case may be, to own
its property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the conduct of its
business requires such qualifications, except for failures to be so qualified
that, individually or in the aggregate, have not had, and could not reasonably
be expected to have, a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the corporate,
limited liability company or partnership power and authority, as the case may
be, to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is party and has taken all necessary corporate,
limited liability company or partnership action, as the case may be, to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
the legal, valid and binding obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party, nor compliance by
it with the terms and provisions thereof, (i) will contravene any provision of
any applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (other than
Permitted Liens) upon any of the material properties or assets of the Borrower
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject or (iii) will
29
violate any provision of the Certificate or Articles of Incorporation or By-Laws
(or equivalent organizational documents) of the Borrower or any of its
Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of any Credit Document or (ii) the legality,
validity, binding effect or enforceability of any such Credit Document.
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc. (a) (i) The audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year of the Borrower ended January 3, 2004,
and the related consolidated statements of income, cash flows and shareholders'
equity of the Borrower and its Subsidiaries for the fiscal year of the Borrower
ended on such date, copies of which have been furnished to the Lenders prior to
the Restatement Effective Date and (ii) the unaudited consolidated balance
sheets of the Borrower and its Subsidiaries for the fiscal quarters of the
Borrower ended on April 24, 2004 and July 17, 2004, and the related consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for the
fiscal quarters of the Borrower ended on such dates, copies of which have been
furnished to the Lenders prior to the Restatement Effective Date, in each case,
present fairly in all material respects the financial condition of the Borrower
and its Subsidiaries at the date of such balance sheets and the results of the
operations of the Borrower and its Subsidiaries for the periods covered thereby.
All of the foregoing financial statements have been prepared in accordance with
generally accepted accounting principles and practices consistently applied
(except, in the case of the aforementioned unaudited financial statements, for
normal year-end audit adjustments and the absence of footnotes).
(b) After giving effect to the Transaction (but for this purpose
assuming that the Transaction and the related financing had occurred prior to
January 3, 2004), since January 3, 2004, there has been no condition or
circumstance that, individually or in the aggregate with such other conditions
or circumstances, has had, or could reasonably be expected to have, a Material
Adverse Effect.
(c) On and as of the Restatement Effective Date, on a pro forma
basis after giving effect to the Transaction and all other transactions
contemplated by this Agreement and the other Credit Documents and to all
Indebtedness (including the Loans) being incurred or assumed, with respect to
each of the Borrower and the Borrower and its Subsidiaries taken as a whole, (x)
the sum of its or their assets (including goodwill), at a fair valuation, will
exceed its or their debts; (y) it or they have not incurred and do not intend to
incur, nor believe that it or they will incur, debts beyond its or their ability
to pay such debts as such debts mature; and (z) it or they will have sufficient
capital with which to conduct its or their business. For purposes of this
Section 7.05(c), "debt" means any liability on a claim and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
30
(d) Except as fully disclosed in the financial statements referred
to in Section 7.05(a) or created by the transactions contemplated by this
Agreement and the other Credit Documents, there were, as of the Restatement
Effective Date, no material liabilities or obligations with respect to the
Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which would, under
generally accepted accounting principles, be required to be disclosed on
consolidated financial statements (or footnotes thereto) of the Borrower and its
Subsidiaries if same had been prepared as of the Restatement Effective Date. In
addition, as of the Restatement Effective Date, there are no liabilities or
obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever not required to be disclosed in such financial statements in
accordance with generally accepted accounting principles that, individually or
in the aggregate, have had, or could reasonably be expected to have, a Material
Adverse Effect.
7.06 Litigation. There are no actions, suits or proceedings pending or
threatened in writing (i) with respect to any Credit Document or (ii) that,
individually or in the aggregate, has had, or could reasonably be expected to
have, a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of the Borrower or any of its Subsidiaries in
writing to any Agent or any Lender (including, without limitation, all factual
information contained in the Credit Documents) for purposes of or in connection
with this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of the Borrower or any of its Subsidiaries
in writing to any Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not
incomplete by omitting to state any fact necessary to make such information
(taken as a whole) not misleading in any material respect at the time such
information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of Loans shall
be used (i) to repay all outstanding Indebtedness under the Existing Credit
Agreement, (ii) to pay fees and expenses incurred in connection with the
consummation of the Transaction and (iii) for the Borrower's and its
Subsidiaries' ongoing working capital and general corporate purposes (including
capital expenditures and acquisitions).
(b) Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of the Margin Regulations. At the time of each
Credit Event and after giving effect thereto (including after giving effect to
the application of proceeds therefrom), no more than 25% of the value of the
assets of the Borrower, or of the Borrower and its Subsidiaries taken as a
whole, constitutes Margin Stock.
7.09 Tax Returns and Payments. The Borrower and each of its Subsidiaries
has timely filed or caused to be timely filed, on the due dates thereof or
within applicable grace periods, with the appropriate taxing authority, all
Federal, state, foreign and other material returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with respect to the
income, properties or operations of the Borrower and its Subsidiaries. Each of
the Borrower and each of its Subsidiaries has paid all taxes and assessments
payable by it which have become
31
due, other than those contested in good faith and for which adequate reserves
have been established in accordance with generally accepted accounting
principles. There is no action, suit, proceeding, investigation, audit, or claim
now pending or threatened in writing by any authority regarding any material
taxes relating to the Borrower or its Subsidiaries. Neither the Borrower nor any
of its Subsidiaries has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating
to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of the Borrower or any of its Subsidiaries not to
be subject to the normally applicable statute of limitations.
7.10 Compliance with ERISA. (a) Each Plan is in compliance in all material
respects with ERISA and the Code; no Reportable Event has occurred with respect
to a Plan; to the knowledge of the Borrower, no Multiemployer Plan is insolvent
or in reorganization; no Plan has an Unfunded Current Liability which, when
added to the aggregate amount of Unfunded Current Liabilities with respect to
all other Plans, exceeds $100,000,000; no Plan has an accumulated or waived
funding deficiency, or has applied for an extension of any amortization period
within the meaning of Section 412 of the Code; neither the Borrower nor any of
its respective Subsidiaries nor any ERISA Affiliate has incurred any liability
to or on account of a Plan and/or a Multiemployer Plan pursuant to Section 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA in excess of $10,000,000 in
the aggregate for all such liabilities; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan; no action, suit,
proceeding, hearing, audit or investigation with respect to the administration,
operation or investment of assets of any Plan (other than routine claims for
benefits) is pending, expected or threatened in writing; no condition exists
which presents a risk to the Borrower or any of its Subsidiaries or any ERISA
Affiliate of incurring a material liability to or on account of a Plan and/or a
Multiemployer Plan pursuant to the foregoing provisions of ERISA and the Code;
using actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of the Borrower, its
Subsidiaries and its ERISA Affiliates to all Multiemployer Plans in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Multiemployer Plan ended prior to the date of the most recent
Credit Event, could not reasonably be expected to have a Material Adverse
Effect.
(b) Each Foreign Pension Plan has been maintained in compliance in
all material respects with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. Neither the Borrower nor any of its Subsidiaries has incurred any
obligation in connection with the termination of or withdrawal from any Foreign
Pension Plan. The present value of the accrued benefit liabilities (whether or
not vested) under each Foreign Pension Plan, determined as of the end of the
Borrower's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities.
7.11 Properties. The Borrower and each of its Subsidiaries has good and
valid title to all properties owned by them, including all property reflected in
the balance sheets referred to in Sections 7.05(a) (except as sold or otherwise
disposed of since the date of such balance sheet in the ordinary course of
business or otherwise as permitted hereunder), free and clear of all Liens other
than Permitted Liens.
32
7.12 Subsidiaries. As of the Restatement Effective Date (i) Schedule IV
sets forth the correct legal name of each Subsidiary of the Borrower, the direct
and indirect (if any) owner of each such Subsidiary and whether each such
Subsidiary is a Wholly-Owned Domestic Subsidiary, and (ii) the Borrower has no
Subsidiaries other than those Subsidiaries listed on such Schedule IV.
7.13 Compliance with Statutes, etc. The Borrower and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such noncompliances as have not had, and could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
7.14 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.15 Public Utility Holding Company Act. Neither the Borrower nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.16 Environmental Matters. Except to the extent that any matter described
below in this Section 7.16, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (i) the Borrower and
each of its Subsidiaries is in compliance with all applicable Environmental Laws
and the requirements of any permits required under such Environmental Laws; (ii)
there are no Environmental Claims pending or threatened in writing against the
Borrower or any of its Subsidiaries or any Real Property presently or formerly
owned, leased or operated by the Borrower or any of its Subsidiaries; and (iii)
there are no facts, circumstances, or conditions relating to the past or present
business or operations of the Borrower or any of its Subsidiaries (including the
disposal of any wastes, hazardous substances or other materials), or to any Real
Property at any time owned, leased, operated or occupied by the Borrower or any
of its Subsidiaries that, to the knowledge of the Borrower, could reasonably be
expected to (A) to form the basis of an Environmental Claim against the Borrower
or any of its Subsidiaries or any such currently owned Real Property, or (B) to
cause any such currently owned Real Property to be subject to any restriction on
the ownership, occupancy, use or transferability of such Real Property by the
Borrower or any of its Subsidiaries under any applicable Environmental Laws.
7.17 Labor Relations. Neither the Borrower nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against the Borrower or any of its Subsidiaries or threatened in writing against
any of them, before the National Labor Relations Board, and no material
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or threatened in writing against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against the Borrower or any of its
Subsidiaries or threatened in writing against the Borrower or
33
any of its Subsidiaries and (iii) to the knowledge of the Borrower after due
inquiry, no union representation proceeding pending with respect to the
employees of the Borrower or any of its Subsidiaries, except (with respect to
any matter specified in clause (i), (ii) or (iii) above, either individually or
in the aggregate) such as have not had, and could not reasonably be expected to
have, a Material Adverse Effect.
7.18 Patents, Licenses, Franchises and Formulas. The Borrower and its
Subsidiaries own or have valid licenses to use all material patents, trademarks,
permits, service marks, trade names, copyrights, licenses, franchises and
formulas, or rights with respect to the foregoing, and have obtained assignments
of all leases and other rights of whatever nature, reasonably necessary for the
present conduct of their business, without any known conflict with the rights of
others except for such failures and conflicts which have not had, and could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
7.19 Scheduled Existing Indebtedness, etc. Schedule VI sets forth a true
and complete list of all Indebtedness of the Borrower and each of its
Subsidiaries which has a principal balance of $2,000,000 or more as of the
Restatement Effective Date and which is to remain outstanding after giving
effect to the Transaction (excluding the Loans and the Letters of Credit, the
"Scheduled Existing Indebtedness"), in each case, showing the aggregate
principal amount thereof and the name of the respective borrower and any Credit
Party or any of its Subsidiaries which directly or indirectly guaranteed such
debt and describing any security therefor.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and agrees
that on and after the Restatement Effective Date and until the Total Commitment
and all Letters of Credit have terminated and the Loans, Notes and Unpaid
Drawings (in each case together with interest thereon), Fees and all other
Obligations (other than indemnities described in Section 13.13 which are not
then due and payable) incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Lender:
(a) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the close of each of the first three fiscal quarters
in each fiscal year of the Borrower, (i) the consolidated balance sheets of the
Borrower and its Subsidiaries, in each case, as at the end of such quarterly
period and the related consolidated statements of income and retained earnings
and consolidated statements of cash flows, in each case for such fiscal quarter
and for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and in each case, setting forth comparative figures for the
corresponding quarterly accounting period in the prior fiscal year, all of which
shall be certified by the chief financial officer of the Borrower, subject to
normal year-end audit adjustments and the absence of footnotes, and (ii)
management's discussion and analysis of the important operational and financial
developments during the fiscal quarter and year-to-date periods (it being
understood and agreed that the delivery of such management's discussion and
analysis as contained in the Borrower's quarterly report on Form 10-Q shall
satisfy the requirement contained in this clause (ii)).
(b) Annual Financial Statements. Within 90 days after the close of
each fiscal year of the Borrower, (i) the consolidated balance sheets of the
Borrower and its Subsidiaries, in each case, as of the end of such fiscal year
and the related consolidated statements of income and
34
retained earnings and consolidated statements of cash flows, in each case for
such fiscal year setting forth comparative figures for the preceding fiscal year
and certified (x) in the case of such consolidated financial statements, by
PricewaterhouseCoopers LLP or such other independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent, and (y) in the case of such financial statements, by the
chief financial officer of the Borrower together with a report of such
accounting firm stating that in the course of its regular audit of the financial
statements of the Borrower and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
obtained no knowledge of any Default or Event of Default which has occurred and
is continuing as a result of a violation of any of Sections 9.01(xii), 9.02(b),
9.02(c), 9.04, 9.05, 9.07, and/or 9.08 or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and (ii) management's discussion and analysis
of the important operational and financial developments during such fiscal year
(it being understood and agreed that the delivery of such management's
discussion and analysis as contained in the Borrower's annual report on Form
10-K shall satisfy the requirement contained in this clause (ii)).
(c) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 8.01(a) and (b), a certificate of
an Authorized Representative of the Borrower in the form of Exhibit J to the
effect that, (i) to the best of such Authorized Representative's knowledge, no
Default or Event of Default has occurred and is continuing or, if any Default or
Event of Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall set forth the calculations required to
establish whether the Borrower was in compliance with the provisions of Sections
9.01(xii), 9.07 and 9.08 at the end of such fiscal quarter or year, as the case
may be and (ii) there have been no changes since the Restatement Effective Date
or, if later, since the date of the most recent certificate delivered pursuant
to this Section 8.01(c)(ii), to Schedule IV to this Agreement or, if there have
been any such changes, a list in reasonable detail of such changes and a
certification that the Borrower and its Subsidiaries have taken all action
required by Sections 8.10 with respect to any new Subsidiaries.
(d) Notice of Default or Litigation. Promptly, and in any event
within three Business Days (or five Business Days in the case of following
clause (ii)) after the Borrower obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or Event of Default, or (ii)
any litigation or governmental investigation or proceeding pending or threatened
in writing (x) against the Borrower or any of its Subsidiaries which has had, or
could reasonably be expected to have, a Material Adverse Effect or (y) with
respect to any Credit Document.
(e) Environmental Matters. Promptly upon, and in any event within
ten Business Days after, the Borrower obtains knowledge thereof, notice of any
of the following environmental matters occurring after the Restatement Effective
Date, except to the extent that such environmental matters have not had, and
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect:
35
(i) any Environmental Claim pending or threatened in writing
against the Borrower or any of its Subsidiaries or any Real Property
owned or operated or occupied by the Borrower or any of its
Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated or occupied by the Borrower or any of its
Subsidiaries that (a) results in noncompliance by the Borrower or
such Subsidiary with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned
or operated or occupied by the Borrower or any of its Subsidiaries
that could reasonably be expected to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability by the Borrower or such Subsidiary of such Real
Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Real Property owned or operated or occupied by the Borrower or any
of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of
the claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's or such Subsidiary's response thereto. In addition, the
Borrower will provide the Lenders with copies of all material communications
with any government or governmental agency and all material communications with
any Person relating to any Environmental Claim of which notice is required to be
given pursuant to this Section 8.01(e), and such detailed reports of any such
Environmental Claim as may reasonably be requested by the Lenders; provided
that, in any event, the Borrower shall deliver to the Administrative Agent all
material notices received by the Borrower or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA.
(f) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any, which
the Borrower or any of its Subsidiaries shall file with the Securities and
Exchange Commission or any successor thereto (the "SEC") or deliver to holders
of its Indebtedness (or any trustee, agent or other representative therefor)
pursuant to the terms of the documentation governing such Indebtedness.
(g) Debt Rating. Promptly upon, and in any event within five
Business Days after, an Authorized Representative of the Borrower obtains
knowledge of any change by Moody's or S&P in any Debt Rating, notice of such
change.
(h) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as the Administrative Agent or Lender may reasonably request in
writing.
36
8.02 Books, Records and Inspections. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Lender to visit and inspect,
after reasonable notice during regular business hours and under guidance of
officers of the Borrower or such Subsidiary, any of the properties of the
Borrower or such Subsidiary, and to examine the books of account of the Borrower
or such Subsidiary and discuss the affairs, finances and accounts of the
Borrower or such Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all upon reasonable advance notice
and at such reasonable times and intervals and to such reasonable extent as the
Administrative Agent or such Lender may request.
8.03 Maintenance of Property; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (i) keep all property necessary to the business of
the Borrower and its Subsidiaries in good working order and condition, ordinary
wear and tear excepted, and (ii) maintain insurance on all its property in at
least such amounts and against at least such risks and with such deductibles or
self-insured retentions as is consistent and in accordance with industry
practice.
8.04 Corporate Franchises. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents used in its business; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of assets, mergers or other
transactions by or among the Borrower or any of its Subsidiaries in accordance
with Section 9.02, (ii) the withdrawal by the Borrower or any of the
Subsidiaries of its qualification as a foreign corporation or the failure to
qualify as a foreign corporation in any jurisdiction which would not in any way
materially and adversely affect the Lenders, and where such withdrawals,
failures or amendments, as the case may be, have not had, and could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (iii) the abandonment by the Borrower or any of its
Subsidiaries of any rights, franchises, licenses, trademarks, copyrights and
patents that the Borrower reasonably determines are not useful to or needed in
its or their business, as the case may be.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such noncompliances as have not had, and could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
8.06 Compliance with Environmental Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all Environmental Laws applicable to
the Borrower and its Subsidiaries (and the respective businesses conducted by
them) and the ownership or use of any Real Property now or hereafter owned or
operated by the Borrower or any of its Subsidiaries, and will within a
reasonable time period pay or cause to be paid all costs and expenses incurred
in connection with such compliance (except to the extent being contested in good
faith).
37
Furthermore, neither the Borrower nor any of its Subsidiaries will generate,
use, treat, store, release or dispose of, or permit the generation, use,
treatment, storage, release or disposal of, Hazardous Materials on any Real
Property now or hereafter owned or operated or occupied by the Borrower or any
of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property. Notwithstanding anything to the
contrary contained above, the covenant contained above in this Section 8.06
shall only be violated if the aggregate effect of all failures and
noncompliances with respect to the matters described above in this Section 8.06
has had, or could reasonably be expected to have, a Material Adverse Effect.
8.07 ERISA. As soon as possible and, in any event, within 30 days after
the Borrower or any of its Subsidiaries or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to the Administrative Agent, and the Administrative Agent shall promptly
forward to each Lender, a certificate of an Authorized Representative of the
Borrower setting forth details as to such occurrence and the action, if any,
that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, such Subsidiary, the ERISA Affiliate, the
PBGC, or a Plan or Multiemployer Plan participant, or the Plan administrator
with respect thereto: (i) that a Reportable Event has occurred; (ii) that an
accumulated funding deficiency has been incurred or an application is likely to
be or has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required installment
payments) or an extension of any amortization period under Section 412 of the
Code with respect to a Plan and/or a Multiemployer Plan; (iii) that a Plan
and/or Multiemployer Plan has been or is reasonably expected to be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; (iv)
that a Plan and/or a Multiemployer Plan has an Unfunded Current Liability giving
rise to a lien under ERISA or the Code; (v) that proceedings are likely to be or
have been instituted or notice has been given to terminate or appoint a trustee
to administer a Plan and/or a Multiemployer Plan; (vi) that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Multiemployer Plan if material in amount; (vii) that the
Borrower, any of its Subsidiaries or any ERISA Affiliate will or is reasonably
expected to incur any liability (including any indirect, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
and/or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan and/or Multiemployer Plan under Section
401(a)(29) of the Code which could reasonably be expected to have a Material
Adverse Effect; or that the Borrower or any Subsidiary is reasonably expected to
incur any liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA) which
liability, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. Upon request, the Borrower will deliver to each
of the Lenders a complete copy of the annual report (Form 5500) of each Plan
required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Lenders pursuant to the first sentence
hereof, copies of such annual reports and any material notices received by the
Borrower or any of its Subsidiaries or any ERISA Affiliate with respect to any
Plan and/or Multiemployer Plan and/or Foreign Pension Plan shall be delivered to
the Lenders no later than 30 days after the date such report has been requested
or such notice has been received by the Borrower, such Subsidiary or such ERISA
Affiliate, as applicable. The Borrower and each of its applicable
38
Subsidiaries shall ensure that all Foreign Pension Plans administered by it or
into which it makes payments obtains or retains (as applicable) registered
status under and as required by applicable law and is administered in a timely
manner in all respects in compliance with all applicable laws except where the
failure to do any of the foregoing could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Affect.
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower shall cause (i)
each of its, and each of its Subsidiaries', fiscal years to end on the Saturday
closest to December 31 of each year and (ii) each of its, and each of its
Subsidiaries', fiscal quarters to end on the date which is sixteen weeks after
the last day of the previous fiscal year, twenty-eight weeks after the last day
of the previous fiscal year, forty weeks after the last day of the previous
fiscal year, or fifty-two weeks after the last day of the previous fiscal year.
8.09 Payment of Taxes. The Borrower will pay and discharge, or cause to be
paid and discharged, and will cause each of its Subsidiaries to pay and
discharge, all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties belonging to it,
in each case on a timely basis and prior to the date on which penalties attach
thereto and all lawful claims which, if unpaid, might become a Lien or charge
upon any properties of the Borrower or any of its Subsidiaries not otherwise
permitted under Section 9.01(i); provided that neither the Borrower nor any of
its Subsidiaries shall be required to pay any such tax, assessment, charge, levy
or claim which is being contested in good faith and by proper proceedings if it
has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
8.10 Additional Subsidiary Guarantors. The Borrower agrees to cause each
of its Wholly-Owned Domestic Subsidiaries that are acquired or created after the
Restatement Effective Date to promptly (and in any event within 20 Business Days
of such acquisition or creation) execute and deliver a counterpart of (or, if
requested by the Administrative Agent, an assumption agreement or a Joinder
Agreement in respect of) the Subsidiaries Guaranty.
8.11 Use of Proceeds. The Borrower will use the proceeds of the Loans only
as provided in Section 7.08.
SECTION 9. Negative Covenants. The Borrower covenants and agrees that on
and after the Restatement Effective Date and until the Total Commitment and all
Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings (in
each case together with interest thereon), Fees and all other Obligations (other
than indemnities described in Section 13.03 which are not then due and payable)
incurred hereunder and thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions
39
of this Section 9.01 shall not prevent the creation, incurrence, filing,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with generally accepted
accounting principles in the United States (or the equivalent
thereof in any country in which a Foreign Subsidiary is doing
business, as applicable);
(ii) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for
borrowed money, such as carriers', warehousemen's, materialmen's and
mechanics' liens and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of the Borrowers' or such Subsidiary's
property or assets or materially impair the use thereof in the
operation of the business of the Borrower or such Subsidiary or (y)
which are being contested in good faith by appropriate proceedings,
which proceedings (or orders entered in connection with such
proceedings) have the effect of preventing the forfeiture or sale of
the property or assets subject to any such Lien;
(iii) Liens in existence on the Restatement Effective Date
which are listed, and the property subject thereto described, in
Schedule V, plus renewals, replacements and extensions of such
Liens, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from
that amount outstanding at the time of any such renewal, replacement
or extension and (y) any such renewal, replacement or extension does
not encumber any additional assets or properties of the Borrower or
any of its Subsidiaries;
(iv) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now
or hereafter in existence, not securing Indebtedness and not
materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(v) Liens arising from the rights of lessors under operating
leases entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business;
(vi) Liens arising out of the existence of judgments or awards
not constituting an Event of Default under Section 10.08;
(vii) statutory and common law landlords' liens (or
contractual landlords' liens which are limited solely to the leased
premises which are the
40
subject of such contract and fixtures thereon) under leases or
subleases to which the Borrower or any of its Subsidiaries is a
party;
(viii) any interest or title of a lessor, sublessor, licensee
or licensor under any lease or license agreement permitted by this
Agreement;
(ix) Liens (other than any Lien imposed by ERISA) incurred in
the ordinary course of business of the Borrower or any of its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other social security legislation;
(x) Liens (x) to secure the performance by the Borrower or any
of its Subsidiaries of tenders, statutory obligations (other than
excise taxes), surety, stay, customs and appeal bonds, statutory
bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) and
securing liability for premiums to insurance carriers or (y) to
secure the performance by the Borrower or any of its Subsidiaries of
leases of Real Property, to the extent incurred or made in the
ordinary course of business consistent with past practices;
(xi) Liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods; and
(xii) Liens not otherwise permitted pursuant to this Section
9.01 which secure obligations otherwise permitted under this
Agreement not exceeding, when added to the aggregate principal
amount of unsecured Permitted Subsidiary Indebtedness at any time
outstanding, $75,000,000 in aggregate principal amount at any time
outstanding and which apply to property and/or assets with an
aggregate fair market value (as determined in good faith by an
Authorized Representative of the Borrower or the Board of Directors
of the Borrower) not to exceed at any time $90,000,000.
9.02 Consolidations, Mergers, Sales of Assets and Acquisitions. (a) The
Borrower will not, and will not permit any of its Subsidiaries to, consolidate
or merge with or into any other Person, provided that the Borrower and its
Subsidiaries may consolidate or merge with or into other Persons so long as (i)
both before and immediately after giving effect thereto, no Specified Default or
Event of Default shall have occurred and be continuing, (ii) in the case of any
consolidation or merger involving the Borrower, the Borrower is the corporation
surviving such consolidation or merger and (iii) in the case of any
consolidation or merger involving a Subsidiary Guarantor, a Subsidiary Guarantor
is the surviving Person unless the respective Subsidiary Guarantor is
consolidating with or merging into the Borrower (in which case the Borrower will
be the survivor thereof).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or
dispose of, voluntarily or involuntarily
41
(any of the foregoing being referred to in this Section 9.02(b) as a
"Disposition" and any series of related Dispositions constituting but a single
Disposition), any of its properties or assets, tangible or intangible (including
but not limited to sale, assignment, discount or other disposition of accounts,
contract rights, chattel paper or general intangibles with or without recourse),
provided that (A) such Dispositions shall be permitted if (i) such Disposition
is in an arm's length transaction and the Borrower or its respective Subsidiary
receives at least fair market value therefor (as determined in good faith by an
Authorized Representative of the Borrower or the Board of Directors of the
Borrower) and (ii) the fair market value of the assets sold, conveyed, assigned,
leased, abandoned or otherwise transferred or disposed of pursuant to any
Disposition or Dispositions (as determined in good faith by an Authorized
Representative of the Borrower or the Board of Directors of the Borrower), when
added to the fair market value of the assets sold, conveyed, assigned, leased,
abandoned or otherwise transferred or disposed of pursuant to all such other
Disposition or Dispositions previously consummated after the Restatement
Effective Date (as determined in good faith by an Authorized Representative of
the Borrower or the Board of Directors of the Borrower), does not constitute
more than 20% of the consolidated assets of the Borrower and its Subsidiaries as
of the time of such Disposition (after giving effect thereto) and (B) the
Borrower may make Dispositions to Subsidiary Guarantors and any Subsidiary
Guarantor may make Dispositions to the Borrower or any other Subsidiary
Guarantor.
(c) The Borrower will not, and will not permit any of its
Subsidiaries to, consummate any Significant Acquisition unless (i) no Specified
Default or Event of Default then exists or would result therefrom and (ii) the
Borrower shall have delivered to the Administrative Agent an officer's
certificate (together with reasonably detailed calculations) demonstrating
compliance with the covenants contained in Sections 9.07 and 9.08, for the
period (each, a "Calculation Period") of four consecutive fiscal quarters (taken
as one accounting period) most recently ended for which financial statements
have been delivered (or were required to be delivered) pursuant to Section
8.01(a) or (b), as the case may be, prior to the date of such Significant
Acquisition, on a pro forma basis as if the respective Significant Acquisition
(as well as all other Dispositions and Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred on the first day of
such Calculation Period, and such recalculations shall show that such financial
covenants would have been complied with if such Significant Acquisition (as well
as all other Dispositions and Acquisitions theretofore consummated after the
first day of such Calculation Period) had occurred on the first day of such
Calculation Period.
9.03 Dissolution, etc. The Borrower will not, and will not permit any of
its Subsidiaries to, dissolve or liquidate, either in whole or in part, except
(i) to the extent permitted by Section 9.02(a) and (ii) inactive Subsidiaries of
the Borrower (i.e., Subsidiaries of the Borrower that do not conduct business
other than that related solely to its existence and governance) may be dissolved
or liquidated from time to time so long as (x) no Specified Default or Event of
Default then exists or would result therefrom and (y) the Borrower determines
that such dissolution or liquidation is not adverse to the interests of the
Lenders.
9.04 Restricted Payments. The Borrower shall not declare or pay any
dividends, purchase, redeem, retire, defease or otherwise acquire for value any
of its Equity Interests now or hereafter outstanding, return any capital to its
shareholders, partners or members (or the equivalent Persons thereof) as such,
make any distribution of assets, Equity Interests, obligations
42
or securities to its shareholders, partners or members (or the equivalent
Persons thereof) as the case may be, or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Borrower if, in any case referred to above, any Specified
Default or any Event of Default has occurred, is continuing or would result
therefrom.
9.05 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except for (i) Indebtedness incurred pursuant to this Agreement
and the other Credit Documents, (ii) Permitted Borrower Indebtedness, (iii)
Permitted Subsidiary Indebtedness, (iv) Permitted Subsidiary Guarantee
Obligations and (v) Scheduled Existing Indebtedness to the extent the same is
listed on Schedule VI, together with, in the case of this clause (v), any
refinancings or renewals thereof, in each case so long as no additional obligors
or guarantors, or additional security, is provided in connection with the
respective renewal or refinancing and so long as the principal amount is not
increased as a result thereof.
9.06 Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into or be a party to a transaction
with any Affiliate of the Borrower or any other Subsidiary of the Borrower,
except for transactions between (i) the Borrower and any Subsidiary Guarantor,
(ii) any Subsidiary Guarantor and any other Subsidiary Guarantor or (iii) the
Borrower or any Subsidiary of the Borrower on one hand and any Affiliate of the
Borrower and/or any other Subsidiary of the Borrower on the other hand, so long
as all such transactions referred to in this clause (iii) are entered into in
good faith in the ordinary course of business consistent with past practice and
on terms no less favorable to the Borrower or such Subsidiary of the Borrower
than those that could have been obtained in a comparable transaction on an arm's
length basis from an unrelated Person.
9.07 Maximum Leverage Ratio. The Borrower will not permit the Leverage
Ratio at any time to be greater than 2.75:1.00.
9.08 Minimum Interest Coverage Ratio. The Borrower will not permit the
Consolidated Interest Coverage Ratio on the last day of any fiscal quarter of
the Borrower to be less than 4.50:1.00.
9.09 Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than
substantially the same lines of business in which they are engaged on the
Restatement Effective Date and reasonable extensions thereof and other
businesses that are complimentary or reasonably related thereto.
9.10 Limitation on Certain Restrictions on Subsidiaries. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Subsidiary to (x) pay dividends or
make any other distributions on its Equity Interests or any other interest or
participation in its profits owned by the Borrower or any of its Subsidiaries,
or pay any Indebtedness owed to the Borrower or any of its Subsidiaries, (y)
make loans or advances to the Borrower or any of its Subsidiaries or (z)
transfer any of its properties or assets to the Borrower or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii)
43
in the case of the foregoing clauses (y) (solely to the extent such encumbrance
or restriction only applies to loans or advances made by any such Subsidiary of
the Borrower to other Subsidiaries of the Borrower, and not loans and advances
to be made by any such Subsidiary to the Borrower) and (z) of this Section 9.10,
other Indebtedness permitted pursuant to Section 9.05, (iv) holders of Permitted
Liens may restrict the transfer of any assets subject thereto, (v) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or of any Subsidiary of the Borrower, and
(vi) customary provisions restricting assignment of any licensing agreement
entered into by the Borrower or any of its Subsidiaries in the ordinary course
of business.
9.11 Limitation on Issuance of Capital Stock. (a) The Borrower will not
issue (i) any Preferred Stock other than (x) Qualified Preferred Stock or (y)
Disqualified Preferred Stock so long as, on the date of any an issuance of
Disqualified Preferred Stock, (I) no Specified Default or Event of Default then
exists or would result therefrom and (II) the Borrower is in compliance with the
covenants contained in Sections 9.07 and 9.08 for the most recently ended
Calculation Period, on a pro forma basis as if the respective issuance of
Disqualified Preferred Stock (as well as all other issuances of Disqualified
Preferred Stock theretofore consummated after the first day of such Calculation
Period) had occurred on the first day of such Calculation Period or (ii) any
redeemable common stock other than common stock that is redeemable at the sole
option of the Borrower.
(b) The Borrower shall not permit any of its Subsidiaries to issue
any Equity Interests (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except for issuances of non-redeemable common equity interests issued (i) for
transfers and replacements of then outstanding shares of capital stock, (ii) for
stock splits, stock dividends and additional issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiaries, (iii) to qualify directors to the extent
required by applicable law, and (iv) by newly created or acquired Subsidiaries
in accordance with the terms of this Agreement.
SECTION 10. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due of
any principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for three or more Business Days, in the payment when due of
any Unpaid Drawings or interest on any Loan or Note, or any Fees or any other
amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement made
by any Credit Party herein or in any other Credit Document or in any certificate
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
10.03 Covenants. The Borrower shall (i) default in the due performance or
observance by it of any term, covenant or agreement contained in Section
8.01(d)(i), 8.08, 8.10 or Section 9 or (ii) default in the due performance or
observance by it of any other term, covenant or
44
agreement contained in this Agreement and such default shall continue unremedied
for a period of 30 days after written notice to the Borrower by the
Administrative Agent or any Lender; or
10.04 Default Under Other Agreements. (i) The Borrower or any of its
Subsidiaries shall default in any payment of any Indebtedness (other than the
Obligations) beyond the period of grace or cure, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (ii) the
Borrower or any of its Subsidiaries shall default in the observance or
performance of any agreement or condition relating to any Indebtedness (other
than the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (after giving effect to any grace or
cure period, but determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity; or (iii) any
Indebtedness (other than the Obligations) of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
(other than (x) by a regularly scheduled required prepayment or (y) as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default thereunder or an event of the type that constitutes an
Event of Default)), prior to the stated maturity thereof, provided that it shall
not be a Default or Event of Default under this Section 10.04 unless the
aggregate principal amount of all Indebtedness as described in preceding clauses
(i) through (iii), inclusive, is at least $25,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy" as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within
10 days after service of summons, or is not dismissed within 60 days after
service of summons, after commencement of the case; or a custodian (as defined
in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any of its Subsidiaries, or
the Borrower or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Subsidiaries, or
there is commenced against the Borrower or any of its Subsidiaries any such
proceeding which remains undismissed for a period of 60 days, or the Borrower or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or the
Borrower or any of its Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or the Borrower or any of its Subsidiaries
makes a general assignment for the benefit of creditors; or any corporate action
is taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan and/or Multiemployer Plan shall fail to satisfy
the minimum funding standard required for any plan year or part thereof or a
waiver of such standard or extension of any amortization period is sought or
granted under Section 412 of the Code, any Plan and/or Multiemployer Plan shall
have had or is likely to have a trustee appointed to administer such Plan and/or
Multiemployer Plan pursuant to Section 4042 of ERISA, any Plan and/or
Multiemployer Plan shall have been or is reasonably expected to be terminated or
to be the subject of termination proceedings under Section 4042 of ERISA, any
Plan
45
and/or Multiemployer Plan shall have an Unfunded Current Liability, a
contribution required to be made to a Plan, Multiemployer Plan and/or Foreign
Pension Plan has not been timely made, the Borrower or any of its respective
Subsidiaries or any ERISA Affiliate have incurred or is reasonably expected to
incur a liability to or on account of a Plan and/or Multiemployer Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code, or the Borrower or
any of its respective Subsidiaries have incurred or are reasonably expected to
incur liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) which provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA) or Foreign
Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; (c) and in each case in clauses (a) and
(b) above, such lien, security interest or liability, individually, or in the
aggregate, has had or could reasonably be expected to have a Material Adverse
Effect; or
10.07 Subsidiaries Guaranty. The Subsidiaries Guaranty or any provision
thereof shall cease to be in full force or effect as to any Subsidiary Guarantor
(unless such Subsidiary Guarantor is no longer a Subsidiary by virtue of
liquidation, sale, merger or consolidation permitted by Section 9.02 or Section
9.03), or any Subsidiary Guarantor (or Person acting by or on behalf of such
Subsidiary Guarantor) shall deny or disaffirm such Subsidiary Guarantor's
obligations under the Subsidiaries Guaranty, or any Subsidiary Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to the Subsidiaries Guaranty
beyond any grace or cure period (if any) provided therefor; or
10.08 Judgments. One or more judgments or decrees shall be entered against
the Borrower or any of its respective Subsidiaries involving in the aggregate
for the Borrower and its respective Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 60 consecutive
days, and the aggregate amount of all such judgments exceeds $25,000,000; or
10.09 Change of Control. A Change of Control shall occur; then, and in any
such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent, upon the written request of the Required
Lenders, shall by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of any Agent, any Lender or
the holder of any Note to enforce its claims any Credit Party (provided that, if
an Event of Default specified in Section 10.05 shall occur with respect to the
Borrower, the result of which would occur upon the giving of such written notice
by the Administrative Agent to the Borrower as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately and any Facility Fees and other Fees shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
the Notes and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable
46
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; (iii) terminate any Letter of Credit
which may be terminated in accordance with its terms; (iv) direct the Borrower
to pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Administrative Agent at the Payment Office such
additional amount of cash, to be held as security by the Administrative Agent,
as is equal to the aggregate Stated Amount of all Letters of Credit issued for
the account of the Borrower then outstanding; and (v) apply any cash collateral
held for the benefit of the Lenders pursuant to Section 4.02 to repay
outstanding Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquisition" shall mean the acquisition of all or any portion of the
assets or all or any portion of the Equity Interests of any Person.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other Person
(including, for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 9.06, an Affiliate of the Borrowers shall include
any Person that directly or indirectly owns more than 5% of any class of the
Equity Interests of the Borrower and any officer or director of the Borrower or
any of its Subsidiaries. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
anything to the contrary contained above, for purposes of Section 9.06, no Agent
or Lender shall be deemed to constitute an Affiliate of the Borrower or its
Subsidiaries in connection with the Credit Documents or its dealings or
arrangements relating thereto.
"Agents" shall mean, collectively, the Administrative Agent, the Lead
Arranger, the Syndication Agent and the Co-Documentation Agents.
"Aggregate Consideration" shall mean, with respect to any Acquisition, the
sum (without duplication) of (i) the fair market value of the common stock of
the Borrower (based on (x) the closing and/or trading price of the common stock
of the Borrower on the date of such Acquisition on the stock exchange on which
the common stock of the Borrower is listed or the automated quotation system on
which the common stock is quoted, or (y) if the common stock of the Borrower is
not listed on an exchange or quoted on a quotation system, the bid and asked
prices of the common stock in the over-the-counter market at the close of
trading or (z) if the common stock of the Borrower is not so listed, based on a
good faith determination of an
47
Authorized Representative of the Borrower or the Board of Directors of the
Borrower) issued as consideration in connection with such Acquisition, (ii) the
aggregate amount of all cash paid by the Borrower or any of its Subsidiaries in
connection with such Acquisition (including payments of fees and costs and
expenses in connection therewith), (iii) the aggregate principal amount of all
Indebtedness assumed, incurred and/or issued in connection with such Acquisition
to the extent permitted by Section 9.05, (iv) the aggregate amount that could
reasonably be expected to be paid (based on good faith projections prepared by
an Authorized Representative of the Borrower or the Board of Directors of the
Borrower) pursuant to any earn-out, non-compete, consulting or deferred
compensation or purchase price adjustment) for such Acquisition and (v) the fair
market value (based on good faith projections prepared by an Authorized
Representative of the Borrower or the Board of Directors of the Borrower) of all
other consideration payable in connection with such Acquisition.
"Agreement" shall mean this Credit Agreement, as modified, supplemented,
amended, restated, extended, renewed or replaced from time to time.
"Applicable Facility Fee Percentage" and "Applicable Margin" shall
initially mean a percentage per annum equal to (A) in the case of the Applicable
Facility Fee Percentage, 0.125% and (B) in the case of the Applicable Margin (x)
with respect to Loans maintained as Base Rate Loans, 0.0% and (y) with respect
to Loans maintained as Eurodollar Loans, 0.625%. From and after each day of
delivery of any certificate in accordance with the first sentence of the
following paragraph for any fiscal quarter or fiscal year, as the case may be,
of the Borrower ending on or about January 1, 2005 or thereafter, indicating a
different margin than that described in the immediately preceding sentence
(each, a "Start Date"), to and including the applicable End Date described
below, the Applicable Facility Fee Percentage and the Applicable Margins, shall
(subject to any adjustment pursuant to the immediately succeeding paragraph) be
that set forth below opposite the Leverage Ratio indicated to have been achieved
in any certificate delivered in accordance with the following sentence:
Applicable Margin
for Revolving Loans Applicable Margin
maintained as Base for Revolving Loans
Rate Loans and maintained as Applicable Facility
Leverage Ratio Swingline Loans Eurodollar Loans Fee Percentage
- -------------------------- ------------------- ------------------- -------------------
Equal to or less than 0.00% 0.625% 0.125%
1.00:1.00
Greater than 1.00:1.00 but 0.00% 0.725% 0.15%
less than or equal to
1.50:1.00
48
Applicable Margin
for Revolving Loans Applicable Margin
maintained as Base for Revolving Loans
Rate Loans and maintained as Applicable Facility
Leverage Ratio Swingline Loans Eurodollar Loans Fee Percentage
- -------------------------- ------------------- ------------------- -------------------
Greater than 1.50:1.00 but 0.00% 0.80% 0.20%
less than or equal to
1.75:1.00
Greater than 1.75:1.00 but 0.00% 1.00% 0.25%
less than or equal to
2.25:1.00
Greater than 2.25:1.00 0.20% 1.20% 0.30%
The Leverage Ratio shall be determined based on the delivery of a
certificate of the Borrower by an Authorized Representative of the Borrower to
the Administrative Agent and the Lenders, within 45 days of the last day of any
fiscal quarter of the Borrower (or 90 days in the case of the last fiscal
quarter of any fiscal year of the Borrower), which certificate shall set forth
the calculation of the Leverage Ratio as at the last day of the Test Period
ended immediately prior to the relevant Start Date and the Applicable Facility
Fee Percentage and the Applicable Margins which, in each case, shall be
thereafter applicable (until same are changed or cease to apply in accordance
with the following sentences). The Applicable Facility Fee Percentage and the
Applicable Margins so determined shall apply, except as set forth in the
succeeding sentence, from the relevant Start Date to the earlier of (x) the date
on which the next certificate is delivered to the Administrative Agent and (y)
the date which is 45 days (or 90 days in the case of the last fiscal quarter of
any fiscal year of the Borrower) following the last day of the Test Period in
which the previous Start Date occurred (such earliest date, the "End Date"), at
which time, if no certificate has been delivered to the Administrative Agent
(and thus commencing a new Start Date), the Applicable Facility Fee Percentage
and the Applicable Margins shall be those set forth in the table above
determined as if the Leverage Ratio were greater than 2.25:1.00 (such Applicable
Facility Fee Percentage and Applicable Margins as so determined, being
collectively referred to herein as the "Highest Applicable Margins"), until such
time as the relevant certificate has been delivered. Notwithstanding anything to
the contrary contained above in this definition, (i) the Applicable Facility Fee
Percentage and the Applicable Margins shall be the Highest Applicable Margins
(subject to further adjustment to the extent provided in Section 1.08(c)) at all
times during which there shall exist any Default or Event of Default and (ii)
prior to the date of delivery of the financial statements pursuant to Section
8.01(b) for the fiscal year of the Borrower ended on or about January 1, 2005,
in no event shall the Applicable Facility Fee Percentage or the Applicable
Margins be less than those described in the first sentence of this definition.
49
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit I (appropriately
completed).
"Attributable Debt" shall mean as of the date of determination thereof,
without duplication, (i) in connection with a Sale and Leaseback Transaction,
the net present value (discounted according to generally accepted accounting
principles at the cost of debt implied in the lease) of the obligations of the
lessee for rental payments during the then remaining term of any applicable
lease, and (ii) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with generally accepted accounting principles.
"Authorized Representative" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion/Continuation, Letter of Credit
Requests and similar notices, any person or persons that has or have been
authorized by the Board of Directors of the Borrower to deliver such notices
pursuant to this Agreement and that has or have appropriate signature cards on
file with the Administrative Agent, the Swingline Lender and each Issuing
Lender; (ii) delivering financial information and officer's certificates or
making financial determinations pursuant to this Agreement, any financial
officer of the respective Credit Party and (iii) any other matter in connection
with this Agreement or any other Credit Document, any officer (or a person or
persons so designated by any two officers) of the respective Credit Party.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean the higher of (x) the Prime Lending Rate and (y)
1/2 of 1% in excess of the overnight Federal Funds Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
Revolving Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from the Swingline Lender on a given date or (ii) one Type of Revolving
Loan by the Borrower from all of the Lenders on a pro rata basis on a given date
(or resulting from conversions on a given date), having in the case of
Eurodollar Loans the same Interest Period; provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except Saturday, Sunday and any day which shall be in
New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
50
"Calculation Period" shall have the meaning provided in Section 9.02.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one
year from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, with maturities of not more than one year from the date of
acquisition by such Person, (iii) repurchase obligations with a term of not more
than 90 days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper issued by any Person incorporated in the
United States rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's and in each case maturing not more than
one year after the date of acquisition by such Person, (v) investments in money
market funds substantially all of whose assets are comprised of securities of
the types described in clauses (i) through (iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (i) any "Person" or "Group" (within the
meaning of Sections 13(d) and 14(d) under the Exchange Act, as in effect on the
Initial Borrowing Date) (other than the Permitted Holders) is or shall (A) be
the "beneficial owner" (as so defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act) of 30% or more on a fully diluted basis of the voting and/or
economic interest in the Borrower's capital stock or other Equity Interests or
(B) have obtained the power (whether or not exercised) to elect a majority of
the Borrower's directors or (ii) the Board of Directors of the Borrower shall
cease to consist of a majority of Continuing Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Co-Documentation Agents" shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
"Commitment" shall mean, for each Lender, the amount set forth opposite
such Lender's name in Schedule I hereto directly below the column entitled
"Commitment," as same may be (x) reduced from time to time pursuant to Sections
3.02, 3.03 and/or 10, (y) adjusted from time to
51
time as a result of assignments to or from such Lender pursuant to Section 1.13
or 13.04(b) or (z) increased from time to time pursuant to, and to the extent
permitted by, Section 1.14.
"Consolidated EBIT" shall mean, for any period, Consolidated Net Income
for such period, before interest expense and provision for taxes based on income
that were included and arriving at Consolidated Net Income for such period and
without giving effect to (x) any extraordinary gains or losses, (y) any gains or
losses from sales of assets other than inventory sold in the ordinary course of
business and (z) any interest expense or provision for taxes based on income of
any non-Subsidiary VIE.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation, in each case that were deducted in arriving at Consolidated EBIT
for such period, but without giving effect to any such amortization or
depreciation of any non-Subsidiary VIE.
"Consolidated Indebtedness" shall mean, as at any date of determination
and without duplication, (i) the aggregate stated balance sheet amount of all
Indebtedness (but including in any event the then outstanding principal amount
of all Loans, all Capitalized Lease Obligations and all Letter of Credit
Outstandings) of the Borrower and its Subsidiaries on a consolidated basis as
determined in accordance with generally accepted accounting principles, (ii) the
aggregate outstanding amount of all Attributable Debt of the Borrower and its
Subsidiaries at such time, and (iii) the aggregate amount of all Indebtedness of
the Borrower determined in accordance with clause (ix) of the definition
thereof; provided that (x) Indebtedness outstanding pursuant to trade payables
and accrued expenses incurred in the ordinary course of business shall be
excluded in determining Consolidated Indebtedness, (y) the items described in
clauses (ii) and (iii) above shall be included notwithstanding any contrary
treatment required by generally accepted accounting principles and (z) the
Indebtedness and Attributable Debt of any non-Subsidiary VIE shall be excluded.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA for such period to Consolidated Interest Expense
for such period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, (x) that portion of Capitalized Lease Obligations of
the Borrower and its Subsidiaries representing the interest factor for such
period and (y) the product of (i) all dividends actually paid, whether paid in
cash or in any other consideration during such period with respect to any
Disqualified Preferred Stock, multiplied by (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of the Borrower, expressed as a
decimal; provided that there shall be excluded from Consolidated Interest
Expense (a) the amortization of any deferred financing costs to the extent same
would otherwise have been included therein and (b) any interest expense and any
interest factor of any Capitalized Lease Obligations of any non-Subsidiary VIE
and any such dividends paid by any non-Subsidiary VIE.
"Consolidated Net Income" shall mean, for any period, the net after tax
income of the Borrower and its Subsidiaries determined on a consolidated basis;
provided that in determining
52
Consolidated Net Income (i) the net income of any Person that is not a
Subsidiary of the Borrower or that is accounted for by the equity method of
accounting shall be included only to the extent of the payment of dividends or
disbursements by such Person to the Borrower of a Wholly-Owned Subsidiary of the
Borrower during such period, (ii) the net income of any Subsidiary of the
Borrower shall be excluded to the extent that the declaration or payment of
dividends and disbursements by that Subsidiary of net income is not at the date
of determination permitted by operation of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary or its stockholders and (iii) the net income of
any Person acquired by the Borrower or any of its Subsidiaries in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection or product warranties extended, in each
case, in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument evidencing
such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the
Restatement Effective Date and each other director if such director's nomination
for election to the board of directors of the Borrower is recommended by a
majority of the then Continuing Directors or is recommended by a committee of
the Board of Directors a majority of which is composed of the then Continuing
Directors.
"Credit Documents" shall mean this Agreement and, after the execution and
delivery thereof pursuant to the terms of this Agreement, each Note and the
Subsidiaries Guaranty, each Incremental Revolving Loan Commitment Agreement and,
after the execution and delivery thereof, each additional guaranty, assumption
agreement and Joinder Agreement executed pursuant to Section 8.10.
"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
53
"DBAG" shall mean Deutsche Bank AG, New York Branch, in its individual
capacity.
"DBSI" shall mean Deutsche Bank Securities Inc., in its individual
capacity.
"Debt Rating" shall mean, on any date, each of the Borrower's senior
unsecured long-term Indebtedness rating and/or senior implied corporate rating
(as available), in each case, as most recently publicly announced by Moody's and
S&P.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender
Default is in effect.
"Disposition" shall have the meaning provided in Section 9.02.
"Disqualified Preferred Stock" shall mean, collectively, (i) all Preferred
Stock of the Borrower other than Qualified Preferred Stock and (ii) all
Preferred Stock of any Subsidiary of the Borrower (other than such Preferred
Stock held by the Borrower or a Wholly-Owned Subsidiary thereof).
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower that is
incorporated under the laws of the United States, any State or territory thereof
or the District of Columbia.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Eligible Transferee" shall mean and include a commercial bank, a
financial institution, any fund that regularly invests in bank loans or other
"accredited investor" (as defined in Regulation D of the Securities Act) but in
any event excluding the Borrower and its Subsidiaries.
"End Date" shall have the meaning assigned that term in the definitions of
"Applicable Facility Fee Percentage" and "Applicable Margins", contained herein.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief in connection with alleged injury or threat of
injury to health, safety or the environment due to the presence of Hazardous
Materials.
54
"Environmental Law" means any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy and rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on the Borrower or any
of its respective Subsidiaries, relating to the environment, employee health and
safety or Hazardous Materials, including, without limitation, CERCLA; RCRA; the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 3803
et seq.; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C.
Section 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C.
Section 1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq. (to the extent it regulates occupational exposure to Hazardous
Materials); and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"Equity Interest" of any Person shall mean any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interest in (however designated) equity of such Person, including, without
limitation, any common stock, preferred stock, any limited or general
partnership interest and any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or any
Subsidiary of the Borrower being or having been a general partner of such
person.
"Eurodollar Loan" shall mean each Loan designated as such by the Borrower
at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean with respect to each Interest Period for a
Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of 1%)
of the offered quotation to first-class banks in the New York interbank
Eurodollar market by DBAG for U.S. dollar deposits of amounts in same day funds
comparable to the outstanding principal amount of the Eurodollar Loan of DBAG
for which an interest rate is then being determined with maturities comparable
to the Interest Period to be applicable to such Eurodollar Loan, determined as
of 10:00 A.M. (New York time) on the Interest Determination Date for such
Interest Period divided (and rounded upward to the next whole multiple of 1/16
of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
55
"Event of Default" shall have the meaning provided in Section 10.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Credit Agreement" shall have the meaning provided in the
recitals of this Agreement.
"Existing Letters of Credit" shall have the meaning provided in Section
2.01(a).
"Facility Fee" shall have the meaning provided in Section 3.01(a).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"FIN 46" means FASB Interpretation No. 46.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States by the Borrower or any one or more of its
Subsidiaries primarily for the benefit of employees of the Borrower or such
Subsidiary residing outside the United States, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean, as to any Person, each Subsidiary of such
Person which is not a Domestic Subsidiary.
"Guaranteed Obligations" shall mean the "Guaranteed Obligations" under,
and as defined in, the Subsidiaries Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing any level of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to
56
which is prohibited, limited or regulated by any governmental authority under
Environmental Laws.
"Highest Applicable Margins" shall have the meaning assigned that term in
the definitions of "Applicable Facility Fee Percentage" and "Applicable Margin"
contained herein.
"Incremental Revolving Loan Commitment" shall mean, for each Incremental
RL Lender, any commitment by such Incremental RL Lender to make Revolving Loans
pursuant to Section 1.01(a) as agreed to by such Incremental RL Lender in the
respective Incremental Revolving Loan Commitment Agreement delivered pursuant to
Section 1.14; it being understood, however, that on each Incremental Revolving
Loan Commitment Date, such Incremental Revolving Loan Commitment of such
Incremental RL Lender shall, as applicable, become or be added to (and
thereafter become a part of) the Commitment of such Incremental RL Lender for
all purposes of this Agreement as contemplated by Section 1.14 and as same may
be terminated pursuant to Sections 3.03 and/or 10.
"Incremental Revolving Loan Commitment Agreement" shall mean an
Incremental Revolving Loan Commitment Agreement substantially in the form of
Exhibit L (appropriately completed).
"Incremental Revolving Loan Commitment Date" shall mean each date upon
which an Incremental Revolving Loan Commitment under an Incremental Revolving
Loan Commitment Agreement becomes effective as provided in Section 1.14(b)(i).
"Incremental Revolving Loan Commitment Requirements" shall mean, with
respect to any provision of an Incremental Revolving Loan Commitment on a given
Incremental Revolving Loan Commitment Date, the satisfaction of each of the
following conditions: (i) no Default or Event of Default then exists or would
result therefrom (for purposes of such determination, assuming the relevant
Loans in an aggregate principal amount equal to the full amount of Incremental
Revolving Loan Commitments then requested or provided had been incurred on the
Incremental Revolving Loan Commitment Date), (ii) calculations are made by the
Borrower demonstrating compliance with the covenants contained in Sections 9.07
and 9.08 for the Test Period most recently ended prior to the relevant
Incremental Revolving Loan Commitment Date on a pro forma basis, as if the
maximum principal amount of all Revolving Loans estimated by the Borrower in
good faith to be outstanding against the Total Commitments (after giving effect
to such Incremental Revolving Loan Commitments) during the six-month period
following the relevant Incremental Revolving Loan Commitment Date had been
incurred on the first day of such Test Period, (iii) the Borrower shall have
certified to the Administrative Agent that the incurrence of Loans in an
aggregate principal amount equal to the full amount of the Total Commitment
(after giving effect to all Incremental Revolving Loan Commitments then
requested or provided) is permitted under, and in accordance with all indentures
and all other material debt agreements to which a Credit Party is a party, (iv)
all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made as of the
relevant Incremental Revolving Loan Commitment Date (after giving effect to the
incurrence of the respective Loan), unless stated to relate to a specified date,
in which case such representations and warranties shall be true and correct in
all material respects as of such
57
specified date, (v) all other conditions precedent agreed to by the Borrower
that may be set forth in the respective Incremental Revolving Loan Commitment
Agreement shall have been satisfied to the reasonable satisfaction of the
Administrative Agent, and (vi) the delivery by the Borrower of an officer's
certificate to the Administrative Agent certifying as to compliance with
preceding clauses (i), (ii), (iii) and (iv) and containing the calculations
required by preceding clauses (ii) and/or (iii) (as applicable).
"Incremental RL Lender" shall have the meaning provided in Section
1.14(b).
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services,
(ii) the maximum amount available to be drawn under all letters of credit issued
for the account of such Person and all unpaid drawings in respect of such
letters of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has been assumed
by such Person (to the extent of the value of the respective property), (iv) the
aggregate amount required to be capitalized under leases under which such Person
is the lessee, (v) all obligations of such person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such
Person, (vii) all obligations under any Interest Rate Protection Agreement,
Other Hedging Agreement or under any similar type of agreement, (viii) all
Attributable Debt of such Person and (ix) the greater of the aggregate
liquidation value or the maximum fixed repurchase price of all Disqualified
Preferred Stock, provided that, notwithstanding the foregoing, Indebtedness
outstanding pursuant to trade payables and accrued expenses incurred in the
ordinary course of business shall be excluded in determining Indebtedness.
"Interest Determination Date" shall mean, with respect to any Eurodollar
Loan, the second Business Day prior to the commencement of any Interest Period
relating to such Eurodollar Loan. "Interest Period" shall have the meaning
provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement, interest rate floor agreement or other similar agreement or
arrangement.
"Issuing Lender" shall mean DBAG (which for purposes of this definition
also shall include any banking affiliate of DBAG) and any other Lender which at
the request of the Borrower and with the consent of the Administrative Agent
(which shall not be unreasonably withheld or delayed) agrees, in such Lender's
sole discretion, to become an Issuing Lender for the purpose of issuing Letters
of Credit pursuant to Section 2. On the Restatement Effective Date the sole
Issuing Lender is DBAG.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit K (appropriately completed).
58
"L/C Supportable Obligations" shall mean obligations of the Borrower or
its Subsidiaries incurred in the ordinary course of business with respect to
insurance obligations and workers' compensation, surety bonds and other similar
statutory obligations, and all other obligations not otherwise prohibited by the
terms of this Agreement.
"Lead Arranger" shall mean DBSI, in its capacity as Sole Lead Arranger and
Bookrunner.
"Leaseholds" of any Person means all the right, title and interest of such
Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I, as
well as any Person which becomes a "Lender" hereunder pursuant to Section 1.13,
1.14 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been retracted)
or the failure of a Lender to make available its portion of any Borrowing
(including any Mandatory Borrowing) or to fund its portion of any unreimbursed
payment under Section 2.04(c) or (ii) a Lender having notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply with
its obligations under Section 1.01 or Section 2.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
amount of all Unpaid Drawings.
"Letter of Credit Request" shall mean any request for the issuance of a
Letter of Credit made by the Borrower pursuant to Section 2.03(a).
"Leverage Ratio" shall mean, at any date of determination, the ratio of
Consolidated Indebtedness on such date to Consolidated EBITDA for the Test
Period last ended on or prior to such date.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Mandatory Borrowing" shall have the meaning provided in Section 1.01(c).
"Margin Regulations" shall mean Regulation T, Regulation U and Regulation
X.
"Margin Stock" shall have the meaning provided in Regulation U.
59
"Material Adverse Effect" shall mean (i) a material adverse effect on the
property, assets, nature of assets, operations, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole
or (ii) a material adverse effect (x) on the rights or remedies of the
Administrative Agent or the Lenders under this Agreement or any other Credit
Document or (y) on the ability of the Credit Parties taken as a whole to perform
their obligations to the Administrative Agent or the Lenders under this
Agreement or any other Credit Document.
"Maturity Date" shall mean October 23, 2009.
"Maximum Swingline Amount" shall mean $25,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans $1,000,000
and (ii) for Swingline Loans, $100,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA, which is maintained or contributed to by (or to which there
is an obligation to contribute of) the Borrower or a Subsidiary of the Borrower
or an ERISA Affiliate and each such plan for the five year period immediately
following the latest date on which the Borrower, any Subsidiaries of the
Borrower or any ERISA Affiliates maintained, contributed to or had an obligation
to contribute to such plan.
"Non-Defaulting Lender" shall mean and include each Lender other than a
Defaulting Lender.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent located
at 60 Wall Street, 11(th) Floor, New York, New York 10005-2858, Attention:
Belinda Wheeler, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to any Agent, any Issuing
Lender or any Lender pursuant to the terms of this Agreement or any other Credit
Document.
"Original Effective Date" shall mean the "Effective Date" under, and as
defined in, the Existing Credit Agreement.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against the fluctuations in currency or commodity values.
"Participant" shall have the meaning provided in Section 2.04(a).
60
"Payment Office" shall mean the office of the Administrative Agent located
at 90 Hudson Street, Fifth Floor, Jersey City, New Jersey 07302, Attn: John
Quinn, or such other office as the Administrative Agent may hereafter designate
in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Lender at any time shall mean a fraction (expressed as
a percentage) the numerator of which is the Commitment of such Lender at such
time and the denominator of which is the Total Commitment at such time, provided
that if the Percentage of any Lender is to be determined after the Total
Commitment has been terminated, then the Percentages of the Lenders shall be
determined immediately prior (and without giving effect) to such termination.
"Permitted Holders" shall mean the descendants of William H. Flowers, Sr.
and members of their immediate families.
"Permitted Borrower Indebtedness" shall mean any Indebtedness incurred by
the Borrower after the Restatement Effective Date, so long as (i) both before
and immediately after giving effect to the incurrence of such Indebtedness, no
Default or Event of Default shall have occurred and be continuing, (ii) based on
calculations made by an Authorized Representative of the Borrower, the Borrower
and its Subsidiaries shall be in compliance with the financial covenant
contained in Section 9.07, both immediately before and after giving effect to
each incurrence of such Indebtedness and (iii) such Indebtedness (and any
guarantees thereof) shall rank pari passu or junior to the Obligations hereunder
and the Guaranteed Obligations.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Permitted Subsidiary Guarantee Obligations" shall mean any guarantee by a
Subsidiary Guarantor of Permitted Borrower Indebtedness.
"Permitted Subsidiary Indebtedness" shall mean any Indebtedness incurred
by any Subsidiary of the Borrower after the Restatement Effective Date (other
than (x) the Guaranteed Obligations and (y) Permitted Subsidiary Guarantee
Obligations), so long as (i) both before and immediately after giving effect to
the incurrence of such Indebtedness, no Default or Event of Default shall have
occurred and be continuing, (ii) based on calculations made by an Authorized
Representative of the Borrower, the Borrower and its Subsidiaries shall be in
compliance with the financial covenant contained in Section 9.07, both
immediately before and after giving effect to each incurrence of such
Indebtedness, (iii) such Indebtedness (and any guarantees thereof) shall rank
pari passu or junior to the Obligations hereunder and the Guaranteed Obligations
under (and as defined in) the Subsidiaries Guaranty, as the case may be, (iv)
the aggregate principal amount of all Permitted Subsidiary Indebtedness incurred
by Foreign Subsidiaries of the Borrower shall not exceed at any time $1,000,000
and (v) the sum of (A) the aggregate principal amount of all Permitted
Subsidiary Indebtedness plus (B) the aggregate principal amount of all
Indebtedness (other than Permitted Subsidiary Indebtedness) secured by Liens
permitted pursuant to Section 9.01(xii), shall not exceed at any time
$75,000,000.
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"Person" shall mean any individual, partnership, joint venture, firm,
limited liability company, corporation, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any single-employer plan, as defined in Section 4001 of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of), the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate maintained, contributed or had an obligation to contribute to
such plan.
"Preferred Stock" as applied to the capital stock of any Person, means
capital stock of such Person of any class or classes (however designed) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of capital stock of any other class of such Person.
"Prime Lending Rate" shall mean the rate which DBAG announces from time to
time as its prime lending rate, the Prime Lending Rate to change when and as
such prime lending rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. DBAG may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate.
"Qualified Preferred Stock" means any Preferred Stock of the Borrower, the
express terms of which shall provide that dividends thereon shall not be
required to be paid in cash at any time that such cash payment would be
prohibited by the terms of this Agreement or result in a Default or Event of
Default hereunder, and in either case which, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or
upon the happening of any event (including an event which would constitute a
Change of Control), cannot mature and is not mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, and is not redeemable, or required to be
repurchased, at the sole option of the holder thereof (including, without
limitation, upon the occurrence of an event which would constitute a Change of
Control), in whole or in part, on or prior to the first anniversary of the
Maturity Date.
"Quarterly Payment Date" shall mean the last Business Day of each of
March, June, September and December, occurring after the Restatement Effective
Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the same
may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and interest
of such Person in and to land, improvements and fixtures, including Leaseholds.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .22, .23, .25, .27, or .28 of PBGC
Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding Commitments (or after the termination thereof, outstanding Revolving
Loans and Percentage of Swingline Loans and Letter of Credit Outstandings)
represent greater than 50% of the Total Commitment less the Revolving Loan
Commitments of all Defaulting Lenders (or after the termination thereof, the sum
of the then total outstanding Revolving Loans of Non-Defaulting Lenders and the
aggregate Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).
"Restatement Effective Date" shall have the meaning provided in Section
13.10.
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"S&P" shall mean Standard & Poor's Rating Services.
"Sale and Leaseback Transaction" shall mean any arrangement, directly or
indirectly, whereby a seller or transferor shall sell or otherwise transfer any
real or personal property and then or thereafter lease, or repurchase under an
extended purchase contract, conditional sales or other title retention
agreement, the same or similar property.
"Scheduled Existing Indebtedness" shall having the meaning provided in
Section 7.19.
"SEC" shall have the meaning provided in Section 8.01(f).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Significant Acquisition" shall mean any Acquisition by the Borrower or
any of its Subsidiaries involving an Aggregate Consideration of $200,000,000 or
more.
"Specified Default" shall mean (x) any Default under Section 10.01 or
10.05 or (y) any Default under Section 10.03(ii) occurring as a result of the
failure by the Borrower to deliver the financial statements within the time
period required by Sections 8.01(a) or (b) (together with, in each case, the
accompanying certification required by Section 8.01(c)).
"Start Date" shall have the meaning assigned that term in the definitions
of "Applicable Facility Fee Percentage" and "Applicable Margin" contained
herein.
"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section 5.06.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% Equity Interest at the time.
"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic Subsidiary of
the Borrower.
"Swingline Expiry Date" shall mean the date which is five Business Days
prior to the Maturity Date.
"Swingline Lender" shall mean DBAG.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first paragraph
of this Agreement, and shall include any successor thereto.
"Tax Benefit" shall have the meaning set forth in Section 4.04(c).
"Taxes" shall mean all taxes, assessments, charges, duties, fees, levies
or other governmental charges, including, without limitation, all Federal,
state, local, foreign and other income, franchise, profits, capital gains,
capital stock, transfer, sales, use, occupation, property, excise, severance,
windfall profits, stamp, license, payroll, withholding and other taxes,
assessments, charges, duties, fees, levies or other governmental charges of any
kind whatsoever
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(whether payable directly or by withholding and whether or not requiring the
filing of a Return), all estimated taxes, deficiency assessments, additions to
tax, penalties and interest and shall include any liability for such amounts as
a result either of being a member of a combined, consolidated, unitary or
affiliated group or of a contractual obligation to indemnify any person or other
entity.
"Test Period" shall mean each period of four consecutive fiscal quarters
then last ended, in each case taken as one accounting period.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Lenders (including, without limitation, any Incremental Revolving
Loan Commitment added to the Total Commitment as contemplated in Section 1.14).
"Total Unutilized Commitment" shall mean, at any time, an amount equal to
the remainder of (i) the Total Commitment then in effect, less (ii) the sum of
the aggregate principal amount of Revolving Loans and Swingline Loans
outstanding plus the then aggregate amount of Letter of Credit Outstandings.
"Transaction" shall mean, collectively, (i) the repayment of all
outstanding loans and all other obligations under the Existing Credit Agreement,
(ii) the entering into of the Credit Documents on the Restatement Effective Date
and (iii) the payment of all fees and expenses in connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to the interest
option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of the accumulated benefits under the Plan as
of the close of its most recent plan year each exceeds the fair market value of
the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawing" shall have the meaning provided for in Section 2.05(a).
"Unutilized Commitment" with respect to any Lender, at any time, shall
mean such Lender's Commitment at such time less the sum of (i) the aggregate
outstanding principal amount of Revolving Loans made by such Lender and (ii)
such Lender's Percentage of the Letter of Credit Outstandings at such time.
"VIE" shall mean SNL Distribution Inc., an Alabama corporation, and its
successors and assigns to the extent each shall constitute a variable interest
entity as contemplated in FIN 46.
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"Wholly-Owned Domestic Subsidiary" of any Person shall mean each
Wholly-Owned Subsidiary of such Person which is also a Domestic Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% Equity Interest at such time.
"Withholding Taxes" shall have the meaning provided in Section 4.04(a).
SECTION 12. The Agents.
12.01 Appointment. The Lenders hereby designate (i) DBAG as Administrative
Agent, (ii) DBSI as Lead Arranger, (iii) SunTrust Bank as Syndication Agent and
(iv) each of Bank of America, N.A., Harris Trust and Savings Bank and
Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "RaboBank International",
New York Branch, as Co-Documentation Agents, in each case to act as specified
herein and in the other Credit Documents. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, each Agent to take such action on its behalf
under the provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of such Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. Each Agent may perform any of
its duties hereunder by or through its respective officers, directors, agents,
employees or affiliates.
12.02 Nature of Duties. No Agent shall have any duties or responsibilities
except those expressly set forth in this Agreement and in the other Credit
Documents. No Agent nor any of its officers, directors, agents, employees or
affiliates shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of each Agent shall be mechanical and
administrative in nature; no Agent shall have by reason of this Agreement or any
other Credit Document a fiduciary relationship in respect of any Lender or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
any Agent any obligations in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Agents. Independently and without reliance
upon any Agent, each Lender and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Borrower and its
Subsidiaries in connection with the making and the continuance of the Loans and
the taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Borrower and its Subsidiaries and,
except as expressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing
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basis, to provide any Lender or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. No Agent nor any of its
affiliates or any of its officers, directors, agents, or employees shall be
responsible to any Lender or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of the Borrower and its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Lenders with respect to any act or action
(including any failure to act) in connection with this Agreement or any other
Credit Document, such Agent shall be entitled to refrain from such act or taking
such action unless and until such Agent shall have received instructions from
the Required Lenders; and such Agent shall not incur liability to any Person by
reason of so refraining. Without limiting the foregoing, no Lender or holder of
any Note shall have any right of action whatsoever against any Agent as a result
of such Agent acting or refraining from acting hereunder or under any other
Credit Document in accordance with the instructions of the Required Lenders.
12.05 Reliance. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
such Agent believed to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by such Agent
(which may be counsel for the Credit Parties).
12.06 Indemnification. To the extent any Agent is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify such
Agent, in proportion to their respective "percentages" as used in determining
the Required Lenders (determined as if there were no Defaulting Lenders), for
and against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by such Agent in performing its duties hereunder or under any other Credit
Document, in any way relating to or arising out of this Agreement or any other
Credit Document; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
12.07 The Agent in its Individual Capacity. With respect to its obligation
to make Loans and participate in Letters of Credit under this Agreement (if
any), each Agent shall have the rights and powers specified herein for a
"Lender" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Lenders,"
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"Required Lenders," "holders of Notes" or any similar terms shall, unless the
context clearly otherwise indicates, include such Agent in its individual
capacity. Each Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with any Credit Party or
any Affiliate of any Credit Party as if they were not performing the duties
specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and
otherwise without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Agents. (a) The Administrative Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Lenders. Such resignation shall take effect upon the appointment
of a successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall,
with the consent of the Borrower (which consent shall not be unreasonably
withheld or delayed and shall not be required at any time when an Event of
Default exists), appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed and shall not be required at any time when an Event of Default exists),
shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Lenders shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
(e) Each of the other Agents may resign from the performance of all
of their respective functions and duties hereunder and/or under the other Credit
Documents at any time by giving five Business Day's prior written notice to the
Administrative Agent. Such resignation shall take effect at the end of such five
Business Day period after the respective notice is given to the Administrative
Agent.
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(f) Upon a resignation of any Agent pursuant to this Section 12.09,
such Agent shall remain indemnified to the extent provided in this Agreement and
the other Credit Documents and the provisions of this Section 12 shall continue
in effect for the benefit of such Agent for all of its actions and inactions
while serving as an Agent.
12.10 Delivery of Information. The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Borrower, any Subsidiary of the Borrower, the
Required Lenders, any Lender or any other Person under or in connection with
this Agreement or any other Credit Document except (i) as specifically provided
in this Agreement or any other Credit Document, (ii) the information provided to
the Administrative Agent by the Borrower under Section 8.01 and (iii) as
specifically requested from time to time in writing by any Lender with respect
to a specific document, instrument, notice or other written communication
received by and in the possession of the Administrative Agent at the time of
receipt of such request and then only in accordance with such specific request.
12.11 The Syndication Agent, the Co-Documentation Agents and the Lead
Arranger. Notwithstanding any other provision of this Agreement or any provision
of any other Credit Document, the Syndication Agent, each Co-Documentation
Agent, and the Lead Arranger are named as such for recognition purposes only,
and in their respective capacities as such shall have no powers, duties,
responsibilities or liabilities with respect to this Agreement or the other
Credit Documents or the transactions contemplated hereby and thereby; it being
understood and agreed that (x) the Syndication Agent, each Co-Documentation
Agent and the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of "Agents" as provided for under Sections 12.06
and 13.01 and (y) the Agents shall have all approval rights specifically
provided in this Agreement. Without limitation of the foregoing, none of the
Syndication Agent, the Co-Documentation Agents or the Lead Arranger shall,
solely by reason of this Agreement or any other Credit Documents, have any
fiduciary relationship in respect of any Lender or any other Person.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of (x) the Administrative Agent and the Lead
Arranger (including, without limitation, the reasonable fees and disbursements
of White & Case LLP) in connection with the preparation, execution and delivery
of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein and any amendment, waiver or consent
relating hereto or thereto, (y) each of the Administrative Agent and the Lead
Arranger in connection with its syndication efforts with respect to this
Agreement and (z) each of the Administrative Agent and the Lead Arranger and,
following and during the continuation of an Event of Default, each of the
Lenders in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and
therein (including, without limitation, the reasonable fees and disbursements of
counsel and consultants for the Administrative Agent and the Lead Arranger and,
following and during the continuation of an Event of Default, for each of the
Lenders) in each case promptly following receipt of a reasonably detailed
invoice therefor; (ii) pay and hold each of the Lenders harmless from and
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against any and all present and future stamp, documentary, transfer, sales and
use, value added, excise and other similar taxes with respect to the foregoing
matters and hold each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; and (iii)
indemnify each Agent and each Lender (including in its capacity as an Issuing
Lender), and each of their respective officers, directors, employees,
representatives, affiliates, advisors and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
any Agent or any Lender is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of any
Real Property owned or at any time operated by the Borrower or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of
Hazardous Materials at any location, whether or not owned or operated by the
Borrower or any of its Subsidiaries, the non-compliance of any Real Property
with foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property, or
any Environmental Claim asserted against the Borrower, any of its Subsidiaries,
or any Real Property owned or at any time operated by the Borrower or any of its
Subsidiaries, including, in each case, without limitation, the reasonable fees
and disbursements of counsel and other consultants incurred in connection with
any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). To the extent that the undertaking to indemnify, pay
or hold harmless any Agent or any Lender set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Lender wherever located) to or for
the credit or the account of any Credit Party against and on account of the
Obligations and liabilities of all Credit Parties to such Lender under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
Section 13.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Lender shall have made any demand
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hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrower, at the Borrower's
address specified opposite its signature below; if to any other Credit Party, at
such Credit Party's address set forth in the Subsidiaries Guaranty; if to any
Lender, at its address specified on Schedule II below; and if to the
Administrative Agent, at the Notice Office; or, as to any Credit Party or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties hereto and, as to each Lender, at such
other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or overnight courier, as the case may be, or
sent by telex or telecopier, except that notices and communications to the
Administrative Agent and the Borrower shall not be effective until received by
the Administrative Agent or the Borrower, as the case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that the Borrower may not
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of all of the
Lenders and, provided further, that although any Lender may transfer, assign or
grant participations in its rights hereunder, such Lender shall remain a
"Lender" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitment hereunder except as provided in Section 13.04(b)) and
the transferee, assignee or participant, as the case may be, shall not
constitute a "Lender" hereunder and, provided further, that no Lender shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity of any Revolving Loan or Note or extend the expiry
date of any Letter of Credit beyond the Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates)
or reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that waivers or modifications of conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof) or (ii) consent to the assignment or transfer by the Borrower of any of
their rights and obligations under this Agreement. In the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender had not
sold such participation.
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(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may (x) assign all or a portion of its
Commitment and related outstanding Obligations hereunder (or, if the Commitments
have terminated, its outstanding Obligations) to (i)(A) its parent company
and/or any affiliate of such Lender which is at least 50% owned by such Lender
or its parent company or (B) to one or more other Lenders or any affiliate of
such Lender which is at least 50% owned by such other Lender or its parent
company or (ii) in the case of any Lender that is a fund that invests in bank
loans, any other fund that invests in bank loans and is managed by the same
investment advisor of any Lender or by an Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least $5,000,000
in the aggregate for the assigning Lender or assigning Lenders, of such
Commitments and related outstanding Obligations hereunder (or, if the
Commitments have terminated, its outstanding Obligations) to one or more
Eligible Transferees (treating any fund that invests in bank loans and any other
fund that invests in bank loans and is managed or advised by the same investment
advisor of such fund or by an Affiliate of such investment advisor as a single
Eligible Transferee), each of which assignees shall become a party to this
Agreement as a Lender by execution of an Assignment and Assumption Agreement,
provided that (i) at such time Schedule I shall be deemed modified to reflect
the Commitment of such new Lender and of the existing Lenders, (ii) at the
request of the assignee Lender, and upon surrender of the relevant Revolving
Notes or the provision of a customary lost note indemnification agreement from
the assignor or assignee Lender, as the case may be, new Revolving Notes will be
issued, at the Borrowers' expense, to such new Lender and to the assigning
Lender, such new Revolving Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments, (iii) the consent of the Administrative Agent, each
Issuing Lender and, at any time when no Default or Event of Default is in
existence, the Borrower shall be required in connection with any such assignment
pursuant to clause (y) above (each of which consents shall not to be
unreasonably withheld or delayed), and (iv) the Administrative Agent shall
receive at the time of each such assignment, from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500 and, provided
further, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Register pursuant to Section 13.17 hereof. To
the extent of any assignment pursuant to this Section 13.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments and related assigned Obligations (it being understood that,
in the event that an assigning Lender assigns all of its Commitments and related
outstanding Obligations hereunder, the indemnification provisions under this
Agreement (including, without limitation, Section 1.10, 1.11, 2.06, 4.04, 13.01
and 13.06) shall, in any event, survive as to such assigning Lender). At the
time of each assignment pursuant to this Section 13.04(b) to a Person which is
not already a Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a Lender's Commitments
and related outstanding Obligations pursuant to Section 1.13 or this Section
13.04(b) would, at the time of such assignment, result in increased costs under
Section 1.10, 1.11, 2.06 or 4.04 greater than those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such
72
greater increased costs (although the Borrower shall be obligated to pay any
other increased costs of the type described above resulting from changes after
the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, with prior
notification to the Administrative Agent (but without the consent of either the
Borrower or the Administrative Agent), any Lender which is a fund may pledge all
or any portion of its Notes or Loans to its trustee or to a collateral agent
providing credit or credit support to such Lender in support of its obligations
to its trustee or such collateral agent, as the case may be. No pledge pursuant
to this clause (c) shall release the transferor Lender from any of its
obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Agent or any Lender or any holder of any Note in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between the Borrower or any other Credit Party and any Agent, any
Issuing Lender or any Lender or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which any Agent, any Issuing Lender or any Lender or
the holder of any Note would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of any Agent, any Issuing Lender or any Lender or the holder of any Note
to any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Facility Fees or other Fees, of a sum which with
respect to the related sum or sums received by other Lenders is in a greater
proportion than the total of such Obligation then owed and due to such Lender
bears to the total of such Obligation then owed and due to all of the Lenders
immediately prior to such receipt, then such Lender receiving such excess
payment shall purchase for cash without recourse or warranty from the other
Lenders an interest in the Obligations of the Borrower to such Lenders in such
amount as shall result in a proportional participation by all the Lenders in
such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase
73
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders), provided that except as otherwise specifically provided herein, all
computations of the Applicable Facility Fee Percentage and the Applicable
Margin, and all computations and all definitions (including accounting terms)
used in determining compliance with Sections 9.07 and 9.08, shall utilize
accounting principles and policies in conformity with those used to prepare the
historical financial statements referred to in Section 7.05(a).
(b) All computations of interest on Eurodollar Loans and
computations of Fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or Fees are payable. All
computations of interest on Base Rate Loans shall be made on the basis of a year
of 365/366 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE
COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURISDICTION OVER IT. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE
BELOW, SUCH SERVICE TO
74
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Restatement Effective Date") on which (i) the Borrower, each Lender and
each Agent shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile) the same
to the Administrative Agent at the Notice Office or, in the case of the Lenders,
shall have given the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that same has been
signed and mailed to it and (ii) the conditions contained in Section 5 are met
to the reasonable satisfaction of the Administrative Agent and the Required
Lenders. Unless the Administrative Agent has received actual notice from the
Required Lenders that the conditions contained in Section 5 have not been met to
its reasonable satisfaction, upon the satisfaction of the condition described in
clause (i) of the immediately preceding sentence and upon the Administrative
Agent's good faith determination that the conditions described in clause (ii) of
the immediately preceding sentence have been met, then the Restatement Effective
Date shall have been deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the Restatement Effective Date shall not release the
Borrower from any liability for failure to satisfy one or more of the applicable
conditions contained in Section 5). The Administrative Agent will give the
Borrower and each Lender prompt written notice of the occurrence of the
Restatement Effective Date.
75
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note, or extend the
stated maturity of, or any reimbursement obligation under, any Letter of Credit
beyond the Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 13.07(a) shall not
constitute a reduction in the rate of interest or Fees for the purposes of this
clause (i)), or reduce the principal amount thereof, or reduce any reimbursement
obligations under any Letter of Credit, (ii) amend, modify or waive any
provision of this Section 13.12 (except for technical amendments with respect to
additional extensions of credit under this Agreement of the type which afford
the protections to such additional extensions of credit provided to the
Commitments on the Restatement Effective Date), (iii) reduce the percentage
specified in the definition of Required Lenders (it being understood and agreed
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Commitments are included on the
Restatement Effective Date) or (iv) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (1) in the
case of any such change, waiver, discharge or termination to or of any
Incremental Revolving Loan Commitment Agreement, without the consent of each
Lender (other than a Defaulting Lender) party thereto, amend, modify, waive or
terminate such Incremental Revolving Loan Commitment Agreement (it being
understood and agreed that any reduction to the Commitment of any Lender that is
also party to any Incremental Revolving Loan Commitment Agreement shall not
require the consent of such Lender by operation of this clause (1) to the extent
such reduction is otherwise permitted under this Agreement), (2) increase the
Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood and agreed that waivers or
modifications of conditions precedent, covenants (including, without limitation,
by means of modifications to the financial definitions or modifications in the
method of calculation of any financial covenants), Defaults or Events of Default
or of a mandatory reduction in the Total Commitments shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), (3) without the consent of the respective Issuing
Lender or Issuing Lenders, amend, modify or waive any provision of Section 2
with respect to Letters of Credit issued by it or alter its rights or
obligations with respect to Letters of Credit, (4) without the consent of the
Swingline Lender, amend, modify or waive any provision of Sections 1.01(b) and
(c) or alter its rights and obligations with respect to Swingline Loans or (5)
without the consent of each Agent affected thereby, amend, modify or waive any
provision of Section 12 as same applies to such Agent or any other provision as
same relates to the rights or obligations of such Agent.
76
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (iv), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the time
of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Commitment in accordance with Sections 3.02(b) and/or 4.01(b), provided
that, unless the Commitments are terminated, and Loans repaid, pursuant to the
preceding clause (B) are immediately replaced in full at such time through the
addition of new Lenders or the increase of the Commitments and/or outstanding
Loans of existing Lenders (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B) the Required
Lenders (determined before giving effect to the proposed action) shall
specifically consent thereto, provided further, that in any event the Borrower
shall not have the right to replace a Lender, terminate its Commitment or repay
its Loans solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clauses
(a) and (b) above of this Section 13.12, the Borrower, the Administrative Agent
and each Incremental RL Lender may, in accordance with the provisions of
Sections 1.14, enter into an Incremental Revolving Loan Commitment Agreement,
provided that after the execution, delivery and effectiveness of such
Incremental Revolving Loan Commitment Agreement, the Incremental RL Lender party
thereto, and any Incremental Revolving Loan Commitment created pursuant thereto,
shall be treated for all purposes hereunder as a Lender and as such Lender's
Commitment, respectively.
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06, 13.01 and 13.06 shall,
subject to Section 13.15 (to the extent applicable) survive the execution,
delivery and termination of this Agreement and the Notes and the making and
repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at,
to or for the account of any office, Subsidiary or Affiliate of such Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from
those being charged by the respective Lender prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 1.10, 1.11, 2.06 or 4.04 of this Agreement,
unless a Lender gives notice to the Borrower that they are obligated to pay an
amount under any such Section within 180 days after the later of (x) the date
the Lender incurs the respective increased costs, Taxes, loss,
77
expense or liability, reduction in amounts received or receivable or reduction
in return on capital or (y) the date such Lender has actual knowledge of its
incurrence of the respective increased costs, Taxes, loss, expense or liability,
reductions in amounts received or receivable or reduction in return on capital,
then such Lender shall only be entitled to be compensated for such amount by the
Borrower pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the case may be,
to the extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs 180 days prior to such Lender giving
notice to the Borrowers that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.06 or 4.04, as the case may be. This
Section 13.15 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.06 and 4.04.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of this
Section 13.16, each Lender agrees that it will not disclose without the prior
consent of the Borrower (other than to its officers, directors, employees,
auditors, agents, advisors or counsel or to another Lender if the Lender or such
Lender's holding or parent company in its sole discretion determines that any
such party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as such
Lender) any information with respect to the Borrower or any of its Subsidiaries
which is now or in the future furnished pursuant to this Agreement or any other
Credit Document and which is designated by the Borrower to the Lenders in
writing as confidential, provided that any Lender may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to such
Lender, (e) to any Agent, and (f) to any prospective or actual transferee or
participant in connection with any contemplated transfer or participation of any
of the Notes or Commitments or any interest therein by such Lender, provided
that such prospective transferee agrees to be subject to the provisions
contained in this Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its Affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its
Subsidiaries), provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender.
13.17 Register. The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for purposes of this Section 13.17, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lender. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error. Failure to make any such recordation, or any
error in such recordation shall not affect the Borrower's obligations in respect
of such Loans. With respect to any Lender, the transfer of the Commitments of
such Lender and the rights to the principal of, and interest on, any Revolving
Loan made pursuant to such Commitments shall not be effective
78
until such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Revolving Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitments and Revolving Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Revolving Loans shall be recorded by the Administrative Agent on the Register
only upon the acceptance by the Administrative Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 13.04(b).
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Revolving Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Revolving Loan, and thereupon one or more new Revolving Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender. The registration of any provision of
Incremental Revolving Loan Commitments pursuant to Sections 1.14 shall be
recorded by the Administrative Agent on the Register only upon the acceptance of
the Administrative Agent of a properly executed and delivered Incremental
Revolving Loan Commitment Agreement. Coincident with the delivery of such
Incremental Revolving Loan Commitment Agreement for acceptance and registration
of the provision of an Incremental Revolving Loan Commitment, or as soon
thereafter as practicable, new Revolving Notes, as the case may be, shall be
issued to the respective Incremental RL Lender at the request of such
Incremental RL Lender. The Borrower agrees to indemnify the Administrative Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17.
13.18 USA Patriot Act Notice. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub.:
107-56 (signed into law October 26, 2001)) (the "Patriot Act"), it is required
to obtain, verify, and record information that identifies the Borrower, which
information includes the name of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Patriot Act,
and the Borrower agrees to provide such information from time to time to any
Lender.
* * *
79
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
1919 Flowers Circle FLOWERS FOODS, INC.
Thomasville, GA 31757
Telephone: (229) 226-9110
Facsimile: (229) 225-3808 By: /s/ Jimmy M. Woodward
Attention: Secretary and General Counsel --------------------------------
Name: Jimmy M. Woodward
Title: Senior Vice President and
Chief Financial Officer
DEUTSCHE BANK AG, NEW YORK BRANCH,
Individually and
as Administrative Agent
By: /s/ Frederick W. Laird
--------------------------------
Name: Frederick W. Laird
Title: Managing Director
By: /s/ Belinda Wheeler
--------------------------------
Name: Belinda Wheeler
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Sole Lead Arranger and Book
Runner
By: /s/ Robert A. Danziger
--------------------------------
Name: Robert A. Danziger
Title: Managing Director
By: /s/Daniel D. Toscano
--------------------------------
Name: Daniel D. Toscano
Title: Managing Director
80
BANK OF AMERICA, N.A., Individually
and as Co-Documentation Agent
By: /s/ David L. Catherall
--------------------------------
Name: David L. Catherall
Title: Vice President
HARRIS TRUST AND SAVINGS BANK,
Individually and as
Co-Documentation Agent
By: /s/ Erica Kuhlmann
--------------------------------
Name: Erica Kulhmann
Title: Managing Director
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEN BANK, B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
Individually and as Co-
Documentation Agent
By: /s/ Stephanie DeBoer
--------------------------------
Name: Stephanie DeBoer
Title: Executive Director
By: /s/ Brett Delfino
--------------------------------
Name: Brett Delfino
Title: Executive Director
81
SUNTRUST BANK, Individually and as
Syndication Agent
By: /s/ Douglas O'Bryan
--------------------------------
Name: Douglas O'Bryan
Title: Vice President
82
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
AGFIRST FARM CREDIT BANK
By: /s/ Steven J. O'Shea
--------------------------------
Name: Steven J. O'Shea
Title: Vice President
83
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
CALYON NEW YORK BRANCH
By: /s/ Lee E. Greve
--------------------------------
Name: Lee E. Greve
Title: Managing Director
By: /s/ Julie Kanak
--------------------------------
Name: Julie Kanak
Title: Director
84
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION: COBANK, ACB
By: /s/ Lori L. O'Flaherty
--------------------------------
Name: Lori L. O'Flaherty
Title: Senior Vice President
85
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
FARM CREDIT SERVICES OF AMERICA,
PCA:
By: /s/ Bruce P. Rouse
--------------------------------
Name: Bruce P. Rouse
Title: Vice President
86
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
GreenStone Farm Credit Services,
ACA/FLCA
By: /s/ Alfred S. Compton, Jr.
-------------------------------
Name: Alfred S. Compton, Jr.
Title: VP/Sr. Lending Officer
87
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION: REGIONS BANK
By: /s/ James W. Newport
--------------------------------
Name: James W. Newport
Title: Senior Vice President
88
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION: U.S. AgBank,
FCB
By: /s/ Greg Somerhalder
--------------------------------
Name: Greg Somerhalder
Title: Vice President
89
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION: Comerica Bank
By: /s/ Richard C. Hampson
--------------------------------
Name: Richard C. Hampson
Title: Vice President
90
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
THE NORTHERN TRUST COMPANY:
By: /s/ John C. Canty
--------------------------------
Name: John C. Canty
Title: Vice President
91
SIGNATURE PAGE TO THE CREDIT
AGREEMENT, DATED AS OF OCTOBER 29,
2004, AMONG FLOWERS FOODS, INC., A
GEORGIA CORPORATION, THE VARIOUS
LENDERS PARTY THERETO AND DEUTSCHE
BANK AG, NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION:
BANK HAPOALIM, B.M.
By: /s/ Marc Bosc
--------------------------------
Name: Marc Bosc
Title: Vice President
By: /s/ Lenroy Hackett
--------------------------------
Name: Lenroy Hackett
Title: First Vice President
92
SCHEDULE I
COMMITMENTS
Lender Commitment
- ------ ----------
Deutsche Bank AG, New York Branch $ 12,250,000
Bank of America, N.A. $ 11,250,000
Harris Trust and Savings Bank $ 11,250,000
Cooperatieve Centrale Raiffeisen- Boerenleenbank B.A.,
"RaboBank International", New York Branch $ 11,250,000
SunTrust Bank $ 11,250,000
AgFirst Farm Credit Bank $ 10,250,000
Calyon New York Branch $ 10,250,000
CoBank, ACB $ 10,250,000
Farm Credit Services of America, PCA $ 10,250,000
GreenStone Farm Credit Services, FLCA/ACA $ 10,250,000
Regions Bank $ 10,250,000
U.S. AgBank, FCB $ 10,250,000
Comerica Bank $ 8,000,000
Northern Trust Company $ 7,000,000
Bank Hapoalim B.M. $ 6,000,000
Total $150,000,000
============
SCHEDULE II
LENDER ADDRESSES
Lender Address
------ -------
Deutsche Bank AG, New York Branch 60 Wall Street
New York, NY 10005
Telephone: (212) 250-8372
Facsimile: (212) 797-4344
Attention: Belinda Wheeler
E-mail: belinda.wheeler@db.com
Bank of America, N.A. 231 S. LaSalle Street, 10th Floor
Chicago, IL 60697
Telephone: (312) 828-7169
Facsimile: (415) 503-5026
Attention: David L. Catherall
E-mail: david.l.catherall@bankofamerica.com
Harris Trust and Savings Bank 111 W. Monroe Street- 20(th) Floor West
Chicago, IL 60603
Telephone: (312) 461-2216
Facsimile: (312) 765-8095
Attention: Tara B. Cuprisin
E-mail: tara.cuprisin@harrisnesbitt.com
Cooperatieve Centrale Raiffeisen- Boerenleenbank B.A., 1201 W. Peachtree Street- Suite 3450
"RaboBank International", New York Branch Atlanta, GA 30309
Telephone: (404) 877-9114
Facsimile: (404) 877-9150
Attention: Melissa Ayala
E-mail: melissa.ayala@rabobank.com
SunTrust Bank 303 Peachtree Street- N.E., 3(rd) Floor
Atlanta, GA 30308
Telephone: (404) 724-3163
Facsimile: (404) 230-5305
Attention: Doug O'Bryan
E-mail: douglas.o'bryan@suntrust.com
AgFirst Farm Credit Bank 1401 Hampton Street
Columbia, SC 29201
Telephone: (803) 753-2221
Facsimile: (803) 254-4219
Attention: John W. Burnside, Jr.
E-mail: jburnside@agfirst.com
Lender Address
------ -------
Caylon New York Branch 227 W. Monroe Street- Suite 3800
Chicago, IL 60606
Telephone: (312) 220-7302
Facsimile: (312) 641-0527
Attention: Julie Kanak
E-mail: julie.kanak@clamericas.com
CoBank, ACB 5500 S. Quebec Street
Greenwood Village, CO 80111
Telephone: (303) 740-4131
Facsimile: (303) 740-6492
Attention: Sushim R. Shah
E-mail: sshah@cobank.com
Farm Credit Services of America, PCA 5015 S. 118(th) Street
Omaha, NE 68137
Telephone: (402) 348-3262
Facsimile: (402) 348-3324
Attention: Jennifer Witt
E-mail: wittj@fcsamerica.com
GreenStone Farm Credit Services, FLCA/ACA 1760 Abbey Road- Suite 200
East Lansing, MI 48823
Telephone: (517) 318-4128
Facsimile: (517) 318-1240
Attention: Al Compton
E-mail: acompto@greenstonefcs.com
Regions Bank 333 W. Broad Avenue
Albany, GA 30701
Telephone: (229) 432-8460
Facsimile: (229) 432-8004
Attention: James W. Newport
E-mail: jim.newport@regions.com
U.S. AgBank, FCB 245 N. Waco 67202
P.O. Box 2940
Wichita, KS 67201-2940
Telephone: (316) 266-5283
Facsimile: (316) 291-5011
Attention: Greg Somerhalder
E-mail: greg.somerhalder@usagbank.com
2
Lender Address
------ -------
Comerica Bank P.O. Box 75000
Detroit, MI 48275-3279
Telephone: (313) 222-3463
Facsimile: (313) 222-3330
Attention: Richard C. Hampson
E-mail: richard_c_hampson@comerica.com
Northern Trust Company 50 South LaSalle
Chicago, IL 60675
Telephone: (312) 444-7729
Facsimile: (312) 444-7028
Attention: John C. Canty
E-mail: jc92@ntrs.com
Bank Hapoalim B.M. 1177 Avenue of the Americas
New York, NY 10036
Telephone: (212) 782-2181
Facsimile: (212) 782-2382
Attention: Marc Bosc
E-mail: mbosc@hapoalim.com
3
SCHEDULE III
EXISTING LETTERS OF CREDIT
FLOWERS FOODS, INC.
SCHEDULE III
EXISTING LETTERS OF CREDIT
AS OF 10/29/2004
ISSUING LENDER APPLICANT BENEFICIARY EXPIRY DATE STATED AMOUNT
- --------------------------------- ------------------- ------------------------------------- ----------- --------------
DEUTSCHE BANK AG, NEW YORK BRANCH Flowers Foods, Inc. Pacific Employers Ins. Co., and/or 3/26/2005 $ 4,249,379.00
Indemnity Insurance Company of North
America and/or Ace American Insurance
Company
DEUTSCHE BANK AG, NEW YORK BRANCH Flowers Foods, Inc. Travelers 3/22/2005 $ 2,585,846.00
---------------
TOTAL LETTERS OF CREDIT $ 6,835,225.00
==============
SCHEDULE IV
SUBSIDIARIES
Wholly-
Owned
Owner of 100% of all stock or Domestic
membership interests, as applicable Subsidiary
- ---------------------------------------------- -------------------------------------- -----------
Bailey Street Bakery, LLC Flowers Baking Co. of Opelika, LLC YES
Flowers Bakery of Montgomery, LLC Flowers Foods Specialty Group, LLC YES
Flowers Baking Co. of Birmingham, LLC(1) Flowers Foods Specialty Group, LLC YES
Flowers Baking Co. of Opelika, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Tuscaloosa, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Batesville, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Pine Bluff, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Texarkana, LLC Flowers Foods Bakeries Group, LLC YES
Shipley Baking Company, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Bakeries Brands, Inc. Flowers Foods Bakeries Group, LLC YES
Flowers Finance, LLC Flowers Foods, Inc. YES
Flowers Baking Co. of Bradenton, LLC Flowers Baking Co. of Florida, LLC YES
Flowers Baking Co. of Florida, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Jacksonville, LLC Flowers Baking Co. of Florida, LLC YES
Flowers Baking Co. of Miami, LLC Flowers Baking Co. of Florida, LLC YES
Flowers Bakery of Atlanta, LLC Flowers Foods Specialty Group, LLC YES
Flowers Bakery of Suwanee, LLC Flowers Bakery of Atlanta, LLC YES
Flowers Baking Co. of McDonough, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Thomasville, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Tucker, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Tyler, LLC Flowers Baking Co. of Texas, LLC YES
Flowers Baking Co. of Villa Rica, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Foil Company, LLC Flowers Frozen Desserts, LLC YES
Flowers Foods Bakeries Group, LLC Flowers Foods, Inc. YES
Flowers Foods Specialty Group, LLC Flowers Foods, Inc. YES
Flowers Foods Specialty Sales, LLC Flowers Foods Specialty Group, LLC YES
Flowers Frozen Desserts of Pennsylvania, LLC Flowers Frozen Desserts, LLC YES
Flowers Frozen Desserts Sales Group, LLC Flowers Frozen Desserts, LLC YES
Flowers Frozen Desserts, LLC Flowers Foods Specialty Group, LLC YES
- ----------
(1) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
corporation, none of which have yet been changed to reflect the new name.
Flowers Frozen Distributors, LLC Flowers Frozen Desserts, LLC YES
Table Pride, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Bakery of London, LLC Flowers Foods Specialty Group, LLC YES
Flowers Baking Co. of Baton Rouge, LLC Flowers Baking Co. of New Orleans, LLC YES
Flowers Baking Co. of Lafayette, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of New Orleans, LLC Flowers Baking Co. of Lafayette, LLC YES
El Paso Baking Company de Mexico, S.A. de C.V. Flowers Baking Co. of El Paso, LLC NO
Flowers Baking Co. of Jamestown, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Frozen Desserts of Pembroke, LLC Flowers Frozen Desserts, LLC YES
Franklin Baking Company, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Frozen Desserts of Stilwell, LLC Flowers Frozen Desserts, LLC YES
Flowers Frozen Desserts of Spartanburg, LLC Flowers Frozen Desserts, LLC YES
Flowers Specialty Brands, Inc. Flowers Frozen Desserts, LLC YES
Flowers Bakery Distributors, Inc. Flowers Foods Specialty Group, LLC YES
Flowers Bakery of Cleveland, LLC Flowers Foods Specialty Group, LLC YES
Flowers Bakery of Crossville, LLC Flowers Foods Specialty Group, LLC YES
Flowers Baking Co. of Memphis, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Morristown, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Nashville, LLC Flowers Foods Bakeries Group, LLC YES
West Tennessee Baking Co., LLC Flowers Foods Bakeries Group, LLC YES
Austin Baking Co., LLC Flowers Baking Co. of Texas, LLC YES
Corpus Christi Baking Co., LLC Flowers Baking Co. of Texas, LLC YES
Flowers Baking Co. of Denton, LLC Flowers Baking Co. of Texas, LLC YES
Flowers Baking Co. of El Paso, LLC Flowers Baking Co. of Texas, LLC YES
Flowers Baking Co. of Houston, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of San Antonio, LLC Flowers Baking Co. of Tyler, LLC YES
Flowers Baking Co. of Texas, LLC Flowers Foods Bakeries Group, LLC YES
Leeland Baking Co., LLC Flowers Baking Co. of Texas, LLC YES
San Antonio Baking Co., LLC Flowers Baking Co. of Texas, LLC YES
Flowers Baking Co. of Lynchburg, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of Norfolk, LLC Flowers Foods Bakeries Group, LLC YES
Flowers Baking Co. of West Virginia, LLC Flowers Foods Bakeries Group, LLC YES
Storck Baking Company, LLC Flowers Foods Bakeries Group, LLC YES
The Donut House, LLC Flowers Baking Co. of West Virginia, YES
LLC
2
SCHEDULE V
EXISTING LIENS
FLOWERS FOODS, INC.
SCHEDULE V
EXISTING LIENS
AS OF 10/29/2004
BALANCE SECURED AS
OF THE RESTATEMENT
DEBTOR SECURED PARTY DESCRIPTION OF LIEN EFFECTIVE DATE
- ------ ------------- ------------------- ------------------
None.
------------------
TOTAL EXISTING LIENS $ -
==================
SCHEDULE VI
SCHEDULED EXISTING INDEBTEDNESS
FLOWERS FOODS, INC.
SCHEDULE VI
SCHEDULED EXISTING INDEBTEDNESS > $2,000,000
AS OF 10/29/2004
BORROWER DESCRIPTION BALANCE
- -------- ----------- -------
None.
-------
TOTAL SCHEDULED EXISTING INDEBTEDNESS > $2,000,000 $ -
=======
EXHIBIT A-1
NOTICE OF BORROWING
[Date]
Deutsche Bank AG, New York Branch,
as Administrative Agent for the Lenders party to
the Credit Agreement referred to below
90 Hudson Street
Fifth Floor
Jersey City, New Jersey 07302
Attention: Nelson Lugaro
Ladies and Gentlemen:
The undersigned, Flowers Foods, Inc. (the "Borrower"), refers to the
Credit Agreement, dated as of October 24, 2003 and amended and restated as of
October 29, 2004 (as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time, the "Credit
Agreement," the terms defined therein being used herein as therein defined),
among the Borrower, certain financial institutions from time to time party
thereto (the "Lenders"), and you, as Administrative Agent for such Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 1.03(a) of the Credit
Agreement, that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 1.03(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________.(1)
(ii) The aggregate principal amount of the Proposed Borrowing is
$____________.
(iii) The Proposed Borrowing shall consist of [Revolving Loans]
[Swingline Loans].
[(iv) The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar
Loans].]
[(v) The initial Interest Period for the Proposed Borrowing is
month(s).]
- ----------------
(1) Shall be a Business Day on or after the date hereof in the case of Base
Rate Loans and three Business Days after the date hereof in the case of
Eurodollar Loans, provided that any such notice shall be deemed to have
been given on a certain day only if given before (a) 10:00 A.M. (New York
time) in the case of a Borrowing of Revolving Loans maintained as Base
Rate Loans, (b) 11:00 A.M. (New York time) in the case of Eurodollar Loans
and (c) 12:00 Noon (New York time) in the case of a Borrowing of Swingline
Loans).
A-1
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect to
the Proposed Borrowing and to the application of the proceeds thereof, as
though made on such date, unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of
the proceeds thereof.
Very truly yours,
FLOWERS FOODS, INC.
By: _______________________
Name:
Title:
A-2
EXHIBIT A-2
NOTICE OF CONVERSION/CONTINUATION
[Date]
Deutsche Bank AG, New York Branch,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
90 Hudson Street
Fifth Floor
Jersey City, New Jersey 07302
Attention: Nelson Lugaro
Ladies and Gentlemen:
The undersigned, Flowers Foods, Inc. (the "Borrower"), refers to the
Credit Agreement, dated as of October 24, 2003 and amended and restated as of
October 29, 2004 (as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time, the "Credit
Agreement," the terms defined therein being used herein as therein defined),
among the Borrower, the lenders from time to time party thereto (the "Lenders"),
and you, as Administrative Agent for such Lenders and hereby give you notice,
irrevocably, pursuant to Section [1.06][1.09] of the Credit Agreement, that the
undersigned hereby requests to [convert] [continue] the Borrowing of Revolving
Loans referred to below, and in that connection sets forth below the information
relating to such [conversion] [continuation] (the "Proposed [Conversion]
[Continuation]") as required by Section [1.06][1.09] of the Credit Agreement:
(i) The Proposed [Conversion] [Continuation] relates to the
Borrowing of Revolving Loans originally made on _____ __, 20__ (the
"Outstanding Borrowing") in the principal amount of $________ and
currently maintained as a Borrowing of [Base Rate Loans] [Eurodollar Loans
with an Interest Period ending on _____ __, ____].
(ii) The Business Day of the Proposed [Conversion] [Continuation] is
____________.(1)
(iii) The Outstanding Borrowing shall be [continued as a Borrowing
of Eurodollar Loans with an Interest Period of _______] [converted into a
Borrowing of [Base Rate Loans] [Eurodollar Loans with an Interest Period
of ___]].(2)
- ----------------
(1) Shall be a Business Day after the date hereof provided that such notice
shall be deemed to have been given on a certain day only if given before
12:00 Noon (New York time) on such day.
(2) In the event that either (x) only a portion of the Outstanding Borrowing
is to be so converted or continued or (y) the Outstanding Borrowing is to
be divided into separate Borrowings with different Interest Periods, the
Borrower should make appropriate modifications to this clause to reflect
same.
A-2-1
[The undersigned hereby certifies that no Default or Event of Default has
occurred and is continuing on the date hereof or will have occurred and be
continuing on the date of the Proposed [Conversion][Continuation].](3)
Very truly yours,
FLOWERS FOODS, INC.
By ________________________
Name:
Title:
- ---------------
(3) In the case of a Proposed Conversion or Continuation, insert this sentence
only in the event that the conversion is from a Base Rate Loan to a
Eurodollar Loan or in the case of a continuation of a Eurodollar Loan.
A-2-2
EXHIBIT B-1
REVOLVING NOTE
New York, New York
__________ __, 200__
FOR VALUE RECEIVED, FLOWERS FOODS, INC. (the "Borrower") hereby promises
to pay to ______________ or its registered assigns (the "Lender"), in Dollars
(as defined in the Agreement referred to below) in immediately available funds,
at the office of Deutsche Bank AG, New York Branch (the "Administrative Agent")
located at 90 Hudson Street, Fifth Floor, Jersey City, New Jersey 07302 on the
Maturity Date (as defined in the Agreement) the unpaid principal amount of all
Revolving Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the rates
and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of October 24, 2003 and amended and restated as of October
29, 2004, among the Borrower, certain financial institutions from time to time
party thereto (including the Lender), and the Administrative Agent (as so
amended and restated and as the same may be further amended, restated, modified
and/or supplemented from time to time, the "Agreement") and is entitled to the
benefits thereof and of the other Credit Documents (as defined in the
Agreement). This Note is entitled to the benefits of the Subsidiaries Guaranty
(as defined in the Agreement). This Note is subject to voluntary prepayment and
mandatory repayment prior to the Maturity Date, in whole or in part, as provided
in the Agreement.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may become or
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By: _______________________
Name:
Title:
B-1
EXHIBIT B-2
SWINGLINE NOTE
$25,000,000 New York, New York
_________ __, 200___
FOR VALUE RECEIVED, FLOWERS FOODS, INC. (the "Borrower") hereby promises
to pay to DEUTSCHE BANK AG, NEW YORK BRANCH, or its registered assigns (the
"Lender"), in Dollars (as defined in the Agreement referred to below) in
immediately available funds, at the office of Deutsche Bank AG, New York Branch
(the "Administrative Agent") located at 90 Hudson Street, Fifth Floor, Jersey
City, New Jersey 07302 on the Swingline Expiry Date (as defined in the
Agreement) the principal sum of TWENTY-FIVE MILLION DOLLARS ($25,000,000) or, if
less, the unpaid principal amount of all Swingline Loans (as defined in the
Agreement) made by the Lender pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the rates
and at the times provided in Section 1.08 of the Agreement.
This Note is the Swingline Note referred to in the Credit Agreement, dated
as of October 24, 2003 and amended and restated as of October 29, 2004, among
the Borrower, certain financial institutions from time to time party thereto
(including the Lender), and the Administrative Agent (as so amended and restated
and as the same may be further amended, restated, modified and/or supplemented
from time to time, the "Agreement") and is entitled to the benefits thereof and
of the other Credit Documents (as defined in the Agreement). This Note is
entitled to the benefits of the Subsidiaries Guaranty (as defined in the
Agreement). This Note is subject to voluntary prepayment and mandatory repayment
prior to the Swingline Expiry Date, in whole or in part, as provided in the
Agreement.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may become or
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
FLOWERS FOODS, INC.
By: _______________________
Name:
Title:
B-2-1
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
Dated _______(1)
Deutsche Bank AG, New York Branch, as
Administrative Agent (the
"Administrative Agent") under that
certain Credit Agreement dated as of
October 24, 2003 and amended and
restated as of October 29, 2004 (as so
amended and restated and as the same may
be further amended, restated, modified
and/or supplemented from time to time,
the "Credit Agreement"), among Flowers
Foods, Inc. (the "Borrower"), the
lenders from time to time party thereto,
and the Administrative Agent
c/o Deutsche Bank
60 Wall Street, 38(th) Floor
New York Branch, New York 10005
Attention: Global Loan Operations
Standby LC Unit - MS NYC60-3812
[Insert name and address of Issuing Lender.]
Dear Sirs:
We hereby request that _______(2), in its individual capacity as an
Issuing Lender under the Credit Agreement, issue an irrevocable [trade]
[standby] Letter of Credit for the account of the undersigned on _______(3) (the
"Date of Issuance") in an aggregate stated amount of _______(4).
For purposes of this Letter of Credit Request, unless otherwise defined
herein, all capitalized terms used herein which are defined in the Credit
Agreement shall have the respective meaning provided therein.
- -------------------------
(1) Insert date of Letter of Credit Request.
(2) Insert name of Issuing Lender.
(3) Date of Issuance which shall be at least five Business Days from the date
hereof (or such shorter period as may be acceptable to the Issuing
Lender).
(4) Insert aggregate initial stated amount of the Letter of Credit which shall
not be less than $50,000.00 (or such lesser amount as is acceptable to the
Issuing Lender).
C-1
The beneficiary of the Letter of Credit will be _______(5), and such
Letter of Credit will be in support of _______(6) and will have a stated
expiration date of _______(7).
We hereby certify that:
(1) The representations and warranties contained in the Credit Agreement
will be true and correct in all material respects on the Date of Issuance, both
before and after giving effect to the issuance of the Letter of Credit requested
hereby (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
(2) No Default or Event of Default has occurred and is continuing nor,
after giving effect to the issuance of the Letter of Credit requested hereby,
would such a Default or an Event of Default occur.
FLOWERS FOODS, INC.
By: _______________________
Name:
Title:
- ----------------------
(5) Insert full name and address of the beneficiary of the Letter of Credit.
(6) Insert description of (A) in the case of trade Letters of Credit, the
obligations supported by the trade Letter of Credit and (B) in the case of
standby Letters of Credit, the L/C Supportable Obligations.
(7) Insert last date upon which drafts may be presented as provided in Section
2.01(c) of the Credit Agreement.
C-2
EXHIBIT D
SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of October 24,
2003 and amended and restated as of October 29, 2004, among Flowers Foods, Inc.,
the financial institutions from time to time party thereto as lenders, and
Deutsche Bank AG, New York Branch, as Administrative Agent (as so amended and
restated and as the same may be further amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement"). Pursuant to the
provisions of Section 4.04(b)(ii) of the Credit Agreement, the undersigned
hereby certifies that it is not a "bank" as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
The undersigned shall promptly notify the Borrower and the Administrative
Agent if the warranty and representation made herein is no longer true and
correct.
[NAME OF LENDER]
By ________________________
Name:
Title:
Date: _______________, 200_
D-1
EXHIBIT E-1
October 29, 2004
To the Lenders and the Agents
Referred to Below
c/o Deutsche Bank AG, New York Branch
60 Wall Street
New York, New York 10005
Re: Flowers Foods, Inc.
Ladies/Gentlemen:
We have acted as special counsel for Flowers Foods, Inc., a Georgia
corporation (the "Company"), and the directly and indirectly wholly owned
subsidiaries of the Company listed on Schedule 1 to this opinion letter (each,
individually, a "Subco," and collectively, the "Subcos") in connection with the
Credit Agreement dated as of October 24, 2003, and amended and restated as of
October 29, 2004 (the "Financing Agreement"), among the Company, the financial
institutions listed on the signature pages thereof (the "Lenders"), and Deutsche
Bank AG, New York Branch, as administrative agent under the Financing Agreement
(in such capacity, the "Agent"). The Company and the Subcos are sometimes
referred to herein individually as a "Transaction Party" and collectively as the
"Transaction Parties." The Subcos listed on Schedule 2 to this opinion letter
are sometimes referred to herein individually as a "Specified Transaction Party"
and collectively as the "Specified Transaction Parties." This opinion letter is
delivered to you pursuant to Section 5.03 of the Financing Agreement.
Capitalized terms used herein and not otherwise defined herein have the meanings
assigned to such terms in the Financing Agreement. With your permission, all
assumptions and statements of reliance herein have been made without any
independent investigation or verification on our part except to the extent, if
any, otherwise expressly stated, and we express no opinion with respect to the
subject matter or accuracy of the assumptions or items upon which we have
relied. In preparing this opinion, we have assumed solely for purposes hereof
that the Total Commitment under the Financing Agreement includes the maximum
amount of all Incremental Revolving Loan Commitments permitted to be requested
by the Company pursuant to Section 1.14 of the Financing Agreement.
In connection with the opinions expressed herein, we have examined such
documents, records and matters of law as we have deemed necessary for the
purposes of such opinions. We have examined, among other documents, the
following:
(1) an executed copy of the Financing Agreement;
(2) a copy of each of the Revolving Notes and the Swingline Note
executed and delivered on the date hereof (the "Notes");
(3) an executed copy of the Subsidiaries Guaranty, dated as of
October 29, 2004 (the "Guaranty"), of the Subcos for the benefit of the
Agent and the Lenders; and
E-1-1
(4) the Officer's Certificate in respect of each Transaction Party
delivered to us in connection with this opinion letter, a copy of which is
attached hereto as Exhibits A-1 through A-2 (as to each relevant
Transaction Party, the "Officer's Certificate" and, collectively, the
"Officer's Certificates").
The documents referred to in items (1) through (3) above, inclusive, are
referred to herein collectively as the "Documents."
In all such examinations, we have assumed the legal capacity of all
natural persons executing documents, the genuineness of all signatures, the
authenticity of original and certified documents and the conformity to original
or certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, we have relied upon, and assume the accuracy of, representations and
warranties contained in the Documents and certificates and oral or written
statements and other information of or from representatives of the Transaction
Parties and others and assume compliance on the part of the Transaction Parties
with their covenants and agreements contained therein. In connection with the
opinions expressed in the first sentence of paragraph (a) below, we have relied
solely upon certificates of public officials as to the factual matters set forth
therein and have assumed that such public officials have performed their
statutory and regulatory duties with respect to the issuance of such
certificates. With respect to the opinions expressed in clause (i) in paragraph
(a) below and clauses (i) and (ii)(A) of paragraph (b)(2) below, our opinions as
to the business activities and properties of the Transaction Parties are limited
(x) to the business activities and properties of the Transaction Parties
described in the Officer's Certificates without any independent investigation or
verification on our part and (y) to only those laws and regulations that, in our
experience, are normally applicable to transactions of the type contemplated by
the Documents (including, without limitation, the form of Incremental Revolving
Loan Commitment Agreement attached to the Financing Agreement as Exhibit L).
Based upon the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
(a) Each Transaction Party (other than a Specified Transaction Party) is
(x) a corporation or limited liability company, as the case may be,
in good standing under the laws of the state of its organization,
and (y) authorized or qualified to do business and in good standing
as a foreign corporation or limited liability company, as the case
may be, in the case of this clause (y), in each jurisdiction, and as
of the dates, listed on Exhibit B hereto. Each Transaction Party
(other than a Specified Transaction Party) has the corporate or
limited liability company, as the case may be, power and authority
(i) to own its properties and conduct its business substantially as
described in the Officer's Certificate of such Transaction Party,
(ii) to enter into and to incur and perform its obligations under
the Documents to which it is a party, and (iii) to enter into and
incur and perform its obligations under each Incremental Revolving
Loan Commitment Agreement to which it becomes a party, if any.
(b) (1) The execution and delivery to the Agent and the Lenders by each
Transaction Party (other than a Specified Transaction Party) of the
Documents to which it is a
E-1-2
party and each Incremental Revolving Loan Commitment Agreement to
which it may become a party, if any, and the performance by such
Transaction Party of its obligations thereunder (i) have been duly
authorized by all necessary corporate and shareholder, or limited
liability company and member, as the case may be, action in respect
of such Transaction Party and (ii) do not contravene any provision
of the Articles or Certificate of Incorporation, Organization, or
Formation or By-laws, Limited Liability Company Agreement, Limited
Liability Company Declaration, or Limited Liability Operating
Agreement, as applicable, of such Transaction Party.
(2) The execution and delivery to the Agent and the Lenders by
each Transaction Party of the Documents to which it is a party
and each Incremental Revolving Loan Commitment Agreement to
which it may become a party, if any, the performance by such
Transaction Party of its obligations thereunder, the
enforceability of the Documents and each such Incremental
Revolving Loan Commitment Agreement against such Transaction
Party and the extensions of credit under the Documents
(whether or not in connection with the execution and delivery
of any Incremental Revolving Loan Commitment Agreement) (i) do
not require under present law, or present regulation of any
governmental agency or authority, of the States of New York,
Georgia or Texas, or of the United States of America, any
filing or registration by such Transaction Party with, or
approval or consent to such Transaction Party of, any
governmental agency or authority of the States of New York,
Georgia, or Texas, or the United States of America, that has
not been made or obtained, except those required after the
Effective Date in the ordinary course of business in
connection with the performance by such Transaction Party of
its obligations under certain covenants contained in the
Documents or any Incremental Revolving Loan Commitment
Agreement to which it is a party, and filings in respect of
ordinary course reporting requirements under securities laws
and (ii) do not violate (A) the general corporation laws and
general limited liability company laws of the State of
Delaware, any present law, or present regulation of any
governmental agency or authority, of the States of New York,
Georgia or Texas, or of the United States of America
applicable to such Transaction Party or its property or (B)
any agreement binding upon such Transaction Party or its
property that is listed on Annex I to the Officer's
Certificate thereof or any court decree or order binding upon
such Transaction Party or its property that is listed on Annex
II to the Officer's Certificate thereof (this opinion being
limited in that we express no opinion with respect to any
violation not readily ascertainable from the face of any such
agreements, decrees or orders, or arising under or based upon
any cross default provision insofar as it relates to a default
under an agreement not so identified to us, or arising under
or based upon any covenant of a financial or numerical nature
or requiring computation, other than any express covenant to
not incur or guarantee a sum certain amount of debt) and (iii)
will not result in or require the creation or imposition of
any
E-1-3
security interest or lien upon any of its properties pursuant
to the provisions of any agreement binding upon such
Transaction Party or its properties that is listed on Annex I
to the Officer's Certificate thereof other than any liens in
favor of the Agent or the Lenders arising under any of the
Documents or applicable law.
(c) Each Document has been duly executed and delivered on behalf of each
Transaction Party signatory thereto. Each Document constitutes a
valid and binding obligation of such Transaction Party enforceable
in accordance with its terms. Each Incremental Revolving Loan
Commitment Agreement, once executed and delivered on behalf of the
Transaction Parties, will constitute a valid and binding obligation
of the Transaction Parties enforceable in accordance with its terms.
(d) The borrowings by the Company under the Financing Agreement (after
giving effect to the maximum amount of all Incremental Revolving
Loan Commitments permitted to be requested by the Company pursuant
to Section 1.14 of the Financing Agreement) and the application of
the proceeds thereof as provided in the Financing Agreement will not
violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System (the "Margin Regulations").
(e) The Company is not required to register as an "investment company"
(under, and as defined in, the Investment Company Act of 1940, as
amended (the "1940 Act")) and is not a company controlled by a
company required to register as such under the 1940 Act, and is not
a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company," or of a
"subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the following qualifications
and limitations:
(A) Our opinions in the second sentence in paragraph (c)
above are subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer and
conveyance, voidable preference, moratorium,
receivership, conservatorship, arrangement or similar
laws, and related regulations and judicial doctrines,
from time to time in effect affecting creditors' rights
and remedies generally, and (ii) general principles of
equity (including, without limitation, standards of
materiality, good faith, fair dealing and
reasonableness, equitable defenses, the exercise of
judicial discretion and limits on the availability of
equitable remedies), whether such principles are
considered in a proceeding at law or in equity, in each
case subject to the other qualifications contained in
this letter.
(B) We express no opinion as to the enforceability of any
provision in the Documents:
E-1-4
(i) providing that any person or entity may enforce
any right or remedy thereunder except in
compliance with applicable laws;
(ii) relating to indemnification, contribution or
exculpation in connection with violations of any
securities laws or statutory duties or public
policy, or in connection with willful, reckless or
unlawful acts or gross negligence of the
indemnified or exculpated party or the party
receiving contribution;
(iii) providing that any person or entity may exercise
set-off rights other than in accordance with and
pursuant to applicable law;
(iv) relating to choice of governing law to the extent
that the enforceability of any such provision is
to be determined by any court other than a court
of the State of New York or may be subject to
constitutional limitations;
(v) purporting to confer, or constituting an agreement
with respect to, subject matter jurisdiction of
United States federal courts to adjudicate any
matter;
(vi) purporting to create a trust or other fiduciary
relationship;
(vii) specifying that provisions thereof may be waived
only in writing, to the extent that an oral
agreement or an implied agreement by trade
practice or course of conduct has been created
that modifies any provision of such Documents;
(viii) giving any person or entity the power to
accelerate obligations without any notice to the
obligor; or
(ix) providing for the performance by any guarantor of
any of the nonmonetary obligations of any person
or entity not controlled by such guarantor.
(C) Our opinions as to enforceability are subject to the
effect of generally applicable rules of law that:
(i) provide that forum selection clauses in contracts
are not necessarily binding on the court(s) in the
forum selected; and
(ii) may, where less than all of a contract may be
unenforceable, limit the enforceability of the
balance of the contract to circumstances in which
the unenforceable
E-1-5
portion is not an essential part of the agreed
exchange, or that permit a court to reserve to
itself a decision as to whether any provision of
any agreement is severable; and
(iii) limit the availability of a remedy under certain
circumstances when another remedy has been
elected.
(D) We express no opinion as to the enforceability of any
purported waiver, release, variation, disclaimer,
consent or other agreement to similar effect (all of the
foregoing, collectively, a "Waiver") by any Transaction
Party under any of the Documents to the extent limited
by provisions of applicable law (including judicial
decisions), or to the extent that such a Waiver applies
to a right, claim, duty or defense or a ground for, or a
circumstance that would operate as, a discharge or
release otherwise existing or occurring as a matter of
law (including judicial decisions), except to the extent
that such a Waiver is effective under and is not
prohibited by or void or invalid under provisions of
applicable law (including judicial decisions).
(E) We express no opinion under the laws of:
(a) the States of Georgia or Texas with respect to
(i) usury laws; or
(ii) waivers of any rights to trial by jury.
(b) the State of Texas with respect to any provision
of any Document
(i) relating to integration, statute of frauds or
notice of the entire agreement of the parties;
(ii) relating to indemnification, contribution or
exculpation in connection with violations of any
securities laws or statutory duties or public
policy, or in connection with willful, reckless or
unlawful acts or gross or ordinary negligence of
the indemnified or exculpated party or the party
receiving contribution; or
(iii) relating to indemnification, contribution or
exculpation of any party that a court would
determine in the circumstances under applicable
law to be insufficiently explicit or conspicuous.
(F) To the extent it may be relevant to the opinions
expressed herein, we have assumed that the parties to
the Documents (other than the
E-1-6
Transaction Parties) have the power to enter into and
perform such documents and to consummate the
transactions contemplated thereby and that such
documents have been duly authorized, executed and
delivered by, and constitute legal, valid and binding
obligations of, such parties. For purposes of our
opinions above insofar as they relate to the Specified
Transaction Parties, we have assumed that each Specified
Transaction Party is a corporation or limited liability
company, as the case may be, is validly existing in good
standing in its jurisdiction of organization, has all
requisite power and authority, and has obtained all
requisite corporate or limited liability company, third
party and governmental authorizations, consents and
approvals, and made all requisite filings and
registrations, necessary to execute, deliver and perform
the Documents to which it is a party and to grant the
guaranties contemplated thereby (except to the extent
noted in paragraph (b) above), and that such execution,
delivery, performance and grant will not violate or
conflict with any law, rule, regulation, order, decree,
judgment, instrument or agreement binding upon or
applicable to it or its properties (except to the extent
noted in paragraph (b) above).
(G) For purposes of the opinions set forth in paragraph (d)
above, we have assumed that (the following assumptions
made with respect to agreements, arrangements or
extensions of credit exclude the Documents) (i) neither
the Agent nor any of the Lenders has or will have the
benefit of any agreement or arrangement pursuant to
which any extensions of credit to any Transaction Party
are directly or indirectly secured by "margin stock" (as
defined under the Margin Regulations), (ii) neither the
Agent nor any of the Lenders nor any of their respective
affiliates has extended or will extend any other credit
to any Transaction Party directly or indirectly secured
by margin stock, and (iii) no more than 25% of the value
of the assets of the Borrower, or of the Borrower and
the other Transaction Parties, taken as a whole,
constitutes "margin stock" (as defined in the Margin
Regulations).
(H) The opinions expressed in this opinion letter are
limited to the federal laws of the United States of
America, the laws of the State of New York, and, to the
extent relevant in the first sentence in paragraph (c)
and paragraphs (a), (b)(1), (b)(2)(i), (b)(2)(ii)(A) and
(b)(2)(ii)(B), the laws of the States of Georgia and
Texas, as the case may be, and the general corporation
laws and general limited liability company laws of the
State of Delaware.
(I) Our opinions are limited to those expressly set forth
herein, and we express no opinions by implication.
E-1-7
(J) We express no opinion as to the compliance or
noncompliance, or the effect of the compliance or
noncompliance, of any of the addressees or any other
person or entity with any state or federal laws or
regulations applicable to any of them by reason of their
status as or affiliation with a federally insured
depository institution.|OUTLINEA_L4|ZZMPTAG|
The opinions expressed herein are made as of the date of this letter and
are based on the facts and circumstances existing, and the law in effect in the
applicable jurisdictions, on the date hereof. The opinions expressed herein are
solely for the benefit of the addressees hereof and of any other person or
entity becoming a Lender or Agent under the Financing Agreement, in each case,
in connection with the transaction referred to herein, and may not be relied on
by such addressees or such other person or entity for any other purpose or in
any manner or for any purpose by any other person or entity.
Very truly yours,
JONES DAY
E-1-8
SCHEDULE 1 TO OPINION LETTER
FLOWERS FOODS, INC. SUBSIDIARIES
ENTITY STATE OF ORGANIZATION
------ ---------------------
Bailey Street Bakery, LLC AL
Flowers Bakery of Montgomery, LLC AL
Flowers Baking Co. of Birmingham, LLC(1) AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, LLC AR
Flowers Baking Co. of Texarkana, LLC AR
Shipley Baking Company, LLC AR
Flowers Bakeries Brands, Inc. DE
Flowers Finance, LLC DE
Flowers Baking Co. of Bradenton, LLC FL
Flowers Baking Co. of Florida, LLC FL
Flowers Baking Co. of Jacksonville, LLC FL
Flowers Baking Co. of Miami, LLC FL
Flowers Bakery of Atlanta, LLC GA
Flowers Bakery of Suwanee, LLC GA
Flowers Baking Co. of McDonough, LLC GA
Flowers Baking Co. of Thomasville, LLC GA
Flowers Baking Co. of Tucker, LLC GA
Flowers Baking Co. of Tyler, LLC GA
Flowers Baking Co. of Villa Rica, LLC GA
Flowers Foil Company, LLC GA
Flowers Foods Bakeries Group, LLC GA
Flowers Foods Specialty Group, LLC GA
Flowers Foods Specialty Sales, LLC GA
Flowers Frozen Desserts of Pennsylvania, LLC GA
Flowers Frozen Desserts Sales Group, LLC GA
Flowers Frozen Desserts, LLC GA
Flowers Frozen Distributors, LLC GA
- ---------------------
(1) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
entity, none of which have yet been changed to reflect the new name.
E-1-9
ENTITY STATE OF ORGANIZATION
------ ---------------------
Table Pride, LLC GA
Flowers Bakery of London, LLC KY
Flowers Baking Co. of Baton Rouge, LLC LA
Flowers Baking Co. of Lafayette, LLC LA
Flowers Baking Co. of New Orleans, LLC LA
Flowers Baking Co. of Jamestown, LLC NC
Flowers Frozen Desserts of Pembroke, LLC NC
Franklin Baking Company, LLC NC
Flowers Frozen Desserts of Stilwell, LLC OK
Flowers Specialty Brands, Inc. SC
Flowers Frozen Desserts of Spartanburg, LLC SC
Flowers Bakery Distributors, Inc. TN
Flowers Bakery of Cleveland, LLC TN
Flowers Bakery of Crossville, LLC TN
Flowers Baking Co. of Memphis, LLC TN
Flowers Baking Co. of Morristown, LLC TN
Flowers Baking Co. of Nashville, LLC TN
West Tennessee Baking Co., LLC TN
Austin Baking Co., LLC TX
Corpus Christi Baking Co., LLC TX
Flowers Baking Co. of Denton, LLC TX
Flowers Baking Co. of El Paso, LLC TX
Flowers Baking Co. of Houston, LLC TX
Flowers Baking Co. of San Antonio, LLC TX
Flowers Baking Co. of Texas, LLC TX
Leeland Baking Co., LLC TX
San Antonio Baking Co., LLC TX
Flowers Baking Co. of Lynchburg, LLC VA
Flowers Baking Co. of Norfolk, LLC VA
Flowers Baking Co. of West Virginia, LLC WV
Storck Baking Company, LLC WV
The Donut House, LLC WV
E-1-10
SCHEDULE 2 TO OPINION LETTER
SPECIFIED TRANSACTION PARTIES
(FLOWERS FOODS, INC. SUBSIDIARIES
EXCLUDING GA, DE, AND TX)
ENTITY STATE OF ORGANIZATION
------ ---------------------
Bailey Street Bakery, LLC AL
Flowers Bakery of Montgomery, LLC AL
Flowers Baking Co. of Birmingham, LLC(2) AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, LLC AR
Flowers Baking Co. of Texarkana, LLC AR
Shipley Baking Company, LLC AR
Flowers Baking Co. of Bradenton, LLC FL
Flowers Baking Co. of Florida, LLC FL
Flowers Baking Co. of Jacksonville, LLC FL
Flowers Baking Co. of Miami, LLC FL
Flowers Bakery of London, LLC KY
Flowers Baking Co. of Baton Rouge, LLC LA
Flowers Baking Co. of Lafayette, LLC LA
Flowers Baking Co. of New Orleans, LLC LA
Flowers Baking Co. of Jamestown, LLC NC
Flowers Frozen Desserts of Pembroke, LLC NC
Franklin Baking Company, LLC NC
Flowers Frozen Desserts of Stilwell, LLC OK
Flowers Specialty Brands, Inc. SC
Flowers Frozen Desserts of Spartanburg, LLC SC
Flowers Bakery Distributors, Inc. TN
Flowers Bakery of Cleveland, LLC TN
Flowers Bakery of Crossville, LLC TN
Flowers Baking Co. of Memphis, LLC TN
Flowers Baking Co. of Morristown, LLC TN
Flowers Baking Co. of Nashville, LLC TN
West Tennessee Baking Co., LLC TN
- ---------------------
(2) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
entity, none of which have yet been changed to reflect the new name.
E-1-11
ENTITY STATE OF ORGANIZATION
------ ---------------------
Flowers Baking Co. of Lynchburg, LLC VA
Flowers Baking Co. of Norfolk, LLC VA
Flowers Baking Co. of West Virginia, LLC WV
Storck Baking Company, LLC WV
The Donut House, LLC WV
E-1-12
EXHIBIT A-1
OFFICER'S CERTIFICATE
The undersigned officer of FLOWERS FOODS, INC. (the "Company"), hereby
certifies, as of the date hereof in connection with the execution, delivery and
performance by the Company of the Credit Agreement, dated as of October 24,
2003, and as amended and restated as of October 29, 2004 (the "Financing
Agreement"), among the Company, various lenders party thereto, and Deutsche Bank
AG, New York Branch, as administrative agent under the Financing Agreement, and
with the consummation of the transactions contemplated thereby and the opinion
of Jones Day (the "Opinion") delivered in connection therewith, as follows with
respect to the Company:
Attached as (a) Annex I hereto is a list of all material indentures,
mortgages, deeds of trust, security and/or pledge agreements, guarantees, loan
and/or credit agreements and other agreements or instruments (other than the
Documents) and (b) Annex II hereto is a list of all decrees and orders, in each
case in clause (a) and (b) above, to which the Company is a party or that are
otherwise binding upon the Company or any of its assets or property and that
contain financial or other covenants or provisions for defaults or events of
default or similar events or occurrences or other provisions that otherwise
would or could have the effect of (i) restricting the types of provisions that
any other agreement to which the Company becomes a party may contain, (ii)
restricting the conduct of the Company's business, the incurrence by the Company
of indebtedness, guarantees, or other liabilities or obligations, or the
creation of liens upon any of the Company's property or assets, or otherwise
restricting the execution, delivery, and performance of, or the consummation of
the transactions contemplated by, the Financing Agreement or any of the other
Documents to which the Company is a party, or (iii) resulting in, or requiring
the creation or imposition of, any lien upon any of the Company's assets or
property as a result of the execution, delivery or performance of, or the
consummation of the transactions contemplated by, any of the Documents to which
the Company is a party.
A true and complete copy of each of the above agreements, instruments and
decrees and orders has heretofore been furnished to Jones Day.
No default or event of default under, or violation of, any such agreement,
instrument, or decree or order exists or, immediately after giving effect to
entry into the Documents or consummation of any of the transactions contemplated
thereby, will exist.
The nature of the Company's business and properties, and the purpose of
the Company, is to engage in the production and marketing of bakery products
(the "Business"). Except for the Business, the Company does not engage or
propose to engage in any industry or business or activity, or own any property
or asset, that causes or would cause it to be subject to special local, state or
federal regulation not applicable to business organizations generally
(including, without limitation, those regulations applicable only to banks,
savings and loan institutions, insurance companies, public utilities or
investment companies).
E-1-13
To the best knowledge of the Company (i) no proceeding is pending in any
jurisdiction for the dissolution or liquidation of the Company, and the Company
has not filed any certificate or order of dissolution, (ii) no event has
occurred that has adversely affected the good standing of the Company under the
laws of its state of organization, and the Company has paid all taxes currently
due, if any, and taken all other action required by state law to maintain such
good standing and (iii) no grounds exist for the revocation or forfeiture of the
Company's organizational documents.
Jones Day may rely upon the accuracy of all factual representations and
warranties of the Company contained in the Documents, in this Officer's
Certificate and in all documents and certificates referred to therein or
delivered in connection therewith.
Capitalized terms used but not defined in this Officer's Certificate have
the meanings ascribed to them in the Opinion.
IN WITNESS WHEREOF, I have hereunto set my hand as of October 29, 2004
___________________________
Name:
Title:
E-1-14
ANNEX I
1. Employee Benefits Agreement by and between Flowers Industries, Inc. and
Flowers Foods, Inc., dated as of October 26, 2000 (Incorporated by reference to
Flowers Foods' Registration Statement on Form 10, dated December 1, 2000, File
No. 1-16247).
2. First Amendment to Employee Benefits Agreement by and between Flowers
Industries, Inc. and Flowers Foods, Inc., dated as of February 6, 2001
(Incorporated by reference to Flowers Foods' Registration Statement on Form 10,
dated February 9, 2001, File No. 1-16247).
3. Flowers Foods, Inc. Retirement Plan No. 1 (Incorporated by reference to
Flowers Foods' Annual Report on Form 10-K, dated March 30, 2001. File No.
1-16247).
4. Flowers Foods, Inc. 2001 Equity and Performance Incentive Plan (Incorporated
by reference to Flowers Foods' Annual Report on Form 10-K, dated March 30, 2001,
File No. 1-16247).
5. Debenture Tender Agreement, dated as of March 12, 2001, by and among Flowers
Industries, Inc., Flowers Foods, Inc. and the Holders (Incorporated by reference
to Flowers Foods' Annual Report on Form 10-K, dated March 30, 2001, File No.
1-16247).
6. Employment Agreement, effective as of December 31, 2001, by and between
Flowers Foods, Inc. and G. Anthony Campbell. (Incorporated by reference to
Flowers Foods' Annual Report on Form 10-K, dated March 29, 2002, File No.
1-16247).
7. Flowers Foods, Inc. Stock Appreciation Rights Plan. (Incorporated by
reference to Flowers Foods' Annual Report on Form 10-K, dated March 29, 2002,
File No. 1-6247).
8. Flowers Foods, Inc. Annual Executive Bonus Plan. (Incorporated by reference
to Flowers Foods' Annual Report on Form 10-K, dated March 29, 2002, File No.
1-6247).
9. Flowers Foods, Inc. Supplemental Executive Retirement Plan. (Incorporated by
reference to Flowers Foods' Annual Report on Form 10-K, dated March 29, 2002,
File No. 1-6247).
10. Indemnification Agreement, by and between Flowers Foods, Inc., certain
executive officers and the directors of Flowers Foods, Inc. (Incorporated by
reference to Flowers Foods' Annual Report on Form 10-K, dated March 28, 2003).
11. Asset Purchase Agreement dated January 29, 2003 by and among The Schwan Food
Company, Flowers Foods, Inc. and Mrs. Smith's Bakeries, LLC (Incorporated by
reference to Flowers Foods' Current Report on Form 8-K dated May 9, 2003).
12. First Amendment to Asset Purchase Agreement dated April 24, 2003 by and
among The Schwan Food Company, Flowers Foods, Inc. and Mrs. Smith's Bakeries,
LLC (Incorporated by reference to Flowers Foods' Current Report on Form 8-K
dated May 9, 2003).
E-1-15
13. Credit Agreement, dated as of October 24, 2003, among Flowers Foods, Inc.,
the Lenders party thereto from time to time, Fleet National Bank, Harris Trust
and Savings Bank and Cooperatieve Centrale Raiffeisen-Boerenleen Bank, B.A., New
York Branch, as co-documentation agents, SunTrust Bank, as syndication agent and
Deutsche Bank AG, New York Branch, as administrative agent. (Incorporated by
reference to Flowers Foods' Quarterly Report on Form 10-Q, dated November 18,
2003, File No. 1-16247).
14. Form of Separation Agreement, by and between Flowers Foods, Inc. and certain
executive officers of Flowers Foods, Inc. (Incorporated by reference to Flowers
Foods' Annual Report on Form 10-K dated March 18, 2004, File No. 1-16247).
15. Restricted Stock Agreement, dated as of January 4, 2004, by and between
Flowers Foods, Inc. and George E. Deese. (Incorporated by reference to Flowers
Foods' Annual Report on Form 10-K dated March 18, 2004, File No. 1-16247).
E-1-16
ANNEX II
None.
E-1-17
EXHIBIT A-2
OFFICER'S CERTIFICATE
The undersigned officer of each of the subsidiaries listed on Exhibit A
attached hereto (the "Subsidiaries") of Flowers Foods, Inc. (the "Company"),
hereby certifies, as of the date hereof in connection with the execution,
delivery and performance by the Company of the Credit Agreement, dated as of
October 24, 2003, and as amended and restated October 29, 2004 (the "Financing
Agreement"), among the Company, various lenders party thereto, and Deutsche Bank
AG, New York Branch, as administrative agent under the Financing Agreement, and
with the consummation of the transactions contemplated thereby and the opinion
of Jones Day (the "Opinion") delivered in connection therewith, as follows with
respect to each Subsidiary:
Attached as (a) Annex I hereto is a list of all material indentures,
mortgages, deeds of trust, security and/or pledge agreements, guarantees, loan
and/or credit agreements and other agreements or instruments (other than the
Documents) and (b) Annex II hereto is a list of all decrees and orders, in each
case in clause (a) and (b) above, to which the Subsidiaries are a party or that
are otherwise binding upon the Subsidiaries or any of its assets or property and
that contain financial or other covenants or provisions for defaults or events
of default or similar events or occurrences or other provisions that otherwise
would or could have the effect of (i) restricting the types of provisions that
any other agreement to which any Subsidiary becomes a party may contain, (ii)
restricting the conduct of any Subsidiary's business, the incurrence by any
Subsidiary of indebtedness, guarantees, or other liabilities or obligations, or
the creation of liens upon any of the Subsidiary's property or assets, or
otherwise restricting the execution, delivery, and performance of, or the
consummation of the transactions contemplated by, the Financing Agreement or any
of the other Documents to which any Subsidiary is a party, or (iii) resulting
in, or requiring the creation or imposition of, any lien upon any of the
Subsidiary's assets or property as a result of the execution, delivery or
performance of, or the consummation of the transactions contemplated by, any of
the Documents to which a Subsidiary is a party.
A true and complete copy of each of the above agreements, instruments and
decrees and orders has heretofore been furnished to Jones Day.
No default or event of default under, or violation of, any such agreement,
instrument, or decree or order exists or, immediately after giving effect to
entry into the Documents or consummation of any of the transactions contemplated
thereby, will exist.
The nature of the Subsidiaries' business and properties, and the purpose
of the Subsidiaries, is to engage in the production and marketing of bakery
products (the "Business"). Except for the Business, the Subsidiaries do not
engage or propose to engage in any industry or business or activity, or own any
property or asset, that causes or would cause it to be subject to special local,
state or federal regulation not applicable to business organizations generally
(including, without limitation, those regulations applicable only to banks,
savings and loan institutions, insurance companies, public utilities or
investment companies).
E-1-18
To the best knowledge of each Subsidiary (i) no proceeding is pending in
any jurisdiction for the dissolution or liquidation of any Subsidiary, and no
Subsidiary has filed any certificate or order of dissolution, (ii) no event has
occurred that has adversely affected the good standing of any Subsidiary under
the laws of its state of organization, and each Subsidiary has paid all taxes
currently due, if any, and taken all other action required by state law to
maintain such good standing and (iii) no grounds exist for the revocation or
forfeiture of any Subsidiary's organizational documents.
Jones Day may rely upon the accuracy of all factual representations and
warranties of the Subsidiaries contained in the Documents, in this Officer's
Certificate and in all documents and certificates referred to therein or
delivered in connection therewith.
Capitalized terms used but not defined in this Officer's Certificate have
the meanings ascribed to them in the Opinion.
IN WITNESS WHEREOF, I have hereunto set my hand as of October 29, 2004
___________________________
Name:
Title:
E-1-19
EXHIBIT A
FLOWERS FOODS, INC. SUBSIDIARIES
ENTITY STATE OF ORGANIZATION
------ ---------------------
Bailey Street Bakery, LLC AL
Flowers Bakery of Montgomery, LLC AL
Flowers Baking Co. of Birmingham, LLC(3) AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, LLC AR
Flowers Baking Co. of Texarkana, LLC AR
Shipley Baking Company, LLC AR
Flowers Bakeries Brands, Inc. DE
Flowers Finance, LLC DE
Flowers Baking Co. of Bradenton, LLC FL
Flowers Baking Co. of Florida, LLC FL
Flowers Baking Co. of Jacksonville, LLC FL
Flowers Baking Co. of Miami, LLC FL
Flowers Bakery of Atlanta, LLC GA
Flowers Bakery of Suwanee, LLC GA
Flowers Baking Co. of McDonough, LLC GA
Flowers Baking Co. of Thomasville, LLC GA
Flowers Baking Co. of Tucker, LLC GA
Flowers Baking Co. of Tyler, LLC GA
Flowers Baking Co. of Villa Rica, LLC GA
Flowers Foil Company, LLC GA
Flowers Foods Bakeries Group, LLC GA
Flowers Foods Specialty Group, LLC GA
Flowers Foods Specialty Sales, LLC GA
Flowers Frozen Desserts of Pennsylvania, LLC GA
Flowers Frozen Desserts Sales Group, LLC GA
Flowers Frozen Desserts, LLC GA
- ---------------------
(3) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
entity, none of which have yet been changed to reflect the new name.
E-1-20
ENTITY STATE OF ORGANIZATION
------ ---------------------
Flowers Frozen Distributors, LLC GA
Table Pride, LLC GA
Flowers Bakery of London, LLC KY
Flowers Baking Co. of Baton Rouge, LLC LA
Flowers Baking Co. of Lafayette, LLC LA
Flowers Baking Co. of New Orleans, LLC LA
Flowers Baking Co. of Jamestown, LLC NC
Flowers Frozen Desserts of Pembroke, LLC NC
Franklin Baking Company, LLC NC
Flowers Frozen Desserts of Stilwell, LLC OK
Flowers Specialty Brands, Inc. SC
Flowers Frozen Desserts of Spartanburg, LLC SC
Flowers Bakery Distributors, Inc. TN
Flowers Bakery of Cleveland, LLC TN
Flowers Bakery of Crossville, LLC TN
Flowers Baking Co. of Memphis, LLC TN
Flowers Baking Co. of Morristown, LLC TN
Flowers Baking Co. of Nashville, LLC TN
West Tennessee Baking Co., LLC TN
Austin Baking Co., LLC TX
Corpus Christi Baking Co., LLC TX
Flowers Baking Co. of Denton, LLC TX
Flowers Baking Co. of El Paso, LLC TX
Flowers Baking Co. of Houston, LLC TX
Flowers Baking Co. of San Antonio, LLC TX
Flowers Baking Co. of Texas, LLC TX
Leeland Baking Co., LLC TX
San Antonio Baking Co., LLC TX
Flowers Baking Co. of Lynchburg, LLC VA
Flowers Baking Co. of Norfolk, LLC VA
Flowers Baking Co. of West Virginia, LLC WV
Storck Baking Company, LLC WV
The Donut House, LLC WV
E-1-21
ANNEX I
None.
E-1-22
ANNEX II
None.
E-1-23
EXHIBIT B TO OPINION LETTER
DATE OF GOOD
STANDING DATE OF GOOD
CERTIFICATE FROM STANDING CERTIFICATE
JURISDICTION OF FROM FOREIGN
ENTITY STATE OF ORGANIZATION FORMATION JURISDICTIONS
------ --------------------- ---------------- --------------------
Flowers Foods, Inc. GA 10/19/2004 -
Flowers Bakeries Brands, Inc. DE 10/20/2004 -
Flowers Finance, LLC DE 10/20/2004 -
Flowers Bakery of Atlanta, LLC GA 10/19/2004 -
Flowers Bakery of Suwanee, LLC GA 10/19/2004 -
Flowers Baking Co. of McDonough, LLC GA 10/19/2004 -
Flowers Baking Co. of Thomasville, LLC GA 10/19/2004 AL-October 19, 2004
FL-October 18, 2004
Flowers Baking Co. of Tucker, LLC GA 10/19/2004 -
Flowers Baking Co. of Tyler, LLC GA 10/19/2004 LA-October 19, 2004
OK-October 18, 2004
AR-October 19, 2004
MO-October 20, 2004
TX-October 19, 2004
Flowers Baking Co. of Villa Rica, LLC GA 10/19/2004 TN-October 25, 2004
AL-October 19, 2004
Flowers Foil Company, LLC GA 10/19/2004 PA-October 19, 2004
Flowers Foods Bakeries Group, LLC GA 10/19/2004 -
Flowers Foods Specialty Group, LLC GA 10/19/2004 -
Flowers Foods Specialty Sales, LLC GA 10/19/2004 AL-October 19, 2004
AR-October 19, 2004
AZ-October 18, 2004
CO-October 19, 2004
FL-October 18, 2004
IN-October 19, 2004
KS-October 19, 2004
KY-October 20, 2004
LA-October 18, 2004
MA-October 18, 2004
MO-October 20, 2004
NJ-October 18, 2004
NC-October 20, 2004
OH-October 20, 2004
OK-October 18, 2004
SC-October 19, 2004
TN-October 18, 2004
WA-October 18, 2004
E-1-24
DATE OF GOOD
STANDING DATE OF GOOD
CERTIFICATE FROM STANDING CERTIFICATE
JURISDICTION OF FROM FOREIGN
ENTITY STATE OF ORGANIZATION FORMATION JURISDICTIONS
------ --------------------- ---------------- --------------------
Flowers Frozen Desserts of Pennsylvania, LLC GA 10/19/2004 PA-October 19, 2004
Flowers Frozen Desserts Sales Group, LLC GA 10/19/2004 CA-October 22, 2004
KY-October 22, 2004
LA-October 19, 2004
MN-October 18, 2004
OH-October 20, 2004
PA-October 19, 2004
TN-October 27, 2004
Flowers Frozen Desserts, LLC GA 10/19/2004 -
Flowers Frozen Distributors, LLC GA 10/19/2004 -
Table Pride, LLC GA 10/19/2004 -
Austin Baking Co., LLC TX 10/19/2004 -
Corpus Christi Baking Co., LLC TX -
Flowers Baking Co. of Denton, LLC TX 10/19/2004 -
Flowers Baking Co. of El Paso, LLC TX 10/19/2004 NM-October 18, 2004
CO-October 19, 2004
Flowers Baking Co. of Houston, LLC TX 10/19/2004 -
Flowers Baking Co. of San Antonio, LLC TX 10/19/2004 -
Flowers Baking Co. of Texas, LLC TX 10/19/2004 -
Leeland Baking Co., LLC TX 10/19/2004 -
San Antonio Baking Co., LLC TX 10/19/2004 -
E-1-25
EXHIBIT E-2
October 29, 2004
To the Lenders and the Agents
Referred to Below
c/o Deutsche Bank AG, New York Branch
60 Wall Street
New York, New York 10005
Re: Flowers Foods, Inc.
Ladies/Gentlemen:
I am General Counsel for Flowers Foods, Inc., a Georgia corporation (the
"Company"), and special counsel for the directly and indirectly wholly owned
subsidiaries of the Company listed on Schedule 1 to this opinion letter (each,
individually, a "Subco," and collectively, the "Subcos"), in connection with the
Credit Agreement, dated as of October 24, 2003, and amended and restated as of
October 29, 2004 (the "Financing Agreement"), among the Company, the financial
institutions listed on the signature pages thereof (the "Lenders"), and Deutsche
Bank AG, New York Branch, as administrative agent under the Financing Agreement
(in such capacity, the "Agent"). The Company and the Subcos are sometimes
referred to herein individually as a "Transaction Party" and collectively as the
"Transaction Parties." This opinion letter is delivered to you pursuant to
Section 5.03 of the Financing Agreement. Capitalized terms used herein and not
otherwise defined herein have the meanings assigned to such terms in the
Financing Agreement. With your permission, all assumptions and statements of
reliance herein have been made without any independent investigation or
verification on my part except to the extent, if any, otherwise expressly
stated, and I express no opinion with respect to the subject matter or accuracy
of the assumptions or items upon which I have relied. In preparing this opinion,
I have assumed solely for purposes hereof that the Total Commitment under the
Financing Agreement includes the maximum amount of all Incremental Revolving
Loan Commitments permitted to be requested by the Company pursuant to Section
1.14 of the Financing Agreement.
In connection with the opinions expressed herein, I have examined such
documents, records and matters of law as I have deemed necessary for the
purposes of such opinions. I have examined, among other documents, the
following:
(1) an executed copy of the Financing Agreement;
(2) a copy of each of the Revolving Notes and the Swingline Note
executed and delivered on the date hereof (the "Notes"); and
(3) an executed copy of the Subsidiaries Guaranty, dated as of October
29, 2004 (the "Guaranty"), of the Subcos for the benefit of the
Agent and the Lenders.
E-2-1
The documents referred to in items (1) through (3) above, inclusive, are
referred to herein collectively as the "Documents."
In all such examinations, I have assumed the legal capacity of all natural
persons executing documents, the genuineness of all signatures, the authenticity
of original and certified documents and the conformity to original or certified
copies of all copies submitted to me as conformed or reproduction copies. As to
various questions of fact relevant to the opinions expressed herein, I have
relied upon, and assume the accuracy of, representations and warranties
contained in the Documents and certificates and oral or written statements and
other information of or from representatives of the Transaction Parties and
others and assume compliance on the part of the Transaction Parties with their
covenants and agreements contained therein. In connection with the opinions
expressed in the first sentence of paragraph (a) below, I have relied solely
upon certificates of public officials as to the factual matters set forth
therein and have assumed that such public officials have performed their
statutory and regulatory duties with respect to the issuance of such
certificates. With respect to the opinions expressed in clause (i) in paragraph
(a) below my opinions as to the business activities and properties of the
Transaction Parties are limited to only those laws and regulations that, in my
experience, are normally applicable to transactions of the type contemplated by
the Documents (including, without limitation, the form of the Incremental
Revolving Loan Commitment Agreement attached to the Financing Agreement as
Exhibit L).
Based upon the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, I am of the opinion that:
(a) Each Transaction Party is (x) a corporation or limited liability
company, as the case may be, in good standing under the laws of the state of its
organization, and (y) authorized or qualified to do business and is in good
standing as a foreign corporation or limited liability company, as the case may
be, in the case of this clause (y), in each jurisdiction, and as of the dates,
listed on Exhibit A hereto. Each Transaction Party has the corporate or limited
liability company, as the case may be, power and authority (i) to own its
properties and conduct its business, (ii) to enter into and to incur and perform
its obligations under the Documents to which it is a party, and (iii) to enter
into and incur and perform its obligations under each Incremental Revolving Loan
Commitment Agreement to which it becomes a party, if any.
(b) The execution and delivery to the Agent and the Lenders by each
Transaction Party of the Documents to which it is a party and each Incremental
Revolving Loan Commitment Agreement to which it may become a party, if any, and
the performance by such Transaction Party of its obligations thereunder (i) have
been duly authorized by all necessary corporate and shareholder, or limited
liability company and member, as the case may be, action in respect of such
Transaction Party and (ii) do not contravene any provision of the Certificate or
Articles of Incorporation, Organization, or Formation or any By-laws, Limited
Liability Company Agreement, Limited Liability Company Declaration, or Limited
Liability Company Operating Agreement, as applicable, of such Transaction Party.
The opinions set forth above are subject to the following qualifications
and limitations:
E-2-2
(A) I am a member of the Bars of the States of Georgia, Alabama and
Florida and in rendering the foregoing opinions, my examination of matters of
law has been limited to the laws of the States of Alabama and Florida and the
federal laws of the United States of America with respect to those Subcos
organized and existing under the laws of the States of Alabama and Florida. I do
not hold myself out as being conversant with the laws of any jurisdiction other
than those of the States of Alabama and Florida. With respect to those Subcos
organized and existing under the laws of states other than the States of Alabama
and Florida, the foregoing opinions are based solely upon my review of the
generally available compilations of the general corporate statutes or limited
liability statutes, as the case may be, of such jurisdictions.
(B) My opinions are limited to those expressly set forth herein, and I
express no opinions by implication.
The opinions expressed herein are made as of the date of this letter and
are based on the facts and circumstances existing, and the law in effect in the
applicable jurisdictions, on the date hereof. The opinions expressed herein are
solely for the benefit of the addressees hereof and of any other person or
entity becoming a Lender or Agent under the Financing Agreement, in each case
above, in connection with the transaction referred to herein and may not be
relied on by such addressees or such other person or entity for any other
purpose or in any manner or for any purpose by any other person or entity.
Very truly yours,
E-2-3
SCHEDULE 1
FLOWERS FOODS, INC. SUBSIDIARIES
(excluding GA, DE, TX and Mexico)
ENTITY STATE OF ORGANIZATION
------ ---------------------
Bailey Street Bakery, LLC AL
Flowers Bakery of Montgomery, LLC AL
Flowers Baking Co. of Birmingham, LLC(1) AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, LLC AR
Flowers Baking Co. of Texarkana, LLC AR
Shipley Baking Company, LLC AR
Flowers Baking Co. of Bradenton, LLC FL
Flowers Baking Co. of Florida, LLC FL
Flowers Baking Co. of Jacksonville, LLC FL
Flowers Baking Co. of Miami, LLC FL
Flowers Bakery of London, LLC KY
Flowers Baking Co. of Baton Rouge, LLC LA
Flowers Baking Co. of Lafayette, LLC LA
Flowers Baking Co. of New Orleans, LLC LA
Flowers Baking Co. of Jamestown, LLC NC
Flowers Frozen Desserts of Pembroke, LLC NC
Franklin Baking Company, LLC NC
Flowers Frozen Desserts of Stilwell, LLC OK
Flowers Specialty Brands, Inc. SC
Flowers Frozen Desserts of Spartanburg, LLC SC
Flowers Bakery Distributors, Inc. TN
Flowers Bakery of Cleveland, LLC TN
Flowers Bakery of Crossville, LLC TN
Flowers Baking Co. of Memphis, LLC TN
Flowers Baking Co. of Morristown, LLC TN
Flowers Baking Co. of Nashville, LLC TN
West Tennessee Baking Co., LLC TN
- ----------------
(1) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
entity, none of which have yet been changed to reflect the new name.
E-2-4
ENTITY STATE OF ORGANIZATION
------ ---------------------
Flowers Baking Co. of Lynchburg, LLC VA
Flowers Baking Co. of Norfolk, LLC VA
Flowers Baking Co. of West Virginia, LLC WV
Storck Baking Company, LLC WV
The Donut House, LLC WV
E-2-5
EXHIBIT A
DATE OF GOOD DATE OF GOOD
STANDING CERTIFICATE STANDING CERTIFICATE
FROM JURISDICTION OF FROM FOREIGN
ENTITY STATE OF ORGANIZATION FORMATION JURISDICTIONS
------ --------------------- -------------------- ---------------------
Flowers Foods, Inc. GA 10/19/2004 -
Bailey Street Bakery, LLC AL 10/19/2004 GA-October 19, 2004
Flowers Bakery of Montgomery, LLC AL 10/19/2004 -
Flowers Baking Co. of Birmingham, LLC(2) AL 10/19/2004 AR-October 19, 2004
FL-October 18, 2004
GA-October 19, 2004
LA-October 18, 2004
MS-October 18, 2004
NC-October 20, 2004
SC-October 19, 2004
TN-October 22, 2004
TX-October 19, 2004
VA-October 20, 2004
WV-October 18, 2004
Flowers Baking Co. of Opelika, LLC AL 10/19/2004 GA-October 19, 2004
Flowers Baking Co. of Tuscaloosa, LLC AL 10/19/2004 MS-October 18, 2004
TN-October 18, 2004
Flowers Baking Co. of Batesville, LLC AR 10/19/2004 MO-October 20, 2004
TN-October 18, 2004
KY-October 20, 2004
MS-October 18, 2004
Flowers Baking Co. of Pine Bluff, LLC AR 10/19/2004 -
Flowers Baking Co. of Texarkana, LLC AR 10/19/2004 -
Shipley Baking Company, LLC AR 10/19/2004 OK-October 18, 2004
MO-October 20, 2004
Flowers Baking Co. of Bradenton, LLC FL 10/18/2004 -
Flowers Baking Co. of Florida, LLC FL 10/18/2004 -
Flowers Baking Co. of Jacksonville, LLC FL 10/18/2004 GA-October 19, 2004
SC-October 19, 2004
Flowers Baking Co. of Miami, LLC FL 10/18/2004 -
Flowers Bakery of London, LLC KY 10/20/2004 -
Flowers Baking Co. of Baton Rouge, LLC LA 10/18/2004 MS-October 18, 2004
- --------------------
(2) On or about October 19, 2004, the name of this entity was changed from
FLOWERS BAKERY OF BIRMINGHAM, LLC, to FLOWERS BAKING CO. OF BIRMINGHAM,
LLC. This entity is qualified in eleven other jurisdictions as a foreign
entity, none of which have yet been changed to reflect the new name.
E-2-6
Flowers Baking Co. of Lafayette, LLC LA 10/18/2004 -
Flowers Baking Co. of New Orleans, LLC LA 10/18/2004 AL-October 19, 2004
MS-October 18, 2004
Flowers Baking Co. of Jamestown, LLC NC 10/20/2004 SC-October 19, 2004
Flowers Frozen Desserts of Pembroke, LLC NC 10/20/2004 -
Franklin Baking Company, LLC NC 10/20/2004 SC-October 19, 2004
VA-October 19, 2004
Flowers Frozen Desserts of Stilwell, LLC OK 10/18/2004 -
Flowers Specialty Brands, Inc. SC 10/19/2004 -
Flowers Frozen Desserts of Spartanburg, LLC SC 10/19/2004 -
Flowers Bakery Distributors, Inc. TN 10/18/2004 -
Flowers Bakery of Cleveland, LLC TN 10/18/2004 -
Flowers Bakery of Crossville, LLC TN 10/18/2004 -
Flowers Baking Co. of Memphis, LLC TN 10/18/2004 -
Flowers Baking Co. of Morristown, LLC TN 10/18/2004 SC-October 19, 2004
NC-October 20, 2004
VA-October 20, 2004
Flowers Baking Co. of Nashville, LLC TN 10/22/2004 KY-October 20, 2004
West Tennessee Baking Co., LLC TN 10/22/2004 AR-October 19, 2004
KY-October 22, 2004
MS-October 18, 2004
Flowers Baking Co. of Lynchburg, LLC VA 10/20/2004 MD-October 19, 2004
Flowers Baking Co. of Norfolk, LLC VA 10/20/2004 NC-October 20, 2004
Flowers Baking Co. of West Virginia, LLC WV 10/18/2004 KY-October 22, 2004
VA-October 20, 2004
OH-October 20, 2004
Storck Baking Company, LLC WV 10/18/2004 OH-October 20, 2004
The Donut House, LLC WV 10/18/2004 -
E-2-7
EXHIBIT F
OFFICERS' CERTIFICATE
I, the undersigned, [Authorized Representative] of [Name of Credit Party],
a corporation organized and existing under the laws of the State of _________
(the "Company"), do hereby certify on behalf of the Company that:
1.____________This Certificate is furnished pursuant to Section [5.02]
[5.04(a)] of the Credit Agreement, dated as of October 24, 2003 and amended and
restated as of October 29, 2004, among Flowers Foods, Inc. [the Company],
certain financial institutions from time to time party thereto, and Deutsche
Bank AG, New York Branch, as Administrative Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in this
Certificate shall have the meanings set forth in the Credit Agreement.
2.____________The following named individuals are elected officers of the
Company, each of which holds the office of the Company set forth opposite his
name as of the date hereof. The signature written opposite the name and title of
each such officer is his genuine signature.
Name(1) Office Signature
------- ------ ---------
_________________ _________________ _________________
_________________ _________________ _________________
_________________ _________________ _________________
3. Attached hereto as Annex A is a certified copy of the [Certificate of
Incorporation] [Articles of Incorporation] [Certificate of Formation] of the
Company, as filed in the Office of the Secretary of State of the State of
_______ on ___________, ____, together with all amendments thereto adopted
through the date hereof.
4. Attached hereto as Annex B is a true and correct copy of the [By-Laws]
[Limited Liability Company Agreement] [Partnership Agreement] of the Company
together with all amendments thereto adopted through the date hereof which
[were] [was] duly adopted and [are] [is] in full force and effect on the date
hereof.
5. Attached hereto as Annex C is a true and correct copy of resolutions
which were duly adopted on __________, ____ [by unanimous written consent of the
Board of Directors of the Company] [by a meeting of the Board of Directors of
the Company at which a quorum was present and acting throughout], and said
resolutions have not been rescinded, amended or
- -------------------
(1) Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this Certificate or related documentation.
F-1
modified. Except as attached hereto as Exhibit C, no resolutions have been
adopted by the Board of Directors of the Company which deal with the execution,
delivery or performance of any of the Credit Documents to which the Company is
party.
[6.On the date hereof, all of the applicable conditions set forth in
Sections 5.07, 5.08, 5.09, 5.12 and 6.02 of the Credit Agreement have been
satisfied.](2)
[6.][7.] On the date hereof, the representations and warranties contained
in the Credit Agreement and in the other Credit Documents are true and correct
in all material respects with the same effect as though such representations and
warranties had been made on the date hereof, both before and after giving effect
to the incurrence of the Loans on the date hereof and the application of the
proceeds thereof, unless stated to relate to a specific earlier date, in which
case such representations and warranties were true and correct in all material
respects as of such earlier date.
[7.][8.] On the date hereof, no Default or Event of Default has occurred
and is continuing or would result from the incurrence of the Loans on the date
hereof or from the application of the proceeds thereof.
[8.][9.] There is no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ____ ___,
2004
[NAME OF CREDIT PARTY]
By ____________________________
Name:
Title:
- ----------------------
(2) Insert only in Officers' Certificate of the Borrower.
F-2
I, the undersigned, [Authorized Representative] of the Company, do hereby
certify on behalf of the Company that:
1. [Name of Person making above certifications] is the duly elected and
qualified [Authorized Representative] of the Company and the signature above is
his genuine signature.
2. The certifications made by [name of Person making above certifications]
on behalf of the Company in Items 2, 3, 4, 5, and [7][9] above are true and
correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_________, 200__.
[NAME OF CREDIT PARTY]
By ____________________________
Name:
Title:
F-3
EXHIBIT G
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of October 29, 2004 (as amended, modified
or supplemented from time to time, this "Guaranty"), made by each of the
undersigned guarantors (each a "Guarantor," and together with any other entity
that becomes a guarantor hereunder pursuant to Section 26 hereof, the
"Guarantors"). Except as otherwise defined herein, capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, Flowers Foods, Inc., various financial institutions from time to
time party thereto (the "Lenders"), and Deutsche Bank AG, New York Branch, as
Administrative Agent (together with any successor administrative agent, the
"Administrative Agent") are parties to that certain Credit Agreement, dated as
of October 24, 2003 and amended and restated as of October 29, 2004 (as so
amended and restated and as the same may be further amended, restated, modified
and/or supplemented from time to time, the "Credit Agreement"), providing for
the making of Loans to, and the issuance of, and participation in, Letters of
Credit for the account of, the Borrower as contemplated therein (the Lenders and
the Administrative Agent are herein called the "Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of the
Borrower;
WHEREAS, each Guarantor is required to execute and deliver this Guaranty
pursuant to the Credit Agreement; and
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Creditors and hereby covenants and agrees with each Creditor
as follows:
1. Each Guarantor, jointly and severally, irrevocably, absolutely and
unconditionally guarantees: to the Lender Creditors the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of (x)
the principal of, premium, if any, and interest on the Notes issued by, and the
Loans made to, the Borrower under the Credit Agreement, and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit issued under
the Credit Agreement and (y) all other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due), liabilities and indebtedness owing by the Borrower to the Lender
Creditors under the Credit Agreement and each other Credit Document to which the
Borrower is a party (including, without limitation, indemnities, Fees and
interest thereon including, in each case, any interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceeding
at the rate provided for in the Credit Agreement, whether or not such interest
is an allowed claim in any such proceeding), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement and
any such other Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions and agreements contained in all such
Credit Documents (all such principal, premium, interest, liabilities,
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indebtedness and obligations being herein collectively called the "Guaranteed
Obligations." Each Guarantor understands, agrees and confirms that the Creditors
may enforce this Guaranty up to the full amount of the Guaranteed Obligations
against such Guarantor without proceeding against any other Guarantor, the
Borrower, or under any other guaranty covering all or a portion of the
Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally, unconditionally,
absolutely and irrevocably, guarantees the payment of any and all Guaranteed
Obligations whether or not due and payable by the Borrower upon the occurrence
of any of the events specified in Section 10.05 of the Credit Agreement, and
unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Creditors, or order, on demand, in Dollars. This
Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary, absolute, joint
and several, and unconditional and is exclusive and independent of any security
for or other guaranty of the indebtedness of the Borrower whether executed by
such Guarantor, any other Guarantor, any other guarantor or by any other party,
and the liability of each Guarantor hereunder shall not be affected or impaired
by any circumstance or occurrence whatsoever, including, without limitation: (a)
any direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations,
(c) any payment on or in reduction of any such other guaranty or undertaking,
(d) any dissolution, termination or increase, decrease or change in personnel by
the Borrower, (e) any payment made to any Creditor on the indebtedness which any
Creditor repays the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Creditors as contemplated in Section 6 hereof or (g) any
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor, the Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or the Borrower and whether or not any other Guarantor, other
guarantor, or the any Borrower be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefits of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this Guaranty and
notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action by the Administrative Agent or
any other Creditor against, and any other notice to, any party liable thereon
(including such Guarantor, any other Guarantor, any other guarantor or the
Borrower).
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6. Any Creditor may at any time and from time to time without the consent
of, or notice to, any Guarantor, without incurring responsibility to such
Guarantor, and without impairing or releasing the obligations of such Guarantor
hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or
change, increase or extend the time of payment of, renew or
alter, any of the Guaranteed Obligations (including any
increase or decrease in the rate of interest thereon or the
principal amount thereof), any security therefor, or any
liability incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair,
realize upon or otherwise deal with in any manner and in any
order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party, any Subsidiary thereof or
otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors,
other guarantors, the Borrower, or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof
or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not)
of the Borrower to creditors of the Borrower other than the
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Creditors
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Credit Documents or any of the
instruments or agreements referred to therein, or otherwise
amend, modify or supplement any of the Credit Documents or any
of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this Guaranty
which may deprive such Guarantor of its right to subrogation
against the Borrower to recover full indemnity for any
payments made pursuant to this Guaranty; and/or
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(i) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable
discharge of such Guarantor from its liabilities under this
Guaranty.
7. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of any
Creditor in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Creditor would otherwise have. No notice to or demand on any Guarantor
in any case shall entitle such Guarantor to any other further notice or demand
in similar or other circumstances or constitute a waiver of the rights of any
Creditor to any other or further action in any circumstances without notice or
demand. It is not necessary for any Creditor to inquire into the capacity or
powers of the Borrower or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
8. Any indebtedness of the Borrower now or hereafter held by any Guarantor
is hereby subordinated to the indebtedness of the Borrower to the Creditors, and
such indebtedness of the Borrower to any Guarantor, if the Administrative Agent,
after the occurrence and during the continuance of an Event of Default, so
requests, shall be collected, enforced and received by such Guarantor as trustee
for the Creditors and be paid over to the Creditors on account of the
indebtedness of the Borrower to the Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Without limiting the generality of the foregoing,
each Guarantor hereby agrees with the Creditors that it will not exercise any
right of subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash (other than contingent indemnification obligations that are not then due
and payable).
9. (a) Each Guarantor waives any right (except as shall be required by
applicable law and cannot be waived) to require the Creditors to: (i) proceed
against the Borrower, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party; (ii) proceed against or exhaust any security
held from the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; or (iii) pursue any other remedy in
the Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party other than payment in
full in cash of the Guaranteed Obligations in accordance with the terms thereof,
including, without limitation, any defense based on or arising out of the
disability of the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full in cash of
the Guaranteed Obligations. The Creditors may, at their election, foreclose on
any security held by the Administrative Agent, or the other Creditors by one or
more judicial or nonjudicial sales, whether or not every aspect of any such
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sale is commercially reasonable, or exercise any other right or remedy the
Creditors may have against the Borrower, or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in full
in cash in accordance with the terms thereof. Each Guarantor waives any defense
arising out of any such election by the Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Borrower, or any other party
or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Creditors shall have no duty
to advise any Guarantor of information known to them regarding such
circumstances or risks.
10. Each Creditor agrees (by its acceptance of the benefits of this
Guaranty) that this Guaranty may be enforced only by the action of the
Administrative Agent acting upon the instructions of the Required Lenders (or,
after the date on which all Credit Document Obligations have been paid in full,
the holders of at least the majority of the outstanding Other Obligations) and
that no other Creditor shall have any right individually to seek to enforce or
to enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent or, after all the Credit
Document Obligations have been paid in full (other than contingent
indemnification obligations that are not then due and payable), by the holders
of at least a majority of the outstanding Other Obligations, as the case may be,
for the benefit of the Creditors upon the terms of this Guaranty. Each Creditor
further agrees (by its acceptance of the benefits of this Guaranty) that this
Guaranty may not be enforced against any director, officer, employee, partner,
member or stockholder of any Guarantor (except to the extent such partner,
member or stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to continue to make Loans to, and issue
Letters of Credit for the account of, the Borrower pursuant to the Credit
Agreement, each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, limited liability company or partnership, as the
case may be, in good standing under the laws of the
jurisdiction of its organization of formation, (ii) has the
corporate, limited liability company or partnership power and
authority, as the case may be, to own its property and assets
and to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly qualified and
is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business requires such
qualifications, except for failures to be so qualified that,
individually or in the aggregate, have not had, and could not
reasonably be expected to have, a Material Adverse Effect.
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(b) Such Guarantor has the corporate, limited liability company or
partnership power and authority, as the case may be, to
execute, deliver and perform the terms and provisions of this
Guaranty and each other Credit Document to which it is party
and has taken all necessary corporate, limited liability
company or partnership action, as the case may be, to
authorize the execution, delivery and performance by it of
this Guaranty and each such other Credit Document. Such
Guarantor has duly executed and delivered this Guaranty and
each other Credit Document to which it is party, and this
Guaranty and each such other Credit Document constitutes the
legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to the extent
that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to
which it is a party, nor compliance by it with the terms and
provisions hereof and thereof, (i) will contravene any
provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict with
or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to
create or impose) any Lien (other than Permitted Liens) upon
any of the material properties or assets of such Guarantor or
any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other material agreement, contract or
instrument, to which such Guarantor or any of its Subsidiaries
is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any
provision of the Certificate or Articles of Incorporation or
By-Laws (or equivalent organizational documents) of such
Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and
performance of this Guaranty by such Guarantor or any other
Credit Document to which such Guarantor is a party or (ii) the
legality, validity, binding effect or enforceability of this
Guaranty or any other Credit Document to which such Guarantor
is a party.
(e) There are no actions, suits or proceedings pending or,
threatened in writing (i) with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party, or
(ii) with respect to such Guarantor
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that, individually or in the aggregate, has had, or could
reasonably be expected to have, a Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after the Restatement
Effective Date and until the termination of the Total Commitment, and until such
time as no Note or Letter of Credit remains outstanding and all Guaranteed
Obligations have been paid in full (other than contingent indemnification
obligations that are not then due and payable), such Guarantor will comply, and
will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 8 and 9 of the Credit
Agreement, and will take, or will refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that it is not in
violation of any provision, covenant or agreement contained in Section 8 or 9 of
the Credit Agreement, and so that no Default or Event of Default, is caused by
the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay all
reasonable out-of-pocket costs and expenses of each Creditor in connection with
the enforcement of this Guaranty and of the Administrative Agent in connection
with any amendment, waiver or consent relating hereto (including in each case,
without limitation, the reasonable fees and disbursements of counsel employed by
each Creditor).
14. This Guaranty shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of the Creditors and their successors
and assigns.
15. Neither this Guaranty nor any provision hereof may be changed, waived,
discharged or terminated except with the written consent of each Guarantor
directly affected thereby and with the written consent of either the Required
Lenders (or to the extent required by Section 13.12 of the Credit Agreement,
each Lender) at all times prior to the time on which the Total Commitment has
been terminated and all Credit Document Obligations have been paid in full.
16. Each Guarantor acknowledges that an executed (or conformed) copy of
each of the Credit Documents, has been made available to its principal executive
officers and such officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted under applicable
law (including, without limitation, Section 151 of the New York Debtor and
Secured Creditor Law) and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (such term to mean
and include any "Event of Default" as defined in the Credit Agreement each
Creditor is hereby authorized, at any time or from time to time, without notice
to any Guarantor or to any other Person, any such notice being expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by Creditor
(including without limitation, by branches and agencies of such Creditor
wherever located) to or for the credit or the account of such Guarantor, against
and on account of the obligations and liabilities of such Guarantor to such
Creditor under this Guaranty, irrespective of whether or not such Creditor shall
have made any demand hereunder and although said obligations, liabilities,
deposits or claims, or any of them, shall be contingent or unmatured.
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18. All notices, requests, demands or other communications pursuant hereto
shall be deemed to have been duly given or made when delivered to the Person to
which such notice, request, demand or other communication is required or
permitted to be given or made under this Guaranty, addressed to such party at
(i) in the case of any Lender Creditor, as provided in the Credit Agreement, and
(ii) in the case of any Guarantor, c/o Flowers Foods, Inc., 1919 Flowers Circle,
Thomasville, GA 31757, Telephone: (229) 227-2278, Facsimile No.: (229) 225-3808
Attention: Kirk L. Tolbert or in any case at such other address as any of the
Persons listed above may hereafter notify the others in writing.
19. If claim is ever made upon any Creditor for repayment or recovery of
any amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such
claimant (including the Borrower) then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
upon such Guarantor, notwithstanding any revocation hereof or other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE CREDITORS AND
OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Guaranty or any other Credit Document to which any Guarantor is
a party may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York Branch, in each case
located in the County of New York Branch, and, by execution and delivery of this
Guaranty, each Guarantor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Guarantor hereby further irrevocably waives any claim that any such
court lacks personal jurisdiction over such Guarantor, and agrees not to plead
or claim in any legal action or proceeding with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party brought in any of the
aforesaid courts that any such court lacks personal jurisdiction over such
Guarantor. Each Guarantor further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such Guarantor at its address set forth in Section 18 hereof, such service to
become effective 30 days after such mailing. Each Guarantor hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document to which such Guarantor is a party that such
service of process was in any way invalid or ineffective. Nothing herein shall
affect the right of any of the Creditors to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection which it may now or hereafter have to
the laying of venue of
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any of the aforesaid actions or proceedings arising out of or in connection with
this Guaranty or any other Credit Document to which such Guarantor is a party
brought in the courts referred to in clause (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) EACH GUARANTOR AND EACH CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more Guarantors
is sold or otherwise disposed of or liquidated in compliance with the
requirements of the Credit Agreement (or such sale or other disposition has been
approved in writing by the Required Lenders (or all the Lenders if required by
Section 13.12 of the Credit Agreement)), such Guarantor shall upon consummation
of such sale or other disposition (except to the extent that such sale or
disposition is to the Borrower or another Subsidiary thereof) be released from
this Guaranty automatically and without further action and this Guaranty shall,
as to each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more Persons that
own, directly or indirectly, all of the capital stock of any Guarantor shall be
deemed to be a sale of such Guarantor for the purposes of this Section 21).
22. At any time a payment in respect of the Guaranteed Obligations is made
under this Guaranty, the right of contribution of each Guarantor against each
other Guarantor shall be determined as provided in the immediately following
sentence, with the right of contribution of each Guarantor to be revised and
restated as of each date on which a payment (a "Relevant Payment") is made on
the Guaranteed Obligations under this Guaranty. At any time that a Relevant
Payment is made by a Guarantor that results in the aggregate payments made by
such Guarantor in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment exceeding such Guarantor's Contribution Percentage
(as defined below) of the aggregate payments made by all Guarantors in respect
of the Guaranteed Obligations to and including the date of the Relevant Payment
(such excess, the "Aggregate Excess Amount"), each such Guarantor shall have a
right of contribution against each other Guarantor who has made payments in
respect of the Guaranteed Obligations to and including the date of the Relevant
Payment in an aggregate amount less than such other Guarantor's Contribution
Percentage of the aggregate payments made to and including the date of the
Relevant Payment by all Guarantors in respect of the Guaranteed Obligations (the
aggregate amount of such deficit, the "Aggregate Deficit Amount") in an amount
equal to (x) a fraction the numerator of which is the Aggregate Excess Amount of
such Guarantor and the denominator of which is the Aggregate Excess Amount of
all Guarantors multiplied by (y) the Aggregate Deficit Amount of such other
Guarantor. A Guarantor's right of contribution pursuant to the preceding
sentences shall arise at the time of each computation, subject to adjustment
pursuant to the preceding sentences; provided that no Guarantor may take any
action to enforce such right until the Guaranteed Obligations have been
irrevocably paid in full in cash, it being expressly recognized and agreed by
all parties hereto that any Guarantor's right of contribution arising pursuant
to this Section 22
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against any other Guarantor shall be expressly junior and subordinate to such
other Guarantor's obligations and liabilities in respect of the Guaranteed
Obligations and any other obligations owing under this Guaranty. As used in this
Section 22: (i) each Guarantor's "Contribution Percentage" shall mean the
percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of
such Guarantor by (y) the aggregate Adjusted Net Worth of all Guarantors; (ii)
the "Adjusted Net Worth" of each Guarantor shall mean the greater of (x) the Net
Worth (as defined below) of such Guarantor and (y) zero; and (iii) the "Net
Worth" of each Guarantor shall mean the amount by which the fair salable value
of such Guarantor's assets on the date of any Relevant Payment exceeds its
existing debts and other liabilities (including contingent liabilities, but
without giving effect to any Guaranteed Obligations arising under this Guaranty)
on such date. All parties hereto recognize and agree that, except for any right
of contribution arising pursuant to this Section 22, each Guarantor who makes
any payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations have been irrevocably paid in
full in cash (other than contingent indemnification obligations that are not
then due and payable). Each of the Guarantors recognizes and acknowledges that
the rights to contribution arising hereunder shall constitute an asset in favor
of the party entitled to such contribution. In this connection, each Guarantor
has the right to waive its contribution right against any Guarantor to the
extent that after giving effect to such waiver such Guarantor would remain
solvent, in the determination of the Required Lenders.
23. Each Guarantor and each Creditor (by its acceptance of the benefits of
this Guaranty) hereby confirms that it is its intention that this Guaranty not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, each
Guarantor and each Creditor (by its acceptance of the benefits of this Guaranty)
hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving effect to such
maximum amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and other Guarantors, result in the Guaranteed
Obligations of such Guarantor in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Guarantors and the Administrative
Agent.
25. All payments made by any Guarantor hereunder will be made without
setoff, counterclaim or other defense and on the same basis as payments are made
by the Borrower under Sections 4.03 and 4.04 of the Credit Agreement.
26. It is understood and agreed that any Subsidiary of any Borrower that
is required to execute a counterpart of this Guaranty after the date hereof
pursuant to the Credit Agreement
G-10
shall become a Guarantor hereunder by executing and delivering a counterpart
hereof (or an assumption agreement or a Joinder Agreement in respect of) to the
Administrative Agent.
* * *
G-11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
[INSERT SUBSIDIARY GUARANTORS]
By: ___________________________
Name:
Title:
Accepted and Agreed to:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
G-12
Flowers Baking Co. of Baton Rouge, LLC
Flowers Baking Co. of Lafayette, LLC
Flowers Baking Co. of New Orleans, LLC
Flowers Baking Co. of Jamestown, LLC
Flowers Frozen Desserts of Pembroke, LLC
Franklin Baking Company, LLC
Flowers Frozen Desserts of Stilwell, LLC
Flowers Specialty Brands, Inc.
Flowers Frozen Desserts of Spartanburg, LLC
Flowers Bakery Distributors, Inc.
Flowers Bakery of Cleveland, LLC
Flowers Bakery of Crossville, LLC
Flowers Baking Co. of Memphis, LLC
Flowers Baking Co. of Morristown, LLC
Flowers Baking Co. of Nashville, LLC
West Tennessee Baking Co., LLC
Austin Baking Co., LLC
Corpus Christi Baking Co., LLC
Flowers Baking Co. of Denton, LLC
Flowers Baking Co. of El Paso, LLC
Flowers Baking Co. of Houston, LLC
Flowers Baking Co. of San Antonio, LLC
Flowers Baking Co. of Texas, LLC
Leeland Baking Co., LLC
San Antonio Baking Co., LLC
Flowers Baking Co. of Lynchburg, LLC
Flowers Baking Co. of Norfolk, LLC
Flowers Baking Co. of West Virginia, LLC
Storck Baking Company, LLC
The Donut House, LLC
By: ________________________________________
Name:
Title:
G-13
Accepted and Agreed to:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
G-14
EXHIBIT H
SOLVENCY CERTIFICATE
I, the undersigned, the Chief Financial Officer of Flowers Foods, Inc., a
Georgia corporation (the "Company"), do hereby certify in such capacity and on
behalf of the Company that:
1. This Certificate is furnished to the Agents and each of the Lenders
pursuant to Section 5.11(a) of the Credit Agreement, dated as of October 24,
2003 and amended and restated as of October 29, 2004, among the Company, the
lenders party thereto from time to time (the "Lenders"), and Deutsche Bank AG,
New York Branch, as Administrative Agent (such Credit Agreement, as in effect on
the date of this Certificate, being herein called the "Credit Agreement").
Unless otherwise defined herein, capitalized terms used in this Certificate
shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of the
Company on a stand-alone basis and the Company and its Subsidiaries
taken as a whole, would change hands between a willing buyer and a
willing seller, within a commercially reasonable period of time,
each having reasonable knowledge of the relevant facts, with neither
being under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing seller
from an independent willing buyer if the assets of each of the
Company on a stand-alone basis and the Company and its Subsidiaries
taken as a whole, are sold with reasonable promptness under normal
selling conditions in a current market.
(c) "New Financing"
The Indebtedness incurred or to be incurred by the Company and its
Subsidiaries under the Credit Documents (assuming the full
utilization by the Company of the Total Commitment under the Credit
Agreement), after giving effect to the Transaction and all financing
contemplated therewith.
(d) "Stated Liabilities"
The recorded liabilities that would be recorded in accordance with
generally accepted accounting principles ("GAAP") of the Company on
a stand-alone basis, and of the Company and its Subsidiaries taken
as a whole, as of the date hereof after giving effect to
Transaction, determined in accordance with GAAP consistently
applied, together with the amount of all New Financing.
H-1
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities reasonably likely to
result from pending litigation, asserted claims and assessments,
guaranties, uninsured risks and other contingent liabilities of each
of the Company on a stand-alone basis and the Company and its
Subsidiaries taken as a whole, after giving effect to the
Transaction, as identified and explained in terms of their nature
and estimated magnitude by responsible officers of the Company or
any of its Subsidiaries or that have been identified as such by an
officer of the Company or any of its Subsidiaries.
(f) "Will be able to pay its Stated Liabilities and Identified
Contingent Liabilities, as they mature"
For the period from the date hereof through the stated maturity of
all the New Financing, each of the Company on a stand-alone basis
and the Company and its Subsidiaries taken as a whole, will have
sufficient assets and cash flow to pay its Stated Liabilities and
Identified Contingent Liabilities as those liabilities mature or
otherwise become payable.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated maturity of
all the New Financing, each of the Company on a stand-alone basis
and the Company and its Subsidiaries taken as a whole, after
consummation of the Transaction and all Indebtedness being incurred
or assumed and Liens created by the Company and its Subsidiaries in
connection therewith, is a going concern and has sufficient capital
to ensure that it will continue to be a going concern for such
period and to remain a going concern.
3. For purposes of this Certificate, I, other officers of the Company and
its Subsidiaries under my direction and supervision, have performed the
following procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in
Section 7.05 of the Credit Agreement.
(b) I have made inquiries of certain officials of the Company and
its Subsidiaries who have responsibility for financial and
accounting matters regarding the existence and amount of
Identified Contingent Liabilities associated with the
respective businesses of the Company and its Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the
Credit Documents and the respective Schedules and Exhibits
thereto.
(d) With respect to Identified Contingent Liabilities, I:
H-2
1. inquired of certain officials of the Company and its
Subsidiaries who have responsibility for legal,
financial and accounting matters as to the existence and
estimated liability with respect to all contingent
liabilities known to them;
2. confirmed with officers of the Company and its
Subsidiaries that, to the best of such officers'
knowledge, (i) all appropriate items were included in
Stated Liabilities or Identified Contingent Liabilities
and (ii) the amounts relating thereto were the maximum
estimated amount of liabilities reasonably likely to
result therefrom as of the date hereof; and
3. hereby certify that, to the best of my knowledge, all
material Identified Contingent Liabilities that may
arise from any pending litigation, asserted claims and
assessments, guarantees, uninsured risks and other
Identified Contingent Liabilities of the Company and its
Subsidiaries (exclusive of such Identified Contingent
Liabilities to the extent reflected in Stated
Liabilities) (after giving effect to the consummation
the Transaction and the incurrence of all financings in
connection therewith) have been considered in making the
certification set forth in paragraph 4 below, and with
respect to each such Identified Contingent Liability,
the estimable maximum amount of liability with respect
thereto was used in making such certification.
(e) I have made inquiries of certain officers of the Company and
its Subsidiaries who have responsibility for financial
reporting and accounting matters regarding whether they were
aware of any events or conditions that, as of the date hereof,
would cause either the Company on a stand-alone basis or the
Company and its Subsidiaries taken as a whole, in each case
after giving effect to the Transaction and the related
financing transactions (including the incurrence of the New
Financing), to (i) have assets with a Fair Value or Present
Fair Salable Value that are less than the sum of Stated
Liabilities and Identified Contingent Liabilities; (ii) have
Unreasonably Small Capital; or (iii) not be able to pay its
Stated Liabilities and Identified Contingent Liabilities as
they mature or otherwise become payable.
4. Based on and subject to the foregoing, I, in my capacity as the chief
financial officer of the Company, hereby certify on behalf of the Company that,
after giving effect to the Transaction and the related financing transactions
(including the incurrence of the New Financing), it is my informed opinion that
(i) the Fair Value and Present Fair Salable Value of the assets of each of the
Company on a stand-alone basis and the Company and its Subsidiaries taken as a
whole, exceed its Stated Liabilities and Identified Contingent Liabilities; (ii)
neither the Company on a stand-alone basis nor the Company and its Subsidiaries
taken as a whole, has Unreasonably Small Capital; and (iii) each of the Company
on a stand-alone basis and the
H-3
Company and its Subsidiaries taken as a whole, as the case may be, will be able
to pay its Stated Liabilities and Identified Contingent Liabilities, as they
mature or otherwise become payable.
H-4
IN WITNESS WHEREOF, I have hereto set my hand this __ day of ______, 2004.
FLOWERS FOODS, INC.
By _____________________________
Name:
Title:
H-5
EXHIBIT I
ASSIGNMENT
AND
ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment"), is dated as of the
Effective Date set forth below and is entered into by and between the Assignor
identified in item 1 below (the "Assignor") and the Assignee identified in item
2 below (the "Assignee"). Capitalized terms used herein but not defined herein
shall have the meanings given to them in the Credit Agreement identified below,
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 hereto (the "Standard Terms and
Conditions") are hereby agreed to and incorporated herein by reference and made
a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns
to the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, the interest in and to all of the
Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represent the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including Letters of Credit and Swingline Loans) (the "Assigned Interest").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment, without representation or warranty by the
Assignor.
1. Assignor: ____________________________
2. Assignee: ____________________________
3. Credit Agreement: Credit Agreement, dated as of October 24, 2003 and
amended and restated as of October 29, 2004, as so
amended and restated and as the same may be further
amended, restated, supplemented and/or otherwise
modified from time to time, the "Credit Agreement",
among Flowers Foods, Inc., the Lenders party thereto
from time to time, and Deutsche Bank AG, New York
Branch, as Administrative Agent.
I-1
4. Assigned Interest:
Aggregate Amount of Amount of Percentage Assigned
Commitments/Revolving Commitments/Revolving of Commitments/
Loans for all Lenders Loans Assigned Revolving Loans(1)
- --------------------- --------------------- -------------------
$ $
Effective Date ___________, ____, 200__.
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE](2)
By:____________________________ By:____________________________
Name: Name:
Title Title:
Payment Instructions:
_______________________________________
_______________________________________
_______________________________________
Attention: ____________________________
Reference: ____________________________
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
Relationship Contact: _________________
- ----------------------
(1) Set forth, to at least 9 decimals, as a percentage of the Commitments/
Revolving Loans of all Lenders thereunder.
(2) Add additional signature blocks, as needed, if this Form of Assignment and
Assumption Agreement is being used by funds managed by the same or related
investment managers.
I-2
[Consented to and](3) Accepted:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
[Consented to:
- ---------------------
(3) Insert only if assignment is being made pursuant to Section 13.04(b)(y) of
the Credit Agreement.
I-3
FLOWERS FOODS, INC.
By: ______________________________
Name:
Title:](4)
[Consented to:
[Insert signature blocks for each Issuing Lender](5)
- ------------------------
(4) Insert only if (x) assignment is being made pursuant to Section
13.04(b)(y) of the Credit Agreement and (y) no Default or Event of Default
then exists.
(5) Insert only if assignment is being made pursuant to Section 13.04(b)(y) of
the Credit Agreement.
I-4
ANNEX 1
Flowers Foods, Inc.
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Credit
Document or any other instrument or document delivered pursuant thereto, other
than this Assignment, or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Credit Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Credit Documents.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute an
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Transferee under the Credit Agreement, (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.05(a) or 8.01(a) or (b) thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision and (v) if it is organized under the laws of a jurisdiction outside
the United States, attached to this Assignment is any documentation required to
be delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
I-5
2. Payment. From and after the Effective Date, the Administrative Agent
shall make all payments in respect to the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
This Assignment may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment by telecopy shall be effective as delivery of
a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS).
I-6
EXHIBIT J
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to Section
8.01(c) of the Credit Agreement, dated as of October 24, 2003 and amended and
restated as of October 29, 2004 (as so amended and restated and as the same may
be further amended, restated, supplemented and/or modified from time to time,
the "Credit Agreement"), among Flowers Foods, Inc. (the "Borrower"), the lenders
from time to time party thereto, and Deutsche Bank AG, New York Branch, as
Administrative Agent. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.
1. I am the duly elected, qualified and acting __________[Insert title of
the Authorized Representative].
2. I have reviewed and am familiar with the contents of this Compliance
Certificate. The matters set forth herein are true to the best of my knowledge
after due inquiry.
3. I have reviewed the terms of the Credit Agreement and the other Credit
Documents and have made or caused to be made under my supervision a review in
reasonable detail of the transactions and condition of the Borrower and its
Subsidiaries during the accounting period covered by the financial statements
attached hereto as ANNEX 1 (the "Financial Statements"). Such review did not
disclose the existence during or at the end of the accounting period covered by
the Financial Statements, and I have no knowledge of the existence, as of the
date of this Compliance Certificate, of any condition or event which constitutes
a Default or an Event of Default [, except as set forth below].
4. Attached hereto as ANNEX 2 are the computations showing (in reasonable
detail) compliance with the covenants specified therein.
5. Attached hereto as ANNEX 3 is the information required by Section
8.01(c)(ii) of the Credit Agreement as of the date of this Compliance
Certificate and the Borrower and its Subsidiaries have taken all actions
required to be taken by them pursuant to Section 8.11 of the Credit Agreement
with respect to any new Subsidiaries in connection with the information set
forth on ANNEX 3.
IN WITNESS WHEREOF, I have executed this Compliance Certificate this ____
day of ______.
FLOWERS FOODS, INC.
By: ______________________________
Name:
Title:
J-1
ANNEX 1
[Applicable Financial Statements To Be Attached]
J-2
ANNEX 2
The information described herein is as of _________, ____ (the
"Computation Date") and, except as otherwise indicated below, pertains to the
period from __________ __, ____ to _______ __, ____ (the "Test Period").
Negative and Financial Covenants
A. Liens (Section 9.01)
a. Liens included in 9.01(xii) basket outstanding
as of the Computation Date (other than Liens in
respect of secured Permitted Subsidiary
Indebtedness) $_______
b. Permitted Subsidiary Indebtedness outstanding
as of the Computation Date $_______
c. The sum of line a and line b $_______
d. Maximum Amount allowable $75,000,000
B. Financial Covenants
1. Leverage Ratio (Section 9.07)
a. Consolidated Indebtedness(1) as at the
Computation Date $_______
b. Consolidated EBITDA(2) for the Test Period $_______
c. Ratio of line a to line b _____:1.00
d. Maximum Covenant Level _____:1.00
- -------------------
(1) Attach hereto in reasonable detail the calculations required to arrive at
Consolidated Indebtedness.
(2) Attach hereto in reasonable detail the calculations to arrive at
Consolidated EBITDA.
J-3
2. Consolidated Interest Coverage
Ratio (Section 9.08)
a. Consolidated EBITDA for the Test Period $_______
b. Consolidated Interest Expense(3) for the
Test Period $_______
c. Ratio of line a to line b _____:1.00
d. Minimum Covenant Level _____:1.00
- -------------------
(3) Attached hereto in reasonable detail the calculations required to arrive
at Consolidated Interest Expense.
J-4
EXHIBIT K
JOINDER AGREEMENT
THIS JOINDER IN SUBSIDIARIES GUARANTY, (this "Joinder") is executed as of
[DATE] by [NAME OF NEW SUBSIDIARY], a __________ [corporation] [limited
liability company] [partnership] ("Joining Party"), and delivered to DEUTSCHE
BANK AG, NEW YORK BRANCH, as Administrative Agent, for the benefit of the Lender
Creditors (as defined below). Except as otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement (as defined below) shall
be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Flowers Foods, Inc. (the "Borrower"), the lenders from time to
time party thereto (the "Lenders"), and Deutsche Bank AG, New York Branch, as
Administrative Agent (together with any successor Administrative Agent, the
"Administrative Agent"), have entered into a Credit Agreement, dated as of
October 24, 2003 and amended and restated as of October 29, 2004 (as so amended
and restated and as the same may be further amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower, all as contemplated therein
(the Lenders and the Administrative Agent are herein called the "Creditors");
WHEREAS, the Joining Party is a direct or indirect Subsidiary of the
Borrower and desires, or is required pursuant to the provisions of the Credit
Agreement, to become a Subsidiary Guarantor under the Subsidiaries Guaranty; and
WHEREAS, the Joining Party will obtain benefits from the incurrence of
Loans by, and the issuance of, and participation in, Letters of Credit for the
account of, the Borrower, in each case pursuant to the Credit Agreement and,
accordingly, desires to execute this Joinder in order to satisfy the
requirements described in the preceding recital;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Joining Party, the receipt and sufficiency of which are hereby
acknowledged, the Joining Party hereby makes the following representations and
warranties to the Creditors and hereby covenants and agrees with each Creditor
as follows:
NOW, THEREFORE, the Joining Party agrees as follows:
1. By this Joinder, the Joining Party becomes a Subsidiary Guarantor for
all purposes under the Subsidiaries Guaranty, pursuant to Section 26 thereof.
2. The Joining Party agrees that, upon its execution hereof, it will
become a Subsidiary Guarantor under the Subsidiaries Guaranty with respect to
all Guaranteed Obligations (as defined in the Subsidiaries Guaranty), and will
be bound by all terms, conditions and duties applicable to a Subsidiary
Guarantor under the Subsidiaries Guaranty and the other Credit Documents.
Without limitation of the foregoing, and in furtherance thereof, the Joining
Party unconditionally, absolutely and irrevocably guarantees on a joint and
several basis the due and
K-1
punctual payment and performance of all Guaranteed Obligations (on the same
basis as the other Subsidiary Guarantors under the Subsidiaries Guaranty).
3. Without limiting the foregoing, the Joining Party hereby makes and
undertakes, as the case may be, each covenant, representation and warranty made
by, and as each Subsidiary Guarantor pursuant to Sections 11 and 12 of the
Subsidiaries Guaranty and agrees to be bound by all covenants, agreements and
obligations of a Subsidiary Guarantor pursuant to the Subsidiaries Guaranty and
all other Credit Documents to which it is or becomes a party.
4. This Joinder shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and its successors and assigns,
provided, however, the Joining Party may not assign any of its rights,
obligations or interest hereunder or under any other Credit Document without the
prior written consent of the Administrative Agent or as otherwise permitted by
the Credit Documents. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This Joinder may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Joinder shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Joinder which shall
remain binding on all parties hereto.
5. From and after the execution and delivery hereof by the parties hereto,
this Joinder shall constitute a "Credit Document" for all purposes of the Credit
Agreement and the other Credit Documents.
6. The effective date of this Joinder is [DATE].
* * *
K-2
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly
executed as of the date first above written.
[NAME OF NEW SUBSIDIARY]
By: _____________________________
Name:
Title:
Accepted and Acknowledged by:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
K-3
EXHIBIT L
FORM OF INCREMENTAL
REVOLVING LOAN COMMITMENT AGREEMENT
[Name(s) of Lender(s)]
[Date]
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, Georgia 31757
Attention:
Re: Incremental Revolving Loan Commitment
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of October 24,
2003 and amended and restated as of October 29, 2004 (as so amended and restated
and as the same may be further amended, modified, restated and/or supplemented
from time to time, the "Credit Agreement"), among Flowers Foods, Inc. (the
"Corporation" or "you"), the lenders from time to time party thereto (the
"Lenders"), and Deutsche Bank AG, New York Branch, as Administrative Agent for
such Lenders (in such capacity, the "Administrative Agent"). Unless otherwise
defined herein, capitalized terms used herein shall have the respective meanings
set forth in the Credit Agreement.
Each Lender (each, an "Incremental RL Lender") party to this letter
agreement (this "Agreement") hereby severally agrees to provide the Incremental
Revolving Loan Commitment in the amount set forth opposite its name on Annex I
attached hereto (for each such Incremental RL Lender, its "Incremental Revolving
Loan Commitment"). Each Incremental Revolving Loan Commitment provided pursuant
to this Agreement shall (x) be subject to the terms and conditions set forth in
the Credit Agreement, including Section 1.14 thereof and (y) upon the
effectiveness of this Agreement, increase the Commitment of the respective
Incremental RL Lender under the Credit Agreement as contemplated by Section 1.14
of the Credit Agreement and the definition of Commitment.
Each Incremental RL Lender and the Borrower acknowledge and agree that,
with respect to the Incremental Revolving Loan Commitment provided by such
Incremental RL Lender pursuant to this Agreement, such Incremental RL Lender
shall receive an upfront fee equal to that amount set forth opposite its name on
Annex I attached hereto, which upfront fee shall be due and payable to such
Incremental RL Lender on the effective date of this Agreement.
Each Incremental RL Lender, to the extent that it is not already a Lender
under the Credit Agreement, (i) confirms that it is (I) a parent company and/or
an affiliate of a Lender which is at least 50% owned by such Lender or its
parent company, (II) in the event the Incremental RL
L-1
Lender is a fund that invests in bank loans, any other fund that invests in bank
loans and is managed by the same investment advisor of any Lender or by an
affiliate of such investment advisor or (III) an Eligible Transferee under
Section 13.04(b) of the Credit Agreement, (ii) confirms that it has received a
copy of the Credit Agreement and the other Credit Documents, together with
copies of the financial statements referred to therein and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement and to become a Lender under the Credit
Agreement, (iii) agrees that it will, independently and without reliance upon
the Administrative Agent, the Syndication Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, (iv) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Credit Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement and the other Credit Documents are required to be performed by it as a
Lender, [and (vi) to the extent legally entitled to do so, attaches the forms
described in Section 13.04(b) of the Credit Agreement.](1)
Each Subsidiary Guarantor acknowledges and agrees that all Obligations
with respect to Incremental Revolving Loans shall be fully guaranteed pursuant
to the Subsidiaries Guaranty in accordance with the terms and provisions
thereof.
The effective date of this Agreement shall be the date on which (i) the
parties hereto have executed a counterpart of this Agreement and delivered same
to the Administrative Agent at the Notice Office, (ii) all fees required to be
paid in connection herewith have been paid, (iii) the satisfaction of the
conditions in Section 1.14(b) of the Credit Agreement and (iv) the other
conditions precedent set forth in Annex II hereto (which shall be consistent
with the requirements of Section 1.14 of the Credit Agreement and the
Incremental Loan Commitment Requirements) have been satisfied, which date shall
be no later than _____, _____ [insert a date on or prior to the 5th Business Day
after the date hereof].
You may accept this Agreement by signing the enclosed copies in the space
provided below, and returning one copy of the same to us before the close of
business on __________ __, _____. If you do not so accept this Agreement by such
time, our Incremental Revolving Loan Commitments set forth in this Agreement
shall be deemed cancelled.
After the execution and delivery to the Administrative Agent of a fully
executed copy of this Agreement (including by way of counterparts and by fax) by
the parties hereto, this Agreement may only be changed, modified or varied by
written instrument in accordance with the requirements for the modification of
Credit Documents pursuant to Section 13.12 of the Credit Agreement.
* * *
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(1) Include if the respective Incremental RL Lender is organized under the
laws of a jurisdiction outside of the United States.
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THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
Very truly yours,
[NAME OF LENDER]
By _______________________________
Name:
Title:
Agreed and Accepted
this ___ day of __________, ____:
FLOWERS FOODS, Inc.
By: ______________________________
Name:
Title:
[NAME OF EACH SUBSIDIARY GUARANTOR]
By: ______________________________
Name:
Title:
Deutsche Bank AG, NEW YORK BRANCH,
as Administrative Agent
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
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ANNEX 1
Name of Incremental Amount of Incremental
RL Lender Revolving Loan Commitment Upfront Fee
Total
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Conditions Precedent
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