================================================================================
CREDIT AGREEMENT
among
FLOWERS FOODS, INC.,
VARIOUS LENDERS,
BANK OF AMERICA, N.A.,
HARRIS N.A.
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
----------
Dated as of October 24, 2003
and
amended and restated as of October 29, 2004
and
further amended and restated as of June 6, 2006
----------
================================================================================
DEUTSCHE BANK SECURITIES INC.,
as SOLE LEAD ARRANGER and BOOKRUNNER
CREDIT AGREEMENT, dated as of October 24, 2003 and amended and
restated as of October 29, 2004 and further amended and restated as of June 6,
2006, among FLOWERS FOODS, INC., a Georgia corporation (the "Borrower"), the
Lenders party hereto from time to time, BANK OF AMERICA, N.A., HARRIS N.A. 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).
WITNESSETH:
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, amended and
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 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. It is acknowledged and agreed that each of the outstanding swingline
loans which were incurred under the Existing Credit Agreement and which remain
outstanding on the Restatement Effective Date and are set forth on Schedule III
(each, an "Existing Swingline Loan" and, collectively, the "Existing Swingling
Loans") shall, from and after the Restatement Effective Date, constitute a
Swingline Loan for all purposes of this Agreement.
(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
-2-
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 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:
-3-
(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 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
-4-
(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 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.
-5-
(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 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
-6-
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 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.
-7-
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 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
-8-
binding upon all parties hereto but, with respect to clause (i) below, may be
made only by the Administrative Agent):
(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
-9-
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 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.
-10-
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 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 participa-
-11-
tions 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 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
-12-
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 pursuant to this Section 1.14 shall not cause the Total
Commitment to exceed $350,000,000 (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
-13-
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 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 30th 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
-14-
Effective Date and prior to the 30th 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 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
-15-
Lender), a Letter of Credit Request in the form of Exhibit C attached hereto
(each a "Letter of Credit Request").
(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
-16-
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 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:
-17-
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(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
-18-
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 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
-19-
terminated), computed at a rate per annum equal to the Applicable Facility Fee
Percentage on the 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
-20-
partial reduction pursuant to this Section 3.02(a) shall be in an amount of at
least $5,000,000 or, 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 June 7, 2006
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
-21-
thereto given by the Borrower shall have no force or effect; and (iii) each
prepayment in respect 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
-23-
such payment by the Borrower. The Borrower agrees to indemnify and hold harmless
each Lender, and reimburse such Lender upon its written request, for the amount
of any 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
-24-
to the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except 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
-25-
Date covering the matters set forth in Exhibit E-1 and such other matters
incident to the transactions contemplated 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 Agreement 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, 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, 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 reasonably
satisfied with the amount of and the terms and
-26-
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
-28-
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.
6.04 The Existing Credit Agreement. On the Restatement Effective Date
and concurrently with the initial incurrence of any Loans hereunder, (i) the
total commitments in respect of the Indebtedness under the Existing Credit
Agreement shall be terminated, all outstanding Existing Revolving Loans
thereunder shall have been repaid in full in cash, together with accrued but
unpaid interest thereon, and all swingline loans and existing letters of credit
issued thereunder, as the case may be, shall have been incorporated hereunder as
Swingline Loans or Letters of Credit pursuant to Sections 1.01(b) and 2.01(a),
respectively, provided that, at the request of the Administrative Agent, any
Continuing Lender may net fund any Revolving Loans required to be made by it on
the Restatement Effective Date by permitting the principal amount of the
Existing Revolving Loans made by such Continuing Lender to remain outstanding on
the Restatement Effective Date to satisfy such Continuing Lender's obligation to
fund a like principal amount of Revolving Loans to be incurred hereunder by the
Borrower on the Restatement Effective Date, and such principal amounts of
Continuing Lenders shall be deemed to be outstanding only as Revolving Loans
hereunder and the corresponding Existing Revolving Loans shall be deemed to have
been repaid in full, and (ii) there shall have been paid in cash in full all
accrued but unpaid Fees under, and as defined in, the Existing Credit Agreement
(including, without limitation, commitment fees, letter of credit fees and
facing fees) due through the Restatement Effective Date and all other amounts,
costs and expenses (including, without limitation, breakage costs, if any, with
respect to Eurodollar rate loans and all legal fees and expenses) then owing to
any of the Existing Lenders and/or the Administrative Agent, as agent under the
Existing Credit Agreement, in each case to the satisfaction of the
Administrative Agent or the Existing Lenders, as the case may be, regardless of
whether or not such amounts would otherwise be due and payable at such time
pursuant to the terms of the Existing Credit Agreement, and (iii) all
outstanding Notes (as defined in the Existing Credit Agreement) issued by the
Borrower to the Existing Lenders under the Existing Credit Agreement shall be
deemed cancelled.
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
-29-
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 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
December 31, 2005, 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 22, 2006, and the related consolidated
statements of income and cash
-30-
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, since December 31, 2005,
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.
(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.
-31-
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 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
-32-
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.
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.
-33-
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 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
-34-
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 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
-35-
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:
(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;
-36-
(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.
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
-37-
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). 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.
-38-
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 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
-39-
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 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);
-40-
(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 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
-41-
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 (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
-42-
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 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.
-43-
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) 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
-44-
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 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,
-45-
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 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
-46-
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 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.
-47-
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 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
-48-
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, amended and restated, extended, renewed or
replaced from time to time.
"Applicable Facility Fee Percentage" and "Applicable Margin" shall
initially mean (i) a percentage per annum equal to (x) in the case of the
Applicable Facility Fee Percentage, 0.125% and (y) in the case of the Applicable
Margin (A) with respect to Loans maintained as Base Rate Loans, 0.0% and (B)
with respect to Loans maintained as Eurodollar Loans, 0.50% and (ii) commencing
60 days following the Restatement Effective Date, those set forth below opposite
the Leverage Ratio achieved for the prior four full consecutive fiscal quarters
of the Borrower, provided that the Borrower shall have delivered to the
Administrative Agent within ten days of the Restatement Effective Date a
certificate of an Authorized Representative of the Borrower setting forth the
calculation thereof as at the last day of such period. 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 after October 7, 2006, 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 those set forth
below opposite the Leverage Ratio indicated to have been achieved in any
certificate delivered in accordance with the following sentence:
Applicable Margin Applicable Margin
for Revolving Loans for Revolving Loans
maintained as Base Rate maintained as Applicable Facility
Leverage Ratio Loans and Swingline Loans Eurodollar Loans Fee Percentage
-------------- ------------------------- ------------------- -------------------
Equal to or less than
0.50:1.00 0.00% 0.40% 0.10%
Greater than 0.50:1.00
but less than or equal to 1.00:1.00 0.00% 0.50% 0.125%
Greater than 1.00:1.00
but less than or equal to 1.50:1.00 0.00% 0.60% 0.15%
Greater than 1.50:1.00
but less than or equal to 1.75:1.00 0.00% 0.675% 0.20%
Greater than 1.75:1.00
but less than or equal to 2.25:1.00 0.00% 0.875% 0.25%
-49-
Applicable Margin Applicable Margin
for Revolving Loans for Revolving Loans
maintained as Base Rate maintained as Applicable Facility
Leverage Ratio Loans and Swingline Loans Eurodollar Loans Fee Percentage
-------------- ------------------------- ------------------- -------------------
Greater than 2.25:1.00 0.20% 1.075% 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 December 31, 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.
"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.
-50-
"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.
"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
-51-
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 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.
-52-
"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 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)
-53-
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 (x) endorsements of
instruments for deposit or collection or product warranties extended, in each
case, in the ordinary course of business and (y) the guarantee by the Borrower
of any operating lease of any Subsidiary of the Borrower. 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.
"Continuing Lender" shall mean each Existing Lender that is a Lender
hereunder.
"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.
"DBAG" shall mean Deutsche Bank AG New York Branch, in its individual
capacity.
"DBSI" shall mean Deutsche Bank Securities Inc., in its individual
capacity.
-54-
"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.
"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
-55-
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).
"Event of Default" shall have the meaning provided in Section 10.
-56-
"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 Lender" shall mean each "Lender" under, and as defined in,
the Existing Credit Agreement as of the Restatement Effective Date.
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01(a).
"Existing Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in, the Existing Credit Agreement.
"Existing Swingline Loan" has the meaning provided in Section 1.01(b).
"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
-57-
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 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
-58-
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 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
-59-
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).
"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).
-60-
"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.
"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 June 6, 2011.
"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, New York, New York 10005-2858, Attention: Ming K. Chu
(telecopier: (212) 797-4344) 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.
-61-
"Original Effective Date" shall mean the "Restatement 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).
"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
-62-
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.
"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.
-63-
"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.
"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.
-64-
"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.
"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.
-65-
"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 (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.
-66-
"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.
"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 N.A. 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
-67-
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 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,
-68-
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," "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.
-69-
(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.
(f) 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.
(g) 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.
12.12 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents. Neither the Administrative 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
-70-
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 the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not 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 in any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or
therein.
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
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-
-71-
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 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.
-72-
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.
(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
-73-
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 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
-74-
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 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
-75-
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 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.
-76-
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.
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
-77-
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.
(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).
-78-
(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, 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
-79-
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
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
-80-
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.
* * *
-81-
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 By: /s/ Jimmy M. Woodward
Facsimile: (229) 225-3808 ------------------------------------
Attention: Secretary and General Name: Jimmy M. Woodward
Counsel 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/ Ming K. Chu
------------------------------------
Name: Ming K. Chu
Title: Vice President
SUNTRUST BANK, Individually and as
Syndication Agent
By: /s/ Susan M. Hall
------------------------------------
Name: Susan M. Hall
Title: Managing Director
BANK OF AMERICA, N.A., Individually and
as Co-Documentation Agent
By: /s/ David L. Catherall
------------------------------------
Name: David L. Catherall
Title: Vice President
HARRIS N.A., Individually and as
Co-Documentation Agent
By: /s/ Betsy Erdelyi
------------------------------------
Name: Betsy Erdelyi
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEN BANK, B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
Individually and as
Co-Documentation Agent
By: /s/ Theodore W. Cox
------------------------------------
Name: Theodore W. Cox
Title: Executive Director
By: /s/ Rebecca O. Morrow
------------------------------------
Name: Rebecca O. Morrow
Title: Executive Director
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
AGFIRST FARM CREDIT BANK
By: /s/ Craig A. Register
------------------------------------
Name: Craig A. Register
Title: Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
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
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
BRANCH BANKING AND TRUST COMPANY
By: /s/ Roberts A. Bass
------------------------------------
Name: Roberts A. Bass
Title: Senior Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
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, Deputy Manager
By: /s/ Blake Wright
------------------------------------
Name: Blake Wright
Title: Managing Director
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
COBANK, ACB
By: /s/ Teresa L. Fountain
------------------------------------
Name: Teresa L. Fountain
Title: Assistant Corporate Secretary
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
COMERICA BANK
By: /s/ Richard C. Hampson
------------------------------------
Name: Richard C. Hampson
Title: Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
FARM CREDIT SERVICES OF AMERICA, PCA
By: /s/ Bruce Dean
------------------------------------
Name: Bruce Dean
Title: Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
GREENSTONE FARM CREDIT SERVICES,
FLCA/ACA
By: /s/ Alfred S. Compton, Jr.
------------------------------------
Name: Alfred S. Compton, Jr.
Title: Vice President,
Senior Lending Officer
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
NORTHERN TRUST COMPANY
By: /s/ John C. Canty
------------------------------------
Name: John C. Canty
Title: Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
REGIONS BANK
By: /s/ James W. Newport
------------------------------------
Name: James W. Newport
Title: Senior Vice President
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 24, 2003 AND AMENDED
AND RESTATED AS OF OCTOBER 29, 2004 AND
FURTHER AMENDED AND RESTATED AS OF JUNE
6, 2006, AMONG FLOWERS FOODS, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME
AND DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT
U.S. AGBANK, FCB
By: /s/ Greg E. Somerhalder
------------------------------------
Name: Greg E. Somerhalder
Title: Vice President
COMMITMENTS
Lender Commitment
------ ------------
Deutsche Bank AG New York Branch $ 21,500,000
SunTrust Bank $ 18,625,000
Bank of America, N.A $ 18,625,000
Harris N.A $ 18,625,000
Cooperatieve Centrale Raiffeisen-Boerenleen Bank, B.A.,
"Rabobank International", New York Branch $ 18,625,000
AgFirst Farm Credit Bank $ 14,000,000
Bank Hapoalim B.M $ 14,000,000
[BB&T] $ 14,000,000
Calyon New York Branch $ 14,000,000
CoBank, ACB $ 14,000,000
Comerica Bank $ 14,000,000
Farm Credit Services of America, PCA $ 14,000,000
GreenStone Farm Credit Services, FLCA/ACA $ 14,000,000
Northern Trust Company $ 14,000,000
Regions Bank $ 14,000,000
U.S. AgBank, FCB $ 14,000,000
------------
TOTAL $250,000,000
============
SCHEDULE II
LENDER ADDRESSES
Lender Address
- ------ -------
Deutsche Bank AG New York Branch 60 Wall Street
New York, NY 10005
Telephone: (212) 250-5451
Facsimile: (212) 797-4344
Attention: Ming K. Chu
E-mail: ming.k.chu@db.com
SunTrust Bank 303 Peachtree Street- N.E., 3rd Floor
MC-GA-ATL 1922
Atlanta, GA 30308
Telephone: (404) 588-8711
Facsimile: (404) 575-2693
Attention: Gabe Bonfield
E-mail: gabe.bonfield@suntrust.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 N.A. 111 W. Monroe Street- 20th 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-Boerenleen 1180 Peachtree Street- Suite 2200
Bank, B.A., "Rabobank International", Atlanta, GA 30309
New York Branch Telephone: (404) 870-8003
Facsimile: (404) 870-8025
Attention: Stewart Kalish
E-mail: stewart.kalish@rabobank.com
AgFirst Farm Credit Bank 1401 Hampton Street
Columbia, SC 29201
Telephone: (803) 753-2212
Facsimile: (803) 254-4219
Attention: Steven J. O'Shea
E-mail: soshea@agfirst.com
Lender Address
- ------ -------
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
Branch Banking & Trust Company 200 W. 2nd Street, 16th Floor
Winston Salem, NC 27101
Telephone: (336) 733-2734
Facsimile: (336) 733-2740
Attention: Roberts A. Bass
E-mail: rbass@bbandt.com
Calyon 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) 740-4016
Facsimile: (303) 740-4021
Attention: Berry Marshall
E-mail: agencybank@cobank.com
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
Farm Credit Services of America, PCA 5015 S. 118th Street
Omaha, NE 68137
Telephone: (402) 348-3262
Facsimile: (402) 348-3324
Attention: Jennifer Witt
E-mail: wittj@fcsamerica.com
Lender Address
- ------ -------
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
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
Regions Bank 2813 Old Dawson Road
Albany, Georgia 31707
Telephone: (229) 438-2446
Facsimile: (229) 431-2581
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
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit ................................... 1
1.01 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 ............................................ 7
1.08 Interest ....................................................... 7
1.09 Interest Periods ............................................... 8
1.10 Increased Costs, Illegality, etc ............................... 8
1.11 Compensation ................................................... 11
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
5.04 Corporate Documents; Proceedings; etc .......................... 26
-i-
TABLE OF CONTENTS
(continued)
Page
----
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
6.04 The Existing Credit Agreement .................................. 29
SECTION 7. Representations, Warranties and Agreements ................... 29
7.01 Corporate Status ............................................... 29
7.02 Corporate Power and Authority .................................. 30
7.03 No Violation ................................................... 30
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 ................................... 32
7.08 Use of Proceeds; Margin Regulations ............................ 32
7.09 Tax Returns and Payments ....................................... 32
7.10 Compliance with ERISA .......................................... 32
7.11 Properties ..................................................... 33
7.12 Subsidiaries ................................................... 33
7.13 Compliance with Statutes, etc .................................. 33
7.14 Investment Company Act ......................................... 34
7.15 Public Utility Holding Company Act ............................. 34
7.16 Environmental Matters .......................................... 34
7.17 Labor Relations ................................................ 34
7.18 Patents, Licenses, Franchises and Formulas ..................... 34
7.19 Scheduled Existing Indebtedness, etc ........................... 35
SECTION 8. Affirmative Covenants ........................................ 35
8.01 Information Covenants .......................................... 35
8.02 Books, Records and Inspections ................................. 37
8.03 Maintenance of Property; Insurance ............................. 38
-ii-
TABLE OF CONTENTS
(continued)
Page
----
8.04 Corporate Franchises ........................................... 38
8.05 Compliance with Statutes, etc .................................. 38
8.06 Compliance with Environmental Laws ............................. 38
8.07 ERISA .......................................................... 39
8.08 End of Fiscal Years; Fiscal Quarters ........................... 39
8.09 Payment of Taxes ............................................... 40
8.10 Additional Subsidiary Guarantors ............................... 40
8.11 Use of Proceeds ................................................ 40
SECTION 9. Negative Covenants ........................................... 40
9.01 Liens .......................................................... 40
9.02 Consolidations, Mergers, Sales of Assets and Acquisitions ...... 42
9.03 Dissolution, etc ............................................... 43
9.04 Restricted Payments ............................................ 43
9.05 Indebtedness ................................................... 43
9.06 Transactions with Affiliates ................................... 44
9.07 Maximum Leverage Ratio ......................................... 44
9.08 Minimum Interest Coverage Ratio ................................ 44
9.09 Business ....................................................... 44
9.10 Limitation on Certain Restrictions on Subsidiaries ............. 44
9.11 Limitation on Issuance of Capital Stock ........................ 44
SECTION 10. Events of Default ........................................... 45
10.01 Payments ...................................................... 45
10.02 Representations, etc .......................................... 45
10.03 Covenants ..................................................... 45
10.04 Default Under Other Agreements ................................ 45
10.05 Bankruptcy, etc ............................................... 46
10.06 ERISA ......................................................... 46
10.07 Subsidiaries Guaranty ......................................... 47
10.08 Judgments ..................................................... 47
10.09 Change of Control ............................................. 47
SECTION 11. Definitions and Accounting Terms ............................ 48
11.01 Defined Terms ................................................. 48
SECTION 12. The Agents .................................................. 67
12.01 Appointment ................................................... 67
12.02 Nature of Duties .............................................. 67
12.03 Lack of Reliance on the Agents ................................ 68
-iii-
TABLE OF CONTENTS
(continued)
Page
----
12.04 Certain Rights of the Agents .................................. 68
12.05 Reliance ...................................................... 68
12.06 Indemnification ............................................... 68
12.07 The Agent in its Individual Capacity .......................... 69
12.08 Holders ....................................................... 69
12.09 Resignation by the Agents ..................................... 69
12.10 Delivery of Information ....................................... 70
12.11 The Syndication Agent, the Co-Documentation Agents and the Lead
Arranger ................................................... 70
12.12 Nature of Duties .............................................. 70
SECTION 13. Miscellaneous ............................................... 71
13.01 Payment of Expenses, etc ...................................... 71
13.02 Right of Setoff ............................................... 72
13.03 Notices ....................................................... 72
13.04 Benefit of Agreement .......................................... 73
13.05 No Waiver; Remedies Cumulative ................................ 74
13.06 Payments Pro Rata ............................................. 75
13.07 Calculations; Computations .................................... 75
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL ................................................. 76
13.09 Counterparts .................................................. 77
13.10 Effectiveness ................................................. 77
13.11 Headings Descriptive .......................................... 77
13.12 Amendment or Waiver; etc ...................................... 77
13.13 Survival ...................................................... 79
13.14 Domicile of Loans ............................................. 79
13.15 Limitation on Additional Amounts, etc ......................... 79
13.16 Confidentiality ............................................... 79
13.17 Register ...................................................... 80
13.18 USA Patriot Act Notice ........................................ 81
SCHEDULE I Commitments
SCHEDULE II Lender Addresses
SCHEDULE III Existing Letters of Credit and Existing Swingline Loans
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
-iv-
TABLE OF CONTENTS
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
-i-
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 and further amended and restated as of June 6, 2006 (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].]
- ----------
(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).
Exhibit A-1
Page 2
[(v) The initial Interest Period for the Proposed Borrowing is _______
month(s).]
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:
---------------------------------
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 and further amended and restated as of June 6, 2006 (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.
Exhibit A-2
Page 2
[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:
---------------------------------
- ----------
(...continued)
(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.
(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.
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 and further amended and restated as of June 6, 2006, 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:
---------------------------------
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 and
further amended and restated as of June 6, 2006, 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:
---------------------------------
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 and further amended and restated as
of June 6, 2006 (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, 38th 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).
Exhibit C
Page 2
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.
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 and further amended and
restated as of June 6, 2006, 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_
EXHIBIT E-1
June 6, 2006
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, as amended and restated as of
October 29, 2004, and as further amended and restated as of June 6, 2006 (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 any Revolving Notes or Swingline Notes executed and
delivered on the date hereof (the "Notes");
1
(3) a copy of the Subsidiaries Guaranty dated as of June 6, 2006 (the
"Guaranty"), executed and delivered by the Subcos for the benefit of
the Agent and the Lenders; and
(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.
2
(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 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 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
3
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,
or affecting the rights and remedies of creditors of federally insured financial
institutions 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:
(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;
4
(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;
(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 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
5
(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 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.
6
(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.
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
7
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 AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Bakery of Fort Smith, LLC AR
Flowers Bakery of Texarkana, LLC AR
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, 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
Derst Baking Company, LLC GA
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 Frozen Desserts of Pennsylvania, LLC GA
Flowers Frozen Desserts Sales Group, LLC GA
Flowers Frozen Desserts, LLC GA
Flowers Frozen Distributors, LLC GA
Flowers Specialty Foodservice Sales, 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
8
ENTITY STATE OF ORGANIZATION
------ ---------------------
Flowers Baking Co. of New Orleans, LLC LA
Flowers Bakery of Winston-Salem, LLC NC
Flowers Baking Co. of Jamestown, LLC NC
Flowers Baking Co. of Newton, 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 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
Flowers Specialty Snack Sales, Inc. 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
9
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 AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Bakery of Fort Smith, LLC AR
Flowers Bakery of Texarkana, LLC AR
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, 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 Bakery of Winston-Salem, LLC NC
Flowers Baking Co. of Jamestown, LLC NC
Flowers Baking Co. of Newton, 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 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
Flowers Specialty Snack Sales, Inc. TN
West Tennessee Baking Co., LLC TN
Flowers Baking Co. of Lynchburg, LLC VA
10
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
11
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,
as amended and restated as of October 29, 2004, and as further amended and
restated as of June 6, 2006 (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).
12
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 June 6, 2006
- -------------------------------------
Name:
-------------------------------
Title:
------------------------------
13
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 February 9, 2001, 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. Rights Agreement between Flowers Foods, Inc. and First Union National Bank,
as Rights Agent, dated March 23, 2001 (Incorporated by reference to Flowers
Foods' Annual Report on Form 10-K, dated March 30, 2001, File No. 1-16247).
4. Amendment No. 1, dated November 15, 2002, to Rights Agreement between Flowers
Foods, Inc. and Wachovia Bank, N.A. (as successor in interest to First Union
National Bank), as rights agent, dated March 23, 2001. (Incorporated by
reference to Flowers Foods' Registration Statement on Form 8-A, dated November
18, 2002, File No. 1-16247).
5. 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).
6. Flowers Foods, Inc. 2001 Equity and Performance Incentive Plan, as amended
and restated as of February 11, 2005 (Incorporated by reference to Flowers
Foods' Proxy Statement on Schedule 14A, dated April 29, 2005, 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 27, 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 27, 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. 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 Cooperative 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).
11. 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).
14
12. Ninth Amendment dated November 7, 2005 to the Flowers Foods, Inc. Retirement
Plan No. 1 as Amended and restated effective as of March 26, 2001. (Incorporated
by reference to Flowers Foods' Quarterly Report on Form 10-Q dated November 17,
2005, File No. 1-16247).
15
ANNEX II
None.
16
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, as amended and restated as of October 29, 2004, and as further
amended and restated as of June 6, 2006 (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 their 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 them 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).
17
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 June 6, 2006
- -------------------------------------
Name:
-------------------------------
Title:
------------------------------
18
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 AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Bakery of Fort Smith, LLC AR
Flowers Bakery of Texarkana, LLC AR
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, 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
Derst Baking Company, LLC GA
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
Flowers Specialty Foodservice Sales, LLC GA
Table Pride, LLC GA
Flowers Bakery of London, LLC KY
Flowers Baking Co. of Baton Rouge, LLC LA
19
Flowers Baking Co. of Lafayette, LLC LA
Flowers Baking Co. of New Orleans, LLC LA
Flowers Bakery of Winston-Salem, LLC NC
Flowers Baking Co. of Jamestown, LLC NC
Flowers Baking Co. of Newton, 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 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
Flowers Specialty Snack Sales, Inc. 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
20
ANNEX I
None.
21
ANNEX II
None.
22
EXHIBIT B TO OPINION LETTER
DATE OF
GOOD
STANDING
CERTIFICATE DATE OF GOOD
FROM STANDING CERTIFICATE
STATE OF JURISDICTION FROM FOREIGN
ENTITY ORGANIZATION OF FORMATION JURISDICTIONS
------ ------------ ------------ --------------------
Flowers Foods, Inc. GA 05/24/06 --
Flowers Bakeries Brands, Inc. DE 05/19/06 --
Flowers Finance, LLC DE 05/19/06 --
Derst Baking Company, LLC GA 05/18/06 FL-June 1, 2006
SC-May 26, 2006
Flowers Bakery of Atlanta, LLC GA 05/18/06 --
Flowers Bakery of Suwanee, LLC GA 05/18/06 --
Flowers Baking Co. of McDonough, LLC GA 05/18/06 --
Flowers Baking Co. of Thomasville, LLC GA 05/18/06 AL-May 19, 2006
FL-May 26, 2006
Flowers Baking Co. of Tucker, LLC GA 05/18/06 --
Flowers Baking Co. of Tyler, LLC GA 05/18/06 LA-May 26, 2006
OK-May 23, 2006
AR-May 19, 2006
MO-May 19, 2006
TX-May 18, 2006
Flowers Baking Co. of Villa Rica, LLC GA 05/18/06 TN-May 30, 2006
AL-May 19, 2006
SC-May 22, 2006
Flowers Foil Company, LLC GA 05/18/06 PA-May 26, 2006
Flowers Foods Bakeries Group, LLC GA 05/19/06 --
Flowers Foods Specialty Group, LLC GA 05/19/06 --
Flowers Specialty Foodservice Sales, LLC GA 05/18/06 AL-May 19, 2006
AR-May 19, 2006
AZ-May 25, 2006
CO-May 22, 2006
FL-May 26, 2006
IN-May 19, 2006
KS-May 31, 2006
KY-May 19, 2006
LA-May 26, 2006
MA-May 30, 2006
MO-May 19, 2006
NJ-May 30, 2006
NC-May 18, 2006
OH-May 22, 2006
OK-May 23, 2006
23
PA-May 31, 2006
SC-May 18, 2006
TN-May 30, 2006
TX-May 22, 2006
WA-May 19, 2006
Flowers Frozen Desserts of Pennsylvania, LLC GA 05/18/06 PA-May 26, 2006
Flowers Frozen Desserts Sales Group, LLC GA 05/18/06 KY-May 19, 2006
LA-May 26, 2006
MN-May 18, 2006
OH-May 22, 2006
PA-May 26, 2006
TN-May 30, 2006
Flowers Frozen Desserts, LLC GA 05/18/06 --
Flowers Frozen Distributors, LLC GA 05/18/06 --
Table Pride, LLC GA 05/18/06 --
Austin Baking Co., LLC TX 05/18/06 --
Corpus Christi Baking Co., LLC TX 05/18/06 --
Flowers Baking Co. of Denton, LLC TX 05/18/06 OK-May 31, 2006
Flowers Baking Co. of El Paso, LLC TX 05/18/06 NM-May 18, 2006
Flowers Baking Co. of Houston, LLC TX 05/18/06 --
Flowers Baking Co. of San Antonio, LLC TX 05/18/06 --
Flowers Baking Co. of Texas, LLC TX 05/18/06 --
Leeland Baking Co., LLC TX 05/18/06 --
San Antonio Baking Co., LLC TX 05/18/06 --
24
EXHIBIT E-2
June 6, 2006
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, as amended and restated as of
October 29, 2004, and as further amended and restated as of June 6, 2006 (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 any Revolving Notes or Swingline Notes executed and
delivered on the date hereof (the "Notes"); and
(3) a copy of the Subsidiaries Guaranty dated as of June 6, 2006 (the
"Guaranty"), executed and delivered by the Subcos for the benefit of
the Agent and the Lenders.
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 (other than The Donut House, LLC) 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
2
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:
(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,
----------------------------------------
Senior Vice President, Secretary
and General Counsel
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 AL
Flowers Baking Co. of Opelika, LLC AL
Flowers Baking Co. of Tuscaloosa, LLC AL
Flowers Bakery of Fort Smith, LLC AR
Flowers Bakery of Texarkana, LLC AR
Flowers Baking Co. of Batesville, LLC AR
Flowers Baking Co. of Pine Bluff, 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 Bakery of Winston-Salem, LLC NC
Flowers Baking Co. of Jamestown, LLC NC
Flowers Baking Co. of Newton, 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 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
Flowers Specialty Snack Sales, Inc. TN
West Tennessee Baking Co., LLC TN
Flowers Baking Co. of Lynchburg, LLC VA
Flowers Baking Co. of Norfolk, LLC VA
4
ENTITY STATE OF ORGANIZATION
------ ---------------------
Flowers Baking Co. of West Virginia, LLC WV
Storck Baking Company, LLC WV
The Donut House, LLC WV
5
EXHIBIT A
DATE OF GOOD DATE OF GOOD
STANDING CERTIFICATE STANDING CERTIFICATE
STATE OF FROM JURISDICTION OF FROM FOREIGN
ENTITY ORGANIZATION FORMATION JURISDICTIONS
------ ------------ -------------------- --------------------
Flowers Foods, Inc. GA 05/24/06 --
Bailey Street Bakery, LLC AL 05/19/06 GA-May 18, 2006
Flowers Bakery of Montgomery, LLC AL 05/19/06 --
Flowers Baking Co. of Birmingham, LLC AL 05/19/06 AR-May 31, 2006
FL-May 31, 2006
GA-May 18, 2006
LA-May 31, 2006
MS-June 1, 2006
NC-May 18, 2006
SC-June 1, 2006
TN-June 1, 2006
TX-May 31, 2006
VA-May 18, 2006
WV-May 30, 2006
Flowers Baking Co. of Opelika, LLC AL 05/19/06 GA-May 18, 2006
Flowers Baking Co. of Tuscaloosa, LLC AL 05/19/06 MS-May 18, 2006
TN-May 30, 2006
Flowers Bakery of Fort Smith, LLC AR 05/19/06 KS-May 31, 2006
MO-May 19, 2006
OK-May 23, 2006
Flowers Bakery of Texarkana, LLC AR 05/19/06 --
Flowers Baking Co. of Batesville, LLC AR 05/19/06 MO-May 19, 2006
TN-May 30, 2006
KY-May 19, 2006
MS-May 18, 2006
Flowers Baking Co. of Pine Bluff, LLC AR 05/19/06 --
Flowers Baking Co. of Bradenton, LLC FL 05/26/06 --
Flowers Baking Co. of Florida, LLC FL 05/26/06 --
Flowers Baking Co. of Jacksonville, LLC FL 05/24/06 GA-May 18, 2006
SC-May 18, 2006
Flowers Baking Co. of Miami, LLC FL 05/26/06 --
Flowers Bakery of London, LLC KY 05/19/06 --
Flowers Baking Co. of Baton Rouge, LLC LA 05/26/06 MS-May 18, 2006
Flowers Baking Co. of Lafayette, LLC LA 05/26/06 --
Flowers Baking Co. of New Orleans, LLC LA 05/26/06 AL-May 19, 2006
MS-May 18, 2006
6
Flowers Bakery of Winston-Salem, LLC NC 05/18/06 --
Flowers Baking Co. of Jamestown, LLC NC 05/18/06 SC-May 18, 2006
Flowers Baking Co. of Newton, LLC NC 05/18/06 --
Flowers Frozen Desserts of Pembroke, LLC NC 05/18/06 --
Franklin Baking Company, LLC NC 05/18/06 SC-May 18, 2006
VA-May 18, 2006
Flowers Frozen Desserts of Stilwell, LLC OK 05/23/06 --
Flowers Specialty Brands, Inc. SC 05/18/06 --
Flowers Frozen Desserts of Spartanburg, LLC SC 05/18/06 --
Flowers Specialty Snack Sales, Inc. TN 05/30/06 AL-May 23, 2006
AR-May 22, 2006
CO-May 22, 2006
FL-May 26, 2006
IN-May 19, 2006
KS-May 22, 2006
KY-May 22, 2006
LA-May 22, 2006
MA-May 26, 2006
MO-May 23, 2006
NJ- May 23, 2006
NC-May 22, 2006
OH-May 22, 2006
OK-May 23, 2006
PA-May 31, 2006
SC-May 22, 2006
WA-June 1, 2006
Flowers Bakery of Cleveland, LLC TN 05/18/06 --
Flowers Bakery of Crossville, LLC TN 05/30/06 --
Flowers Baking Co. of Memphis, LLC TN 05/30/06 --
Flowers Baking Co. of Morristown, LLC TN 05/18/06 KY-May 19, 2006
NC-May 18, 2006
OH-May 22, 2006
SC-May 18, 2006
VA- May 18, 2006
Flowers Baking Co. of Nashville, LLC TN 05/30/06 KY-May 19, 2006
IN-May 22, 2006
West Tennessee Baking Co., LLC TN 05/30/06 AR- May 19, 2006
KY-May 19, 2006
MS-May 18, 2006
Flowers Baking Co. of Lynchburg, LLC VA 05/18/06 MD-May 30, 2006
Flowers Baking Co. of Norfolk, LLC VA 05/18/06 NC-May 18, 2006
Flowers Baking Co. of West Virginia, WV 05/26/06 KY-May 19, 2006
7
LLC VA-May 18, 2006
OH-May 22, 2006
Storck Baking Company, LLC WV 05/26/06 OH- June 2, 2006
8
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 and further amended and restated as of June 4, 2006,
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
- ----------
(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.
EXHIBIT F
Page 2
quorum was present and acting throughout], and said resolutions have not been
rescinded, amended or 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.
EXHIBIT F
Page 3
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:
---------------------------------
EXHIBIT G
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of June 6, 2006 (as amended, restated,
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.
WITNESSETH:
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 and further
amended and restated as of June 6, 2006 (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
EXHIBIT G
Page 2
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, 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
EXHIBIT G
Page 3
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor or the Borrower).
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
EXHIBIT G
Page 4
(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
EXHIBIT G
Page 5
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.
EXHIBIT G
Page 6
(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
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
EXHIBIT G
Page 7
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.
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.
EXHIBIT G
Page 8
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 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
EXHIBIT G
Page 9
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 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,
EXHIBIT G
Page 10
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 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.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
BAILEY STREET BAKERY, LLC
FLOWERS BAKING CO. OF BIRMINGHAM, LLC
(f/k/a Flowers Bakery of Birmingham, LLC)
FLOWERS BAKING CO. OF OPELIKA, LLC
FLOWERS BAKING CO. OF TUSCALOOSA, LLC
FLOWERS BAKING CO. OF BATESVILLE, LLC
FLOWERS BAKING CO. OF PINE BLUFF, LLC
FLOWERS BAKING CO. OF BRADENTON, LLC
FLOWERS BAKING CO. OF JACKSONVILLE, LLC
FLOWERS BAKING CO. OF MIAMI, LLC
FLOWERS BAKING CO. OF MCDONOUGH, LLC
FLOWERS BAKING CO. OF THOMASVILLE, LLC
FLOWERS BAKING CO. OF TUCKER, LLC
FLOWERS BAKING CO. OF TYLER, LLC
FLOWERS BAKING CO. OF VILLA RICA, LLC
FLOWERS FOODS BAKERIES GROUP, LLC
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
FRANKLIN BAKING COMPANY, LLC
FLOWERS FINANCE, LLC
FLOWERS BAKING CO. OF NEWTON, LLC
FLOWERS BAKING CO. OF MORRISTOWN, LLC
FLOWERS BAKING CO. OF NASHVILLE, LLC
WEST TENNESSEE 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 LYNCHBURG, LLC
DERST BAKING COMPANY, LLC
FLOWERS BAKERY OF MONTGOMERY, LLC
By
--------------------------------------
Name: Stephanie Tillman
Title: Assistant Secretary
FLOWERS BAKERY OF ATLANTA, LLC
FLOWERS BAKERY OF SUWANEE, LLC
FLOWERS FOODS SPECIALTY GROUP, LLC
FLOWERS SPECIALTY FOODSERVICE SALES, LLC
FLOWERS BAKERY OF LONDON, LLC
FLOWERS BAKERY OF CLEVELAND, LLC
FLOWERS BAKERY OF CROSSVILLE, LLC
FLOWERS BAKERY OF FORT SMITH, LLC
FLOWERS BAKERY OF TEXARKANA, LLC
FLOWERS BAKERY OF WINSTON-SALEM, LLC
FLOWERS BAKERIES BRANDS, INC.
FLOWERS SPECIALTY SNACK SALES, INC.
FLOWERS BAKING CO. OF NORFOLK, LLC
FLOWERS BAKING CO. OF WEST VIRGINIA, LLC
STORCK BAKING COMPANY, LLC
FLOWERS BAKING CO. OF TEXAS, LLC
LEELAND BAKING CO., LLC
THE DONUT HOUSE, LLC
By
--------------------------------------
Name: Stephanie Tillman
Title: Assistant Secretary
FLOWERS BAKING CO. OF FLORIDA, LLC
TABLE PRIDE, LLC
FLOWERS BAKING CO. OF MEMPHIS, LLC
FLOWERS FROZEN DESSERTS, LLC
FLOWERS FROZEN DESSERTS OF PEMBROKE, LLC
FLOWERS FROZEN DESSERTS SALES GROUP, LLC
FLOWERS FOIL COMPANY, LLC
FLOWERS FROZEN DESSERTS OF PENNSYLVANIA,
LLC
FLOWERS FROZEN DESSERTS OF SPARTANBURG,
LLC
FLOWERS FROZEN DISTRIBUTORS, LLC
FLOWERS SPECIALTY BRANDS, INC.
FLOWERS FROZEN DESSERTS OF STILWELL, LLC
By
--------------------------------------
Name: Stephanie Tillman
Title: Secretary
CORPUS CHRISTI BAKING CO. LLC
AUSTIN BAKING CO., LLC
SAN ANTONIO BAKING CO., LLC
By
--------------------------------------
Name: Stephanie Tillman
Title: Secretary and Treasurer
Accepted and Agreed to:
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
By
---------------------------------
Name:
------------------------------
Title:
-----------------------------
By
---------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT H
SOLVENCY CERTIFICATE
I, the undersigned, the Chief Financial Officer of Flowers Foods,
Inc., a Georgia corporation (the "Companys"), 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 and further amended and
restated as of June 6, 2006, 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
Exhibit H
Page 2
after giving effect to Transaction, determined in accordance with GAAP
consistently applied, together with the amount of all New Financing.
(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.
Exhibit H
Page 3
(d) With respect to Identified Contingent Liabilities, I:
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 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.
Exhibit H
Page 4
IN WITNESS WHEREOF, I have hereto set my hand this 6th day of June,
2006.
FLOWERS FOODS, INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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 and further
amended and restated as of June 6, 2006, 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.
EXHIBIT I
Page 2
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.
EXHIBIT I
Page 3
[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.
Exhibit I
Page 4
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.
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.
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.
Annex 1
Page 2
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).
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 and further amended and restated as of June 6,
2006 (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:
---------------------------------
ANNEX 1
[Applicable Financial Statements To Be Attached]
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.
Annex 2
Page 2
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.
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.
WITNESSETH:
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 and further
amended and restated as of June 6, 2006 (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
EXHIBIT K
Page 2
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 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].
* * *
EXHIBIT K
Page3
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:
-------------------------------
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 and further amended and restated
as of June 6, 2006 (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.
Exhibit L
Page 2
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 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
- ----------
(1) Include if the respective Incremental RL Lender is organized under the
laws of a jurisdiction outside of the United States.
Exhibit L
Page3
requirements for the modification of Credit Documents pursuant to Section 13.12
of the Credit Agreement.
* * *
Exhibit L
Page 4
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:
------------------------------
ANNEX I
Name of Incremental Amount of Incremental
RL Lender Revolving Loan Commitment Upfront Fee
- ------------------- ------------------------- -----------
Total
ANNEX II
Conditions Precedent