Multi-Year Credit Agreement - Smithfield Foods Inc. and JPMorgan Chase Bank
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MULTI-YEAR CREDIT AGREEMENT
dated as of
December 6, 2001
among
SMITHFIELD FOODS, INC.,
THE SUBSIDIARY GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO
and
JPMORGAN CHASE BANK,
as Administrative Agent
_________________________
JPMORGAN SECURITIES INC.,
as Arranger
CREDIT AGRICOLE INDOSUEZ,
as Documentation Agent
COOPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A.
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Syndication Agent
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<PAGE>
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms............................................................ 1
SECTION 1.02. Classification of Loans and Borrowings................................... 22
SECTION 1.03. Terms Generally.......................................................... 22
SECTION 1.04. Accounting Terms; GAAP................................................... 23
SECTION 1.05. Currencies, Currency Equivalents......................................... 23
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments.............................................................. 24
SECTION 2.02. Loans and Borrowings..................................................... 24
SECTION 2.03. Requests for Revolving Loan.............................................. 25
SECTION 2.04. Swingline Loans.......................................................... 26
SECTION 2.05. Letters of Credit........................................................ 28
SECTION 2.06. Funding of Borrowings.................................................... 33
SECTION 2.07. Interest Elections....................................................... 34
SECTION 2.08. Termination or Reduction of Commitments.................................. 36
SECTION 2.09. Repayment of Loans; Evidence of Debt..................................... 36
SECTION 2.10. Prepayment of Loans...................................................... 37
SECTION 2.11. Fees..................................................................... 39
SECTION 2.12. Interest................................................................. 40
SECTION 2.13. Alternate Rate of Interest............................................... 41
SECTION 2.14. Increased Costs.......................................................... 41
SECTION 2.15. Break Funding Payments................................................... 43
SECTION 2.16. Taxes.................................................................... 43
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.............. 45
SECTION 2.18. Mitigation Obligations; Replacement of Lenders........................... 48
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers..................................................... 49
SECTION 3.02. Authorization; Enforceability............................................ 49
SECTION 3.03. Governmental Approvals; No Conflicts..................................... 49
SECTION 3.04. Financial Condition; No Material Adverse Change.......................... 49
(i)
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SECTION 3.05. Properties............................................................... 50
SECTION 3.06. Litigation and Environmental Matters..................................... 50
SECTION 3.07. Compliance with Laws and Agreements...................................... 51
SECTION 3.08. Investment and Holding Company Status.................................... 51
SECTION 3.09. Taxes.................................................................... 51
SECTION 3.10. ERISA.................................................................... 51
SECTION 3.11. Disclosure............................................................... 51
SECTION 3.12. Regulations U and X...................................................... 52
SECTION 3.13. Material Agreements and Liens............................................ 52
SECTION 3.14. Subsidiaries, Etc........................................................ 52
SECTION 3.15. Solvency................................................................. 53
SECTION 3.16. Labor Matters............................................................ 53
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date........................................................... 53
SECTION 4.02. Each Credit Event........................................................ 55
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information............................... 56
SECTION 5.02. Notices of Material Events............................................... 57
SECTION 5.03. Existence; Conduct of Business........................................... 58
SECTION 5.04. Payment of Obligations................................................... 58
SECTION 5.05. Maintenance of Properties; Insurance..................................... 58
SECTION 5.06. Books and Records; Inspection Rights..................................... 58
SECTION 5.07. Compliance with Laws..................................................... 59
SECTION 5.08. Use of Proceeds and Letters of Credit.................................... 59
SECTION 5.09. Further Assurances....................................................... 59
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness............................................................. 59
SECTION 6.02. Liens.................................................................... 60
SECTION 6.03. Fundamental Changes...................................................... 61
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions................ 63
SECTION 6.05. Hedging Agreements....................................................... 63
SECTION 6.06. Restricted Payments...................................................... 64
(ii)
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SECTION 6.07. Transactions with Affiliates............................................. 64
SECTION 6.08. Restrictive Agreements................................................... 65
SECTION 6.09. Senior Note Documents.................................................... 66
SECTION 6.10. Limitation on Sale and Leaseback Transactions............................ 66
SECTION 6.11. Fiscal Periods........................................................... 66
SECTION 6.12. Financial Covenants...................................................... 66
SECTION 6.13. Subordinated Indebtedness................................................ 66
ARTICLE VII
EVENTS OF DEFAULT................................... 67
ARTICLE VIII
GUARANTEE
SECTION 8.01 The Guarantee............................................................. 70
SECTION 8.02 Obligations Unconditional................................................. 70
SECTION 8.03 Reinstatement............................................................. 71
SECTION 8.04 Subrogation............................................................... 72
SECTION 8.05 Remedies.................................................................. 72
SECTION 8.06 Instrument for the Payment of Money....................................... 72
SECTION 8.07 Continuing Guarantee...................................................... 72
SECTION 8.08 Rights of Contribution.................................................... 72
SECTION 8.09 General Limitation on Guarantee Obligations............................... 73
ARTICLE IX
THE ADMINISTRATIVE AGENT............................... 73
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices................................................................. 76
SECTION 10.02. Waivers; Amendments..................................................... 77
SECTION 10.03. Expenses; Indemnity: Damage Waiver...................................... 79
SECTION 10.04. Successors and Assigns.................................................. 80
SECTION 10.05. Survival................................................................ 82
SECTION 10.06. Counterparts; Integration; Effectiveness................................ 83
SECTION 10.07. Severability............................................................ 83
SECTION 10.08. Right of Setoff......................................................... 83
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.............. 84
(iii)
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SECTION 10.10. WAIVER OF JURY TRIAL......................................... 84
SECTION 10.11. Headings..................................................... 85
SECTION 10.12. Confidentiality.............................................. 85
SECTION 10.13. Perfection of Security Interests............................. 85
SECTION 10.14. Acknowledgements............................................. 86
SECTION 10.15. European Monetary Union...................................... 86
SECTION 10.16. Judgment Currency............................................ 87
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Material Agreements and Liens
Schedule 3.14 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Security Agreement
Exhibit C - Form of Guarantee Assumption Agreement
Exhibit D - Form of Opinion of Counsel to the Obligors
Exhibit E - Form of Opinion of Special Counsel
Exhibit F - Form of Intercreditor Agreement
(iv)
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MULTI-YEAR CREDIT AGREEMENT dated as of December 6, 2001, among SMITHFIELD
FOODS, INC., a Virginia corporation (the "Borrower"), each of the Subsidiaries
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of the Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto or that, pursuant to Section 5.09 hereof, shall become a
"Subsidiary Guarantor" hereunder (individually, a "Subsidiary Guarantor" and,
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collectively, the "Subsidiary Guarantors" and, together with the Borrower, the
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"Obligors"), each of the lenders that is a party hereto identified under the
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caption "LENDERS" on Schedule 2.01 hereto or that, pursuant to Section 10.04
hereof, shall become a "Lender" hereunder (individually, a "Lender" and,
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collectively, the "Lenders") and JPMORGAN CHASE BANK, in its capacity as
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administrative agent for the Lenders hereunder (the "Administrative Agent").
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The Borrower and its subsidiaries are engaged as an integrated group in the
business of pork production, hog farming, pork processing and manufacturing
spices and chemicals, and in related businesses, and in furnishing the required
supplies, services, equipment, credit and other facilities for such integrated
operation. The integrated operation requires financing on such a basis that
credit supplied to the Borrower be made available from time to time to the
Subsidiary Guarantors, as required for the continued successful operation of the
Obligors, separately, and the integrated operation as a whole. In that
connection, the Obligors have requested that the Lenders extend credit to the
Borrower, by means of Dollar and Foreign Currency denominated loans and letters
of credit, in an aggregate amount at any one time outstanding up to but not
exceeding $750,000,000 or its equivalent as herein provided (to be made
available by the Borrower directly or indirectly to the Subsidiary Guarantors
and other of its Subsidiaries in the circumstances specified herein), to finance
the working capital needs and for other general corporate purposes of the
Borrower and its subsidiaries in the ordinary course of business.
The Lenders are willing to so agree, and accordingly, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
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terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
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such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate. ABR Loans may be
denominated only in Dollars.
"Acquisition" means any transaction, or any series of related transactions,
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consummated after the date of this Agreement, by which the Borrower and/or any
of its Subsidiaries (a) acquires any going business or all or substantially all
of the assets of any Person, whether through purchase of assets, merger or
otherwise, (b) directly or indirectly acquires
Multi-Year Credit Agreement
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control of at least a majority (in number of votes) of the securities of a
corporation that have ordinary voting power for the election of directors or (c)
directly or indirectly acquires control of at least a majority of the partner,
member or other ownership interests of any Person that is not a corporation.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
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any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent's Account" means, for each Currency, an account in
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respect of such Currency designated by the Administrative Agent in a notice to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
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form supplied by the Administrative Agent.
"Affected Currency" has the meaning assigned to such term in Section 2.13.
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"Affiliate" means, with respect to a specified Person, another Person that
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directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
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greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Dollar Percentage" means, with respect to any Dollar Lender,
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the percentage of the Total Dollar Sub-Commitment represented by such Dollar
Lender's Dollar Sub-Commitment; provided that if the Dollar Sub-Commitments have
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terminated or expired, the Applicable Dollar Percentages shall be determined
based upon the Total Dollar Sub-Commitment most recently in effect, giving
effect to any assignments.
"Applicable Multicurrency Percentage" means, with respect to any
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Multicurrency Lender, the percentage of the Total Multicurrency Sub-Commitment
represented by such Multicurrency Lender's Multicurrency Sub-Commitment;
provided that if the Multicurrency Sub-Commitments have terminated or expired,
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the Applicable Multicurrency Percentages shall be determined based upon the
Total Multicurrency Sub-Commitment most recently in effect, giving effect to any
assignments.
"Applicable Percentage" means, with respect to any Lender, the percentage
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of the Total Commitment represented by such Lender's Commitments; provided that
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if the
(ii)
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Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Total Commitment most recently in effect, giving
effect to any assignments.
"Applicable Rate" means, with respect to any ABR Loan, Eurocurrency
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Revolving Loan, Federal Funds Loan, Letters of Credit, Swingline Loan, or with
respect to the Commitment Fees payable hereunder, for each Rate Period (as
defined below), the respective rate per annum indicated below for Loans of such
Type or Commitment Fees, as applicable, opposite the applicable Leverage Ratio
(as defined below) indicated below for such Rate Period:
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Eurodollar Loans,
Eurocurrency Loans,
Federal Funds Loans and
Leverage Ratio ABR Loans Letters of Credit Commitment Fees
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Greater than or equal 0.750% 1.750% 0.250%
to 3.25 to 1
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Less than 3.25 to 1 and 0.500% 1.500% 0.225%
greater than or equal
to 2.75 to 1
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Less than 2.75 to 1 and 0.250% 1.250% 0.200%
greater than or equal
to 2.00 to 1
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Less than 2.00 to 1 -0- 1.000% 0.175%
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For purposes hereof, (i) a "Rate Period" means the period commencing on a
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Rate Reset Date to but not including the immediately following Rate Reset Date;
(ii) a "Rate Reset Date" means, with respect to any fiscal quarter or fiscal
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year, the earlier of (x) the date on which the Borrower delivers the certificate
referred to in Section 5.01(c) (a "Compliance Certificate") in respect of such
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fiscal quarter or fiscal year, as the case may be, and (y) the date on which the
Borrower is required to have delivered the financial statements under Section
5.01(a) or (b) in respect of such fiscal quarter or fiscal year, as the case may
be; and (iii) "Leverage Ratio" means, for any Rate Period, the ratio of
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Consolidated Total Funded Debt as at the last day of the fiscal quarter of the
Borrower ending on or most recently prior to the first day of such Rate Period
to Consolidated EBITDA for the period of four fiscal quarters ending on such
last day.
Anything in this Agreement to the contrary notwithstanding, but subject to
Section 2.12(d), the Applicable Rate shall be the applicable rate provided for
in the table set forth above in this definition for periods when the Leverage
Ratio is greater than 3.25 to 1 (x) during
(iii)
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any period when an Event of Default shall have occurred and be continuing or (y)
if the applicable Compliance Certificate shall not be delivered within the time
that the applicable financial statements are required to be delivered by Section
5.01(a) or (b), as the case may be (but only, in the case of this clause (y),
with respect to the portion of such Rate Period prior to the delivery of such
Compliance Certificate).
"Approved Foreign Currency" means, at any time, the Euro; provided that
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with the prior written agreement of all of the Multicurrency Lenders, such term
shall include any other Foreign Currency, that, at such time, (a) is dealt with
in the London interbank market, (b) is freely transferable and convertible into
Dollars in the London foreign exchange market and (c) with respect to which no
central bank or other governmental authorization in the country of issue of such
Foreign Currency is required to permit use of such Foreign Currency by any
Multicurrency Lender for making any Loan hereunder and/or to permit the Borrower
to borrow and repay the principal thereof and to pay the interest thereon,
unless such authorization has been obtained and is in full force and effect.
"Arranger" means JPMorgan Securities Inc.
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"Assignment and Acceptance" means an assignment and acceptance entered into
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by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
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Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
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United States of America.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
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continued on the same date and, in the case of Eurocurrency Loans, denominated
in the same Currency and as to which a single Interest Period is in effect or
(b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed, (b) if such day relates to a Borrowing of, a payment or
prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurocurrency Borrowing denominated in
Dollars, or to a notice by the Borrower with respect to any such Borrowing,
payment, prepayment, continuation, conversion, or Interest Period, that is also
a day on which dealings in deposits denominated in Dollars are carried out in
the London interbank market and (c) if such day relates to a Borrowing or
continuation of, a payment or prepayment of principal of or interest on, or the
Interest Period for, any Borrowing denominated in any Foreign Currency, or
(iv)
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to a notice by the Borrower with respect to any such Borrowing, continuation,
payment, prepayment or Interest Period, that is also a day on which commercial
banks in the London foreign exchange market settle payments in the Principal
Financial Center for such Foreign Currency.
"Capital Lease Obligations" of any Person means the obligations of such
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Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
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indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
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the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or Issuing Bank (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or Issuing Bank's holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"Chase" means JPMorgan Chase Bank.
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"Class", when used in reference to any Loan or Borrowing, refers to whether
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such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral Agent" means Chase, as collateral agent under the Security
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Agreement.
"Commitment" means, with respect to each Lender, the commitment of such
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Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to
(v)
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assignments by or to such Lender pursuant to Section 10.04 (and the "Commitment"
of any Lender shall be deemed to include its Dollar Sub-Commitment and its
Multicurrency Sub-Commitment, if any). The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial amount of the Total Commitment (including the Total Dollar Sub-
Commitment and the Total Multicurrency Sub-Commitment) is $750,000,000.
"Commitment Fee" means the fees payable at the Applicable Rate pursuant to
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Section 2.11(a).
"Consolidated EBITDA" means, for any period, an amount equal to (a) the sum
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for such period of Consolidated Net Income and, to the extent subtracted in
determining such Consolidated Net Income, provisions for (i) taxes based on
income, (ii) Consolidated Interest Expense and (iii) depreciation and
amortization expense minus (b) any items of gain (or plus any items of loss)
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which were included in determining such Consolidated Net Income and were (i) not
realized in the ordinary course of business or (ii) the result of any sale of
assets.
"Consolidated Interest Expense" means, for any period, the consolidated
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interest expense of the Borrower and its Subsidiaries (whether cash or non-cash
interest expense or deferred or accrued interest expense and the interest
portion of all Capital Lease Obligations during such period).
Notwithstanding the foregoing, without limiting Section 6.03(b)(iii) or
6.06(d), Consolidated Interest Expense for any period will be adjusted, on a pro
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forma basis to take into account the effect of any Acquisition or disposition or
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purchase of stock during such period, as if such Acquisition or disposition or
purchase (and any related incurrence or prepayment of Indebtedness) had occurred
on the first day of such period.
"Consolidated Net Income" means, for any period, the net income (or
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deficit) of the Borrower and its Subsidiaries; provided, however, that there
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shall be excluded from Consolidated Net Income (i) the income (or deficit) of
any Person (other than a consolidated Subsidiary) in which the Borrower has an
ownership interest, except to the extent that any such income has been actually
received by the Borrower in the form of dividends or similar distributions, (ii)
the undistributed earnings of any Subsidiary to the extent that the declaration
or payment of dividends or similar distributions of such Subsidiary is
restricted and (iii) any income or gain resulting from any write-up or
revaluation of the assets of the Borrower or its Subsidiaries.
Notwithstanding the foregoing, without limiting Section 6.03(b)(iii), in
determining Consolidated Net Income for any period, appropriate adjustments
shall be made to take into account the effect of any Acquisition or disposition
during such period, as if such Acquisition or disposition had occurred on the
first day of such period.
(vi)
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"Consolidated Total Assets" means, on any date, the aggregate amount of
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assets of the Borrower and its Subsidiaries shown on a consolidated balance
sheet of such Persons at such date.
"Consolidated Total Funded Debt" means the aggregate amount of Funded Debt
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of the Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, minus, to the extent included therein, the outstanding
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amount of the Loans (other than the lowest average daily outstanding balance of
the Loans for any period of 30 consecutive days during the 12 month period then
most recently ended).
"Control" means the possession, directly or indirectly, of the power to
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direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Currency" means Dollars or any Foreign Currency.
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"Debt Issuance" means any issuance or incurrence by the Borrower or any of
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its Subsidiaries of any Indebtedness.
"Debt Service" means, for any period, the sum, for the Borrower and its
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Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all regularly scheduled payments
or prepayments of principal of Indebtedness made during such period plus (b) all
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Interest Expense for such period.
"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the presently pending actions, suits and
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proceedings and the presently existing environmental matters disclosed in
Schedule 3.06.
"Dollar Equivalent" means, with respect to any Borrowing denominated in an
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Approved Foreign Currency, the amount of Dollars that would be required to
purchase the amount of the Foreign Currency of such Borrowing on the date two
Business Days prior to the date of such Borrowing (or, in the case of any
determination made under Section 2.10(b) or redenomination under the last
sentence of Section 2.17(c), or in the case of a redenomination of any other
amount into Dollars as provided herein, on the date of determination or
redenomination therein referred to), based upon the spot selling rate at which
the Administrative Agent offers to sell such Approved Foreign Currency for
Dollars in the London foreign exchange market at approximately 11:00 a.m.,
London time, for delivery two days later, provided that with respect to any
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determination to be made by the Borrower pursuant to Section 5.01(f), such spot
selling rate shall be determined by reference to the spot selling rate set forth
in the Wall Street Journal on the Business Day immediately preceding the date on
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which such determination is to be made.
(vii)
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"Dollar LC Exposure" means, at any time, the sum of (a) the aggregate
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undrawn amount of all outstanding Dollar Letters of Credit at such time plus (b)
the aggregate amount of all LC Disbursements in respect of such Letters of
Credit that have not yet been reimbursed by or on behalf of any Obligor at such
time. The Dollar LC Exposure of any Lender at any time shall be its Applicable
Dollar Percentage of the total Dollar LC Exposure at such time.
"Dollar Lender" means (a) on the Effective Date, the Lenders having Dollar
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Sub-Commitments on Schedule 2.01 hereto under the heading "Dollar Lenders" and
(b) thereafter, the Lenders from time to time holding Loans made pursuant to
Dollar Sub-Commitments or holding Dollar Sub-Commitments, after giving effect to
any assignments thereof permitted by Section 10.04(b).
"Dollar Letters of Credit" means Letters of Credit that utilize the Dollar
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Sub-Commitments.
"Dollar Loan" means a Loan denominated in Dollars.
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"Dollar Sub-Commitment" means, as to each Dollar Lender, the obligation of
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such Dollar Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Dollar Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. The initial amount of each Lender's
Dollar Sub-Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Dollar Sub-
Commitment, as applicable. The initial aggregate amount of the Total Dollar Sub-
Commitment is $710,000,000.
"Dollars" or "$" refers to lawful money of the United States of America.
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"Domestic Subsidiary" means any Subsidiary of the Borrower organized under
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the laws of a State of the United States of America or the District of Columbia.
"Effective Date" has the meaning specified in Section 4.01.
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"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
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orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or
(viii)
<PAGE>
Page
----
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Equity Issuance" means any issuance or sale by the Borrower after the
---------------
Effective Date of any of its capital stock.
"Equity Rights" means, with respect to any Person, any outstanding
-------------
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
---------------
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
-----------
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
------------
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Euros", has the meaning assigned to such term in Section 10.15(a).
-----
"Event of Default" has the meaning assigned to such term in Article VII.
----------------
(ix)
<PAGE>
Page
----
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Banks or any other recipient of any payment to be made by or
on account of any obligation of the Obligors hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which an Obligor is located and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Obligors
under Section 2.18(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.16(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a).
"Existing Credit Agreement" means the Second Amended and Restated Multi-
-------------------------
Year Credit Agreement dated as of December 3, 1999 between the Borrower, the
Subsidiary Guarantors named therein, the Lenders named therein, and Chase, as
Administrative Agent.
"Federal Funds", when used in reference to any Loan or Borrowing, refers to
-------------
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Federal Funds Rate. Federal Funds
Loans may be denominated only in Dollars.
"Federal Funds Effective Rate" means, for any day, the weighted average
----------------------------
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Funds Rate" means the "offered rate", as determined by the
------------------
Administrative Agent, for overnight federal funds.
"Financial Officer" means the chief financial officer, principal accounting
-----------------
officer, treasurer or controller of the Borrower.
"Foreign Currency" means at any time any Currency other than Dollars.
----------------
"Foreign Currency Equivalent" means, with respect to any amount in Dollars,
---------------------------
the amount of a Foreign Currency that could be purchased with such amount of
Dollars using the
(x)
<PAGE>
Page
----
reciprocal of the foreign exchange rate(s) specified in the definition of the
term "Dollar Equivalent", as determined by the Administrative Agent.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Debt" means all Indebtedness which would, in accordance with
-----------
GAAP, constitute long term debt, including:
(a) any Indebtedness with a maturity more than one year after the
creation of such Indebtedness, including any portion thereof in current
liabilities;
(b) any Indebtedness outstanding under a revolving credit or similar
agreement providing for borrowings (and renewals and extensions thereof)
over a period of more than one year notwithstanding that any such
Indebtedness may be payable on demand or within one year after the creation
thereof;
(c) any Capital Lease Obligations; and
(d) any Guarantee with respect to Funded Debt of another Person.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term
--------
(xi)
<PAGE>
Page
----
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Assumption Agreement" means a Guarantee Assumption
------------------------------
Agreement between an Obligor and the Administrative Agent in substantially the
form of Exhibit C hereto.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any swap agreement, cap agreement, collar
-----------------
agreement, put or call, futures contract, forward contract or similar agreement
or arrangement entered into in respect of interest rates, foreign exchange rates
or prices of commodities.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. The Indebtedness
of a Person shall not include obligations of such Person to pay rent under
operating leases to the extent that such obligations do not constitute Capital
Lease Obligations.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Intercreditor Agreement" means an Intercreditor Agreement between the
-----------------------
Borrower (on behalf of itself and its Subsidiaries), the Administrative Agent
and purchasers or holders of Indebtedness issued under Senior Note Documents in
substantially the form of Exhibit F hereto.
(xii)
<PAGE>
Page
----
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the Borrower
----------------
(determined without duplication in accordance with GAAP), of the following: (a)
all interest in respect of Indebtedness accrued or capitalized during such
period (whether or not actually paid during such period) plus (b) the net
----
amounts payable (or minus the net amounts receivable) under Hedging Agreements
-----
related to interest and accrued during such period (whether or not actually paid
or received during such period).
"Interest Payment Date" means (a) with respect to any ABR Revolving
---------------------
Loan, the last day of each March, June, September and December, (b) with respect
to any Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, (c) with respect
to any Federal Funds Revolving Loan, the last day of each month and (d) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurocurrency Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect; provided, that (i) if any
--------
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period and (iii) no Interest Period
shall extend beyond the Maturity Date. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Inventory" means, collectively, "Inventory" and "Farm Products" as
---------
defined in the Security Agreement.
"Investment" means, for any Person: (a) the acquisition (whether for
----------
cash, property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such short sale);
(b) the making of any deposit with, or advance, loan or other extension of
credit to, any other Person (including the purchase of property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such property to such Person, but
(xiii)
<PAGE>
Page
----
excluding any such advance, loan or extension of credit having a term not
exceeding 90 days representing the purchase price of programming, advertising,
inventory or supplies sold in the ordinary course of business); (c) the entering
into of any Guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of any other Person and (without duplication)
any amount committed to be advanced, lent or extended to such Person or (d) any
Hedging Agreement having the commercial effect of a synthetic or derivative
Investment.
"Issuing Bank" means Chase, in its capacity as the issuer of Letters
------------
of Credit hereunder, and its successors in such capacity as provided in Section
2.05(i). Chase may, in its discretion, arrange for one or more Letters of Credit
to be issued by its Affiliates, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate. Any references herein to the "relevant" Issuing Bank shall mean the
issuer of the related Letter of Credit.
"Joint Venture" means any Investment by the Borrower or any of its
-------------
Subsidiaries as a joint venturer or partner in, or lender to, any other Person
(other than a Subsidiary) principally engaged in a business in which the
Borrower and its Subsidiaries are permitted by Section 6.03(c) to be engaged.
"LC Disbursement" means a payment made by an Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, as at any time, the sum of the Dollar LC Exposure
-----------
and the Multicurrency LC Exposure.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
---------
Interest Period and denominated in any Currency, the rate appearing on the
Screen at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits denominated in
such Currency with a maturity comparable to such Interest Period. In the event
that such rate is not available on the Screen at such time for any reason, then
the "LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest
---------
Period shall be the rate at which deposits in such Currency in the amount of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"LIBOR" means, for any Currency, the rate at which deposits
-----
denominated in such Currency are offered to leading banks in the London
interbank market.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title
(xiv)
<PAGE>
Page
----
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities. The interest of a lessor in any property leased
pursuant to an operating lease shall not constitute a Lien over such property
securing obligations of the related lessee to pay rent under such lease to the
extent that such obligations do not constitute Capital Lease Obligations.
"Loan Documents" means this Agreement, any promissory notes evidencing
--------------
Loans hereunder and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Local Time" means, with respect to any Loan denominated in or any
----------
payment to be made in any Currency, the local time in the Principal Financial
Center for the Currency in which such Loan is denominated or such payment is to
be made.
"Margin Stock" means margin stock within the meaning of Regulations U
------------
and X.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
Transactions, (b) the business, assets, operations, property, prospects or
condition, financial or otherwise, of the Obligors taken as a whole, (c) the
ability of any Obligor to perform any of its obligations under this Agreement or
the other Loan Documents or (d) the rights of or benefits available to the
Lenders under this Agreement or the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $10,000,000, provided that if the corresponding
--------
number for events of default of the type described in clauses (f) or (g) of
Article VII as set forth in each of the Senior Note Documents shall be a higher
number, then such $10,000,000 figure shall automatically be increased to such
higher number, except that in no event shall such figure be increased to a
number greater than $25,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Maturity Date" means December 6, 2006; provided that if such date is
------------- --------
not a Business Day the Maturity Date shall be the immediately preceding Business
Day.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multicurrency LC Exposure" means, at any time, the sum of (a) the
-------------------------
aggregate undrawn amount of all outstanding Multicurrency Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements in respect of
such Letters of Credit that have not yet
(xv)
<PAGE>
Page
----
been reimbursed by or on behalf of any Obligor at such time. The Multicurrency
LC Exposure of any Lender at any time shall be its Applicable Multicurrency
Percentage of the total Multicurrency LC Exposure at such time.
"Multicurrency Lender" means (a) on the Effective Date, the Lenders
--------------------
having Multicurrency Sub-Commitments on Schedule 2.01 hereto under the heading
"Multicurrency Lenders" and (b) thereafter, the Lenders from time to time
holding Loans made pursuant to Multicurrency Sub-Commitments or holding
Multicurrency Sub-Commitments, after giving effect to any assignments thereof
permitted by Section 10.04(b).
"Multicurrency Letters of Credit" means Letters of Credit that utilize
-------------------------------
the Multicurrency Sub-Commitments.
"Multicurrency Loan" means a Loan denominated in an Approved Foreign
------------------
Currency.
"Multicurrency Sub-Commitment" means, as to each Multicurrency Lender,
----------------------------
the obligation of such Multicurrency Lender to make Revolving Loans and to
acquire participations in Letters of Credit hereunder, in each case, denominated
in Dollars or in an Approved Foreign Currency, expressed as a Dollar amount
representing the Dollar Equivalent of the maximum aggregate amount of such
Lender's Revolving Multicurrency Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Multicurrency
Sub-Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Multicurrency
Sub-Commitment, as applicable. The initial aggregate amount of the Total
Multicurrency Sub-Commitment is $40,000,000.
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Obligors" means the Borrower and the Subsidiary Guarantors.
--------
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Pari Passu Debt" means any Indebtedness (a) in respect of which the
---------------
Borrower is primarily liable as the borrower and the Subsidiary Guarantors (but
no other Subsidiary) are liable as guarantors, (b) that is secured only by the
Lien created by the Security Agreement and (c) that the Required Lenders consent
to as being treated as Pari Passu Debt. All of the requirements set forth in the
preceding clauses (a), (b) and (c) must be satisfied in order for any
Indebtedness to be Pari Passu Debt.
(xvi)
<PAGE>
Page
----
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(f) Liens securing judgments to the extent, for an amount and for a
period not resulting in an Event of Default under Article VII(k); and
(g) Liens created under the Federal Packers and Stockyards Act, as
amended;
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(xvii)
<PAGE>
Page
----
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above;
(e) common stock of the Borrower; and
(f) capital stock of corporations in similar or related businesses to
that of the Borrower and listed on the New York Stock Exchange, NASDAQ, the
American Stock Exchange.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by Chase as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Financial Center" means, in the case of any Currency, the
--------------------------
principal financial center where such Currency is cleared and settled, as
determined by the Administrative Agent.
"Register" has the meaning set forth in Section 10.04.
--------
"Regulations U and X" means, respectively, Regulations U and X of the
-------------------
Board, as the same may be amended from time to time.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
(xviii)
<PAGE>
Page
----
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any Subsidiary or any option, warrant or other right to acquire any such
shares of capital stock of the Borrower or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its Dollar LC Exposure, Multicurrency LC Exposure and Swingline
Exposure at such time.
"Revolving Dollar Credit Exposure" means, with respect to any Dollar
--------------------------------
Lender at any time, the sum of the outstanding principal amount of such Dollar
Lender's Dollar Loans and its Dollar LC Exposure and Swingline Exposure at such
time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
"Revolving Multicurrency Credit Exposure" means, with respect to any
---------------------------------------
Multicurrency Lender at any time, the sum of the outstanding principal amount of
such Multicurrency Lender's Multicurrency Loans and its Multicurrency LC
Exposure at such time.
"S&P" means Standard & Poor's Ratings Services.
---
"Screen" means, for any Currency, the relevant display page for LIBOR
------
for such Currency (as determined by the Administrative Agent) of the Telerate
Service of Bridge Information Services (or any successor thereto or substitute
therefor); provided that if the Administrative Agent determines that there is no
such relevant display page for LIBOR for such Currency, "Screen" shall mean the
relevant display page for LIBOR for such Currency (as determined by the
Administrative Agent) of the Reuter Monitor Money Rates Service (or any
successor thereto or substitute therefor).
"Security Agreement" means a Collateral Agency and Security Agreement
------------------
between the Obligors and the Administrative Agent in substantially the form of
Exhibit B hereto.
"Security Documents" means the Security Agreement, each Guarantee
------------------
Assumption Agreement, the Intercreditor Agreement and all Uniform Commercial
Code financing statements required by the Security Agreement to be filed with
respect to the security interests in personal property created pursuant to the
Security Agreement and the Guarantee Assumption Agreements.
(xix)
<PAGE>
Page
----
"Security Termination Date" means the date, if any, that the Security
-------------------------
Agreement is terminated in accordance with Section 10.02(c)(ii).
"Senior Note Documents" means, collectively, the following instruments
---------------------
and agreements:
(a) the Amended and Restated Note Purchase Agreement dated as of
October 31, 1999 among the Borrower and the Purchasers referred to therein
relating to the Borrower's $9,852,942 8.41% Series B Senior Secured Notes
due August 1, 2006, the Borrower's $40,000,000 8.34% Series C Senior
Secured Notes due August 1, 2003, the Borrower's $9,000,000 9.80% Series D
Senior Secured Notes due August 1, 2003, the Borrower's $9,250,000 10.75%
Series E Senior Secured Notes due August 1, 2005, the Borrower's
$100,000,000 8.52% Series F Senior Secured Notes due August 1, 2006, the
Borrower's $14,000,000 9.85% Series G Senior Secured Notes due November 1,
2006 and the Borrower's $14,779,412 8.41% Series H Senior Secured Notes due
August 1, 2004,
(b) the Amended and Restated Note Purchase Agreement dated as of
October 27, 1999 among the Borrower and the Purchasers referred to therein
relating to the Borrower's $100,000,000 7.89% Series I Senior Secured Notes
due October 1, 2009, the Borrower's $50,000,000 Variable Rate Series J
Senior Secured Notes due October 1, 2009, the Borrower's $50,000,000 8.44%
Series K Senior Secured Notes due October 1, 2009 and the Borrower's
$25,000,000 LIBOR Rate Series L Senior Secured Notes due October 1, 2009,
(c) the Note Purchase Agreement dated as of June 2, 2000 among the
Borrower and the Purchasers referred to therein relating to the Borrower's
$75,000,000 8.25% Series M Senior Secured Notes due March 2, 2006 and
(d) any other agreement pursuant to which Indebtedness (other than
Indebtedness constituting Subordinated Indebtedness) of the Borrower or any
of its Domestic Subsidiaries is issued pursuant to Section 6.01(f), that is
required to be treated as a "Note Purchase Agreement" for purposes of the
Intercreditor Agreement pursuant to Section 3.03 thereo,
in each case, together with all related guaranties, mortgages and security
agreements permitted under the Intercreditor Agreement.
"Solvent" has the meaning assigned to such term in Section 4.01(j).
-------
"Special Counsel" means Milbank, Tweed, Hadley & McCloy LLP, in its
---------------
capacity as special counsel to Chase, as Administrative Agent of the credit
facility contemplated hereby.
(xx)
<PAGE>
Page
----
"Statutory Reserve Rate" means for any day (or for the Interest Period
----------------------
for any Eurocurrency Borrowing), a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the arithmetic mean of the aggregate of the maximum reserve
-----
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Sub-Commitment" shall refer, as applicable. to a Dollar Sub-
--------------
Commitment or a Multicurrency Sub-Commitment.
"Subordinated Indebtedness" means, collectively, (a) Indebtedness of
-------------------------
the Borrower in respect of its 7-5/8 % Senior Subordinated Notes due 2008,
issued by the Borrower pursuant to an Indenture, dated as of February 9, 1998,
among the Borrower and SunTrust Bank, Atlanta, as trustee, and (b) any
additional Funded Debt of the Borrower (and in respect of which none of its
Subsidiaries is directly or indirectly obligated) that is subordinated to the
obligations of the Borrower to the Lenders hereunder, which is incurred upon
terms and conditions no less favorable to the Borrower and its Subsidiaries (as
determined by the Administrative Agent, in its sole discretion) than the terms
and conditions set forth on the date hereof in the Indenture for the 7-5/8%
Senior Subordinated Notes due 2008 referred to above (except in respect of
interest), which shall have no provisions for a sinking fund or other scheduled
reductions of principal prior to final maturity and which shall have a final
maturity date for the repayment of principal not earlier than the second
anniversary of the Maturity Date.
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
(xxi)
<PAGE>
Page
----
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Dollar Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Chase, in its capacity as lender of Swingline
----------------
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
--------------
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Commitment" means, at any time, the aggregate amount of the
----------------
Commitments as in effect at such time.
"Total Dollar Sub-Commitment" means, at any time, the aggregate amount
---------------------------
of the Dollar Sub-Commitments as in effect at such time.
"Total Multicurrency Sub-Commitment" means, at any time, the aggregate
----------------------------------
amount of the Multicurrency Sub-Commitments as in effect at such time.
"Transactions" means (i) with respect to the Borrower, the execution,
------------
delivery and performance by the Borrower of Loan Documents to which it is a
party, the borrowing of Loans, the use of the proceeds thereof and the issuance
of Letters of Credit hereunder and (ii) with respect to any Obligor (other than
the Borrower), the execution, delivery and performance by such Obligor of the
Loan Documents to which it is a party.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
--------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
----
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
----
Borrowing"). Loans and Borrowings may also be identified by Currency.
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require,
(xxii)
<PAGE>
Page
----
any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will" shall be construed
to have the same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower noti fies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Currencies, Currency Equivalents. At any time, any
--------------------------------
reference in the definition of the term "Approved Foreign Currency" or in any
other provision of this Agreement to the Currency of any particular nation means
the lawful currency of such nation at such time whether or not the name of such
Currency is the same as it was on the date hereof. Except as provided in
Sections 2.10(b) and 2.17(c), for purposes of determining (i) whether the amount
of any Borrowing, together with all other applicable Borrowings then outstanding
or to be borrowed at the same time as such Borrowing, would exceed the aggregate
amount of the Commitments or applicable Sub-Commitments, (ii) the aggregate
unutilized amount of the Commitments or either Sub-Commitment and (iii) the
aggregate outstanding principal amount of Borrowings, the outstanding principal
amount of any Borrowing that is denominated in any Foreign Currency shall be
deemed to be the Dollar Equivalent of the amount of the Foreign Currency of such
Borrowing determined as of the date of such Borrowing (determined in accordance
with the last sentence of the definition of the term "Borrowing"). Wherever in
this Agreement in connection with a Borrowing or Loan an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such Borrowing
or Loan is denominated in a
(xxiii)
<PAGE>
Page
----
Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent
of such Dollar amount (rounded to the nearest 1,000 units of such Foreign
Currency).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
-----------
forth herein:
(a) each Dollar Lender agrees to make Revolving Loans to the Borrower
in Dollars from time to time during the Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving Dollar
Credit Exposure exceeding such Lender's Dollar Sub-Commitment, or the sum
of the total Revolving Credit Exposures exceeding the Total Commitment; and
(b) each Multicurrency Lender agrees to make Revolving Loans to the
Borrower in Dollars or one or more Approved Foreign Currencies from time to
time during the Availability Period in an aggregate principal amount that
will not result in such Lender's Revolving Multicurrency Credit Exposure
exceeding such Lender's Multicurrency Sub-Commitment, or the sum of the
total Revolving Credit Exposures exceeding the Total Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
--------------------
(a) Obligations Several. Each Revolving Loan shall be made as part
-------------------
of a Borrowing consisting of Revolving Loans of the same Currency and Type made
by the applicable Lenders ratably in accordance with their respective applicable
Sub-Commitments. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
--------
that the Commitments (and Sub-Commitments) of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Types. Subject to Section 2.13, each Revolving Borrowing shall
-----
be comprised entirely of ABR Loans, Federal Funds Loans or Eurocurrency Loans
denominated in a single Currency as the Borrower may request in accordance
herewith and each Swingline Loan shall be comprised of a Federal Funds Loan for
the period commencing on the date such Loan is made and ending on the fourth
Business Day thereafter, and from and after the fifth Business Day following
such date shall (automatically and without further action by any Person) be
comprised of an ABR Loan. Each Federal Funds Loan and each ABR Loan (whether a
(xxiv)
<PAGE>
Page
----
Revolving Loan or a Swingline Loan) shall be denominated in Dollars. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
--------
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts. At the commencement of each Interest Period for
---------------
any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000, or (as
applicable) the Foreign Currency Equivalent of said amounts. At the time that
each ABR Borrowing and each Federal Funds Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000; provided that an ABR Borrowing or a Federal Funds
--------
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Total Dollar Sub-Commitment or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each
Swingline Loan shall be in an amount that is an integral multiple of $500,000
and not less than $1,000,000. Borrowings of more than one Class, Currency and
Type may be outstanding at the same time; provided that there shall not at any
--------
time be more than a total of nine Eurocurrency Borrowings outstanding.
(d) Certain Limits on Interest Periods. Notwithstanding any other
----------------------------------
provision of this Agreement, the Borrower shall not be entitled to request, or
to elect to convert or continue, any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Revolving Loan.
---------------------------
(a) Notification to Administrative Agent. To request a Revolving
------------------------------------
Loan, the Borrower shall notify the Administrative Agent of such request by
telephone (i) in the case of a Eurocurrency Borrowing denominated in an Approved
Foreign Currency, not later than 11:00 a.m., New York City time, five Business
Days before the date of the proposed Borrowing, (ii) in the case of a
Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed Borrowing,
(iii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing or (iv) in the
case of a Federal Funds Borrowing, not later than 12:00 noon, New York City
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower.
(b) Content of Notification. Each such telephonic and written
-----------------------
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount and Currency of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(xxv)
<PAGE>
Page
----
(iii) in the case of a Borrowing denominated in Dollars, whether such
Borrowing is to be an ABR Borrowing, a Federal Funds Borrowing or a
Eurocurrency Borrowing and whether such Borrowing shall constitute a
utilization of the Dollar Sub-Commitment or Multicurrency Sub-Commitment;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
(c) Notice by Administrative Agent to Lenders. Promptly following
-----------------------------------------
receipt of a Borrowing Request in accordance with this Section 2.03, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of the amount and Currency of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Certain Presumptions. If no election as to the Currency of a
--------------------
Borrowing is specified in a Borrowing Request, then the Borrower shall be deemed
to have requested a Borrowing denominated in Dollars. If no election as to the
Type of a Borrowing is specified, then the requested Borrowing shall be a
Federal Funds Borrowing unless an Approved Foreign Currency has been specified,
in which case the Borrower shall be deemed to have requested a Eurocurrency
Borrowing denominated in such Approved Foreign Currency. If no election as to
the Sub-Commitment of a Borrowing is specified, then the Borrower shall be
deemed to have requested a Borrowing under the Dollar Sub-Commitment, provided
--------
that, if at such time the Dollar Sub-Commitment shall be fully drawn, then the
Borrower shall be deemed to have requested a Borrowing in Dollars under the
Multicurrency Sub-Commitment.
SECTION 2.04. Swingline Loans.
---------------
(a) Obligation of Swingline Lender. Subject to the terms and
------------------------------
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Availability Period, in Dollars, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$15,000,000, (ii) the sum of the total Revolving Dollar Credit Exposures
exceeding the Total Dollar Sub-Commitment or (iii) the sum of the total
Revolving Credit Exposures exceeding the Total Commitment; provided that the
--------
Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) Requests for Swingline Loans. To request a Swingline Loan, the
----------------------------
Borrower shall notify the Administrative Agent of such request by telephone
(confirmed by telecopy), not later than 3:00 p.m., New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day)
(xxvi)
<PAGE>
Page
----
and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower
with the Swingline Lender (or, in the case of a Swingline Loan made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the relevant Issuing Bank) by 4:00 p.m., New York City time, on
the requested date of such Swingline Loan.
(c) Participation by Other Lenders. The Swingline Lender may by
------------------------------
written notice given to the Administrative Agent not later than 10:00 a.m., New
York City time, on any Business Day require the Dollar Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Dollar Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Dollar Lender,
specifying in such notice such Lender's Applicable Dollar Percentage of such
Swingline Loan or Loans. Each Dollar Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's
Applicable Dollar Percentage of such Swingline Loan or Loans. Each Dollar
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Dollar Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
------- --------
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Dollar Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Dollar Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof. Notwithstanding the foregoing, a Dollar Lender shall not have
any obligation to acquire a participation in a Swingline Loan pursuant to this
paragraph if an Event of Default shall have occurred and be continuing at the
time such Swingline Loan was made and such Lender shall have notified the
Swingline Lender in writing, at least one Business Day prior to the time such
Swingline Loan was made, that such Event of Default has occurred and that such
Lender will not acquire participations in Swingline Loans made while such Event
of Default is continuing.
(xxvii)
<PAGE>
Page
----
(d) Swingline Loans Payable on Demand. All Swingline Loans made
---------------------------------
hereunder shall be payable on demand of the Swingline Lender made at any time
upon the Borrower (and, if not so demanded sooner, in any event shall be payable
as provided in Section 2.09(a) hereof).
SECTION 2.05. Letters of Credit.
-----------------
(a) Obligation to Issue Letters of Credit. Subject to the terms and
-------------------------------------
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit by the Issuing Bank for its own account or for the account of any
Subsidiary Guarantor, either under the Dollar Sub-Commitments or under the
Multicurrency Sub-Commitments, in a form reasonably acceptable to the
Administrative Agent and the relevant Issuing Bank, at any time and from time to
time during the Availability Period. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Requests for Letters of Credit. To request the issuance of a
------------------------------
Letter of Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the
relevant Issuing Bank) to the relevant Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section
2.05), the Currency (which shall be Dollars or an Approved Foreign Currency) and
amount of such Letter of Credit, the name and address of the beneficiary
thereof, whether such Letter of Credit is to be made under the Dollar Sub-
Commitments or the Multicurrency Sub-Commitments and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the relevant Issuing Bank, the Borrower also shall submit a letter
of credit application on the such Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the Dollar LC Exposure shall not exceed $40,000,000 and the total
Revolving Dollar Credit Exposures shall not exceed the Total Dollar Sub-
Commitment, (ii) the Multicurrency LC Exposure shall not exceed $10,000,000 or
the Foreign Currency Equivalent thereof and the total Revolving Multicurrency
Credit Exposures shall not exceed the Total Multicurrency Sub-Commitment and
(iii) the sum of the total Revolving Credit Exposures shall not exceed the Total
Commitment.
(c) Term of Letters of Credit. Each Letter of Credit shall expire at
-------------------------
or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such
(xxviii)
<PAGE>
Page
----
Letter of Credit (or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is five Business Days
prior to the Maturity Date.
(d) Participations by Other Lenders. By the issuance of a Letter of
-------------------------------
Credit (or an amendment to a Letter of Credit increasing the amount thereof),
and without any further action on the part of the Issuing Bank or the Lenders,
(i) in the case of a Dollar Letter of Credit, the Issuing Bank hereby grants to
each Dollar Lender (other than the relevant Issuing Bank), and each Dollar
Lender hereby acquires from such Issuing Bank a participation in such Letter of
Credit equal to such Lender's Applicable Dollar Percentage, and (ii) in the case
of a Multicurrency Letter of Credit, the Issuing Bank hereby grants to each
Multicurrency Lender (other than the relevant Issuing Bank), and each
Multicurrency Lender hereby acquires from such Issuing Bank a participation in
such Letter of Credit equal to such Lender's Applicable Multicurrency Percentage
of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of each Issuing Bank, such Lender's Applicable Dollar Percentage (in the case of
a Dollar Letter of Credit) and such Lender's Applicable Multicurrency Percentage
(in the case of a Multicurrency Letter of Credit) of each LC Disbursement made
by such Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section 2.05, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Dollar Lender and
each Multicurrency Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Dollar Letters of Credit
and Multicurrency Letters of Credit, as the case may be, is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the
Dollar Sub-Commitment or Multicurrency Sub-Commitment, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Obligation of Borrower to Reimburse. If an Issuing Bank shall
-----------------------------------
make any LC Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, New York City time, on (i)
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that the Borrower may, subject to the conditions to borrowing set forth
--------
herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with a Eurocurrency Borrowing of the Currency in which such Letter of
Credit is issued (or in the case of a Borrowing of Dollars) an ABR Revolving
Borrowing, a Federal Funds Borrowing or Swingline Loan in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting Eurocurrency
(xxix)
<PAGE>
Page
----
Borrowing, ABR Revolving Borrowing, Federal Funds Borrowing or Swingline Loan.
If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's Applicable Dollar
Percentage or Applicable Multicurrency Percentage, as the case may be, thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Dollar Percentage or Applicable
Multicurrency Percentage, as the case may be, of the payment then due from the
Borrower, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
------- --------
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the relevant Issuing Bank, the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the relevant Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and such Issuing Bank, as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of Eurocurrency Loans, ABR
Revolving Loans, Federal Funds Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.
(f) Obligation of Borrower Absolute, Etc. The Borrower's obligation
------------------------------------
to reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or this Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower, any Subsidiary or other Affiliate thereof or any other Person
may at any time have against the beneficiary under any Letter of Credit,
the Issuing Bank, the Administrative Agent or any Lender or any other
Person, whether in connection with this Agreement or any other related or
unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(xxx)
<PAGE>
Page
----
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply strictly
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section 2.05,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Neither the Administrative Agent, the Lenders, the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by such Issuing Bank's failure to exercise the
standard of care agreed hereunder (as set forth in the next sentence) to be
applicable when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that the Issuing Bank shall be deemed to have exercised the agreed
standard of care in the absence of gross negligence or wilful misconduct on the
part of such Issuing Bank when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof, and shall be
deemed to have failed to exercise the agreed standard of care only if it shall
have engaged in gross negligence or wilful misconduct when making such
determination (as determined by a court of competent jurisdiction). In
furtherance of the foregoing and without limiting the generality thereof, it is
understood that the Issuing Bank may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with the terms of such
Letter of Credit; provided that, notwithstanding the foregoing, the Issuing Bank
--------
shall have the right, in its sole discretion, to decline to accept such
documents and to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Notification by Issuing Bank to Administrative Agent. The
----------------------------------------------------
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit
issued by it. The Issuing Bank shall promptly notify the Administrative Agent
and the Borrower by telephone (confirmed by telecopy) of such demand for payment
and whether such Issuing Bank has made or will make an LC Disbursement
(xxxi)
<PAGE>
Page
----
thereunder; provided that any failure to give or delay in giving such notice
--------
shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the relevant participating Lenders with respect to any such LC Disbursement.
(h) Interest on LC Disbursements. If an Issuing Bank shall make any
----------------------------
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
(which, in the case of Multicurrency Letters of Credit, shall be converted into
Dollars) shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Loans; provided
--------
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section 2.05, then Section 2.12(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
relevant Issuing Bank, except that interest accrued on and after the date of
payment by any Lender pursuant to paragraph (e) of this Section 2.05 to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Replacement of Issuing Bank. The Issuing Bank may be replaced at
---------------------------
any time by written agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateral. If (i) any Event of Default shall have occurred
---------------
and be continuing, (ii) the aggregate amount of Revolving Dollar Credit Exposure
of all Dollar Lenders hereunder exceeds the Total Dollar Sub-Commitment or (iii)
the aggregate amount of Revolving Multicurrency Credit Exposure of all
Multicurrency Lenders hereunder exceeds the Total Multicurrency Sub-Commitment
then on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in Dollars equal to (x) in the case of the foregoing clause
(i), the LC Exposure as of such date, converting the aggregate Multicurrency LC
Exposure into the Dollar Equivalent thereof at that date and (y) in the case of
the foregoing clauses (ii) and (iii), the
(xxxii)
<PAGE>
Page
----
amount of the relevant excess plus (in each of the cases referred to in the
----
foregoing clauses (i), (ii) and (iii)) any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
--------
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement.
The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
relevant Issuing Bank for LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Obligors under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default or the renewal of
a Letter of Credit or an excess of the Revolving Credit Exposure, as the case
may be, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived or, in the case of a renewal of a Letter of Credit that would
cause the expiration date of such Letter of Credit to extend beyond the Maturity
Date, after all amounts drawn or able to be drawn under Letters of Credit have
been reimbursed by the Borrower or, in the case of an excess of the Revolving
Credit Exposure, after such excess has been eliminated.
(k) Certain Existing Letters of Credit. To the extent that there are
----------------------------------
outstanding on the Effective Date pursuant to the Existing Credit Agreement one
or more letters of credit issued by Chase (as the "Issuing Lender" thereunder)
then, on the Effective Date, each of such letters of credit is hereby designated
a "Dollar Letter of Credit" under and for all purposes of this Agreement. In
that connection, the Borrower hereby represents and warrants to the Issuing
Lender, each Dollar Lender and the Administrative Agent that each such letter of
credit satisfies the requirements of this Section 2.05 (including paragraph (c)
above).
SECTION 2.06. Funding of Borrowings.
---------------------
(a) Manner of Funding. Each Lender shall make each Loan to be made
-----------------
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:00 p.m., Local Time in the location of the Administrative
Agent's Account for the relevant Currency, to the Administrative Agent's Account
for such Currency; provided that Swingline Loans shall be made as provided in
--------
Section 2.04. The Administrative Agent will make such
(xxxiii)
<PAGE>
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----
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to an account of the Borrower maintained with the Administrative
Agent and designated by the Borrower in the applicable Borrowing Request;
provided that Eurocurrency Loans, or ABR Revolving Loans or Federal Funds Loans
--------
made to finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the relevant Issuing
Bank.
(b) Presumption by Administrative Agent. Unless the Administrative
-----------------------------------
Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with
paragraph (a) of this Section 2.06 and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) for the first three Business Days, (A) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation for Loans in the applicable Currency or (B) in the
case of the Borrower, the Federal Funds Effective Rate (or, if such Loan is
denominated in an Approved Foreign Currency, at such other rate as the
Administrative Agent shall determine is appropriate in the circumstances) and
(ii) thereafter, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
------------------
(a) Interest Election Requests. Each Revolving Borrowing initially
--------------------------
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section 2.07; provided,
--------
however, that (i) a Borrowing denominated in one Currency may not be converted
-------
to a Borrowing in a different Currency and (ii) a Eurocurrency Borrowing
denominated in an Approved Foreign Currency may not be converted to a Borrowing
of a different Type. Subject to the foregoing, the Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section 2.07 shall not apply to
Swingline Borrowings, which may not be converted or continued.
(xxxiv)
<PAGE>
Page
----
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then (A) no outstanding
Borrowing denominated in Dollars may be converted to or continued as a
Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency Borrowing
denominated in Dollars shall be converted to an ABR Borrowing at the end of the
Interest Period therefor and (C) no outstanding Eurocurrency Borrowing
denominated in an Approved Foreign Currency may have an Interest Period of more
than one month's duration.
(b) Notification by Borrower. To make an election pursuant to this
------------------------
Section 2.07, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Content of Notifications. Each telephonic and written Interest
------------------------
Election Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
Federal Funds Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Notice by Administrative Agent to Lenders. Promptly following
-----------------------------------------
receipt of an Interest Election Request, the Administrative Agent shall advise
each applicable Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Certain Presumptions. If the Borrower fails to deliver a timely
--------------------
Interest Election Request with respect to a Eurocurrency Borrowing prior to the
end of the Interest Period
(xxxv)
<PAGE>
Page
----
applicable thereto, then, unless such Borrowing is repaid as provided herein,
(i) if such Borrowing is denominated in Dollars, at the end of such Interest
Period such Borrowing shall be converted to a Federal Funds Borrowing, and (ii)
if such Borrowing is denominated in a Foreign Currency, the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
SECTION 2.08. Termination or Reduction of Commitments.
---------------------------------------
(a) Scheduled Termination. Unless previously terminated, the
---------------------
Commitments shall terminate on the Maturity Date.
(b) Voluntary Reductions. The Borrower may at any time terminate, or
--------------------
from time to time reduce, the Commitments (and Sub-Commitments); provided that
--------
(i) each reduction of the Commitments (and of either Sub-Commitment) shall be in
an amount that is an integral multiple of $5,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
(and either Sub-Commitment) if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.10, the sum of the Revolving Credit
Exposures would exceed the Total Commitment, the sum of the Revolving Dollar
Credit Exposure would exceed the Total Dollar Sub-Commitment or the sum of the
Revolving Multicurrency Credit Exposures would exceed the Total Multicurrency
Sub-Commitment.
(c) Notifications, Etc. The Borrower shall notify the Administrative
------------------
Agent of (i) any election to terminate or reduce the Commitments under paragraph
(b) of this Section 2.08, and (ii) in the case of a reduction, the amount of
such reduction (if any) to be allocated to the Dollar Sub-Commitment and
Multicurrency Sub-Commitment hereunder, at least three Business Days prior to
the effective date of such termination or reduction, specifying such election,
the aggregate amount of a reduction and any allocation as aforesaid, and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section 2.08 shall be
irrevocable; provided that a notice of termination of the Commitments delivered
--------
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments (and of Sub-Commitments) shall be permanent. Each
reduction of the Commitments and Sub-Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments and Sub-Commitments, as
the case may be.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment of Loans. The Borrower hereby unconditionally promises
------------------
to pay (i) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to
the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of the date such repayment is demanded
(xxxvi)
<PAGE>
Page
----
pursuant to Section 2.04(d) hereof, the Maturity Date and the first date after
such Swingline Loan is made that is the 15th or last day of a calendar month and
is at least two Business Days after such Swingline Loan is made; provided that
--------
on each date that a Revolving Borrowing is made, the Borrower shall repay all
Swingline Loans then outstanding.
(b) Maintenance of Accounts by Lenders. Each Lender shall maintain
----------------------------------
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts and Currency of principal and interest
payable and paid to such Lender from time to time hereunder.
(c) Maintenance of Accounts by Administrative Agent. The
-----------------------------------------------
Administrative Agent shall maintain accounts in which it shall record (i) the
amount and Currency of each Loan made hereunder, the Sub-Commitment, Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount and
Currency of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount and
Currency of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) Effect of Entries. The entries made in the accounts maintained
-----------------
pursuant to paragraph (b) or (c) of this Section 2.09 shall be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
--------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Promissory Notes. Any Lender may request that Loans of any Sub-
----------------
Commitment made by it be evidenced by a promissory note. In such event, the
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
10.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
-------------------
(a) Voluntary Prepayments. The Borrower shall have the right at any
---------------------
time and from time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section 2.10 and
provided that the aggregate principal amount of any prepayment that does not
result in the prepayment of a Borrowing in full shall be in an integral multiple
of $1,000,000 (or the Foreign Currency Equivalent of such amount).
(xxxvii)
<PAGE>
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----
(b) Mandatory Prepayments. On each date on which a certificate is
---------------------
delivered pursuant to Section 5.01(f), the Borrower shall (as provided in
Section 5.01(f)) determine the aggregate Revolving Credit Exposure (taking into
account the Dollar Equivalent of the aggregate amount of Revolving Credit Loans
denominated in any Approved Foreign Currency), and shall provide the
Administrative Agent with a copy of such determination. In addition, promptly
upon the receipt by the Administrative Agent of a Currency Valuation Notice (as
defined below), the Administrative Agent shall (and at any time at the
Administrative Agent's option, the Administrative Agent may) similarly determine
the aggregate Revolving Credit Exposure. Upon receipt of any such determination
from the Borrower, and upon its making any such determination, the
Administrative Agent shall promptly notify the Lenders thereof (and in the case
of any such determination by the Administrative Agent, the Borrower). If on the
date of any such determination the aggregate Revolving Credit Exposure exceeds
105% of the aggregate amount of the Commitments as then in effect, the Borrower
shall, if requested by the Required Lenders (through the Administrative Agent),
prepay the Revolving Loans and Swingline Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(j)) in such amounts as shall be necessary
so that after giving effect thereto, the aggregate Revolving Credit Exposure
does not exceed the Commitments. For purposes hereof, "Currency Valuation
------------------
Notice" means a notice given by the Required Lenders stating that such notice is
------
a "Currency Valuation Notice" and requesting that the Administrative Agent
determine the Dollar Equivalent of the aggregate Revolving Credit Exposure. The
Administrative Agent shall not be required to make more than one valuation
determination pursuant to a Currency Valuation Notice during any rolling three-
month period.
For the purpose of the determinations in this paragraph (b), the
outstanding principal amount of any Loan that is denominated in an Approved
Foreign Currency shall be deemed to be the Dollar Equivalent of the amount in
the Currency of such Loan, determined as of the date of such determination or,
in the case of a Currency Valuation Notice received by the Administrative Agent
prior to 11:00 a.m., New York City time, on a Business Day, on such Business Day
or, in the case of a Currency Valuation Notice otherwise received, on the first
Business Day after such Currency Valuation Notice is received.
(c) Notification of Prepayments. The Borrower shall notify the
---------------------------
Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing,
not later than 11:00 a.m., New York City time (or, in the case of a Borrowing
denominated in an Approved Foreign Currency, 11:00 a.m., London time), three
Business Days before the date of prepayment, (ii) in the case of prepayment of
an ABR Revolving Borrowing or a Federal Funds Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of prepayment or
(iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon,
New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall identify the Borrowing to be prepaid (specifying the
Currency thereof), the prepayment date and the principal amount of such
Borrowing or portion thereof to be prepaid; provided that, if a notice of
--------
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then
(xxxviii)
<PAGE>
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such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent shall advise
the applicable Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees.
----
(a) Commitment Fees. The Borrower agrees to pay to the
---------------
Administrative Agent for the account of each Lender a Commitment Fee, which
shall accrue at the Applicable Rate on the daily unused amount of the Commitment
of such Lender during the period from and including the date hereof to but
excluding the date on which such Commitment terminates. For purposes of this
Section 2.11(a) only, Swingline Loans shall not be deemed to constitute a use of
any Lender's Commitment. Accrued Commitment Fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof; provided that any Commitment Fees accruing after the date
--------
on which the Commitments terminate shall be payable on demand. All Commitment
Fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
---------------------
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
Applicable Rate for Letters of Credit on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, (ii) to the
relevant Issuing Bank a fronting fee, which shall accrue at the rate of 1/8 of
1% per annum on the average daily amount of such Issuing Bank's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, and (iii) to the relevant Issuing Bank its
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
--------
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other fees
payable to an Issuing Bank pursuant to this paragraph shall be payable within 10
days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of
(xl)
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360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) Administrative Agent's Fees. The Borrower agrees to pay to the
---------------------------
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Manner of Payment. All fees payable hereunder shall be paid on
-----------------
the dates due, in Dollars and immediately available funds, to the Administrative
Agent (or to the relevant Issuing Bank, in the case of fees payable to it) for
distribution, in the case of Commitment Fees, and participation fees, to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest.
--------
(a) ABR Borrowings. The Loans comprising each ABR Borrowing
--------------
(including each Swingline Loan comprised of an ABR Borrowing in accordance with
Section 2.02(b)) shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) Federal Funds Borrowings. The Loans comprising each Federal
------------------------
Funds Borrowing (including each Swingline Loan comprised of a Federal Funds
Borrowing in accordance with Section 2.02(b)) shall bear interest at the Federal
Funds Rate plus the Applicable Rate.
(c) Eurocurrency Borrowings. The Loans comprising each Eurocurrency
-----------------------
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.
(d) Default Rate. Notwithstanding the foregoing, if any principal of
------------
or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section 2.12 or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section 2.12.
(e) Interest Payment Dates. Accrued interest on each Loan shall be
----------------------
payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (i) interest accrued pursuant to
--------
paragraph (d) of this Section 2.12 shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan or a Federal Funds Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Revolving Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(xl)
***************
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(f) Computation. All interest hereunder shall be computed on the
-----------
basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, the Federal Funds Rate and Adjusted LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
--------------------------
commencement of any Interest Period for a Eurocurrency Borrowing (the Currency
of such Borrowing being herein called the "Affected Currency"):
-----------------
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for the Affected Currency for
such Interest Period; or
(b) the Administrative Agent is advised by Lenders of the affected
Sub-Commitment having more than 50% of such Sub-Commitment that the
Adjusted LIBO Rate for the Affected Currency for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
affected Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and such Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurocurrency Borrowing denominated in the
Affected Currency shall be ineffective and, if the Affected Currency is Dollars,
such Borrowing (unless prepaid) shall be continued as, or converted to, a
Federal Funds Borrowing, (ii) if the Affected Currency is Dollars and any
Borrowing Request requests a Eurocurrency Borrowing denominated in Dollars, such
Borrowing shall be made as a Federal Funds Borrowing and (iii) if the Affected
Currency is a Foreign Currency, any Borrowing Request that requests a
Eurocurrency Borrowing denominated in the Affected Currency shall be
ineffective.
SECTION 2.14. Increased Costs.
---------------
(a) Change in Law. If any Change in Law shall:
-------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(xli)
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----
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender or the relevant Issuing Bank, as the case may be, in
Dollars, such additional amount or amounts as will compensate such Lender or the
relevant Issuing Bank for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or Issuing Bank determines
--------------------
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or Issuing Bank's capital
or on the capital of such Lender's or Issuing Bank's holding company, if any, as
a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender, such Issuing Bank or such
Lender's or Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or such Issuing Bank's
policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or Issuing Bank, as the case may be, in Dollars, such
additional amount or amounts as will compensate such Lender or Issuing Bank or
such Lender's or Issuing Bank's holding company for any such reduction suffered.
(c) Certificate from Lenders, Etc. A certificate of a Lender or an
-----------------------------
Issuing Bank setting forth the amount or amounts, in Dollars, necessary to
compensate such Lender or Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section 2.14 shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or Issuing Bank, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Retroactive Requests. Failure or delay on the part of any Lender
--------------------
or Issuing Bank to demand compensation pursuant to this Section 2.14 shall not
constitute a waiver of such Lender's or Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
--------
Lender or an Issuing Bank pursuant to this Section 2.14 for any increased costs
or reductions incurred more than 270 days prior to the date that such Lender or
Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or
Issuing Bank's intention to claim compensation therefor; provided further that,
-------- -------
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
(xlii)
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----
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
----------------------
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(c) and is revoked in accordance therewith) or (d) the
assignment of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan, denominated in the Currency of such Loan, had such event not occurred, at
the Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over
----
(ii) the amount of interest which would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits of a comparable amount and period,
denominated in such Currency from other banks in the Eurocurrency market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section 2.15 shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes.
-----
(a) Payment for Taxes. Any and all payments by or on account of any
-----------------
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Other Taxes. In addition, the Borrower shall pay any Other Taxes
-----------
to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by Borrower. The Borrower shall indemnify the
---------------------------
Administrative Agent, each Lender and each Issuing Bank, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative
(xliii)
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----
Agent, such Lender or such Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.16) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
an Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) Receipts. As soon as practicable after any payment of
--------
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Exemptions. Upon becoming a party to this Agreement, each
----------
Foreign Lender represents and warrants to the Borrower that it is, on the date
such Foreign Lender becomes a party hereto, entitled to complete exemption from
withholding tax under the laws of the jurisdiction in which the Borrower is
located, or under any treaty to which such jurisdiction is a party, for payments
made to it by the Borrower hereunder. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
(f) Refunds or Credits. If any Lender or the Administrative Agent
-------------------
(i) receives a refund from a taxation authority in respect of any Indemnified
Taxes or Other Taxes with respect to which the Borrower has paid additional
amounts hereunder or (ii) claims any credit or other tax benefit (such credit to
include any increase in any foreign tax credit) with respect to any Taxes or
Other Taxes for which it has been indemnified by the Borrower and with respect
to which the Borrower has paid additional amounts hereunder which refund, credit
or other tax benefit in the sole judgment of such Lender or the Administrative
Agent is directly attributable to any such Indemnified Tax or Other Tax paid,
such Lender or the Administrative Agent shall promptly pay over to the Borrower
the amount of such refund, credit or other tax benefit (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund or
credit), net of all out-of-pocket expenses (including any taxes on a refund or
on interest received or credited) which such Lender or the Administrative Agent
certifies that it has reasonably determined to have been incurred in connection
with obtaining such refund, credit or other tax benefit; provided, however, that
-------- -------
(i) the Borrower agrees to repay, upon the request of such Lender or the
Administrative Agent, the amount paid over to the Borrower (plus penalties,
interest or other
(xliv)
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----
charges) to such Lender or the Administrative Agent in the event such Lender or
the Administrative Agent is required to repay such refund or credit to such tax
authority, (ii) such Lender or the Administrative Agent, as the case may be,
shall have no obligation to cooperate with respect to any contest (or continue
to cooperate with respect to any contest), or to seek or claim any refund,
credit or other tax benefit if such Lender or the Administrative Agent
determines that its interest would be materially adversely affected by so
cooperating (or continuing to cooperate) or by seeking or claiming any such
refund, credit or other tax benefit and (iii) the Borrower shall not have any
right to examine the tax returns or other records of any Lender or the
Administrative Agent or to obtain any information with respect thereto by reason
of the provisions of this Section or any judgment or determination made by any
Lender or the Administrative Agent pursuant to this Section.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
-----------------------------------------------------------
(a) Manner of Payment. The Borrower shall make each payment required to be
-----------------
made by it hereunder and under the other Loan Documents (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, Local Time in the
location of the Administrative Agent's Account for the relevant Currency, on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent's Account
for the relevant Currency, except that payments to be made directly to an
Issuing Bank or the Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute, in like Currency and funds, any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof.
(b) Payments on Non-Business Days. If any payment hereunder shall be due
-----------------------------
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
(c) Currency of Payments. All amounts owing under this Agreement
--------------------
(including Commitment Fees, payments required under Section 2.14, and payments
required under Section 2.15 relating to any Loan denominated in Dollars) or
under any other Loan Document (except to the extent otherwise provided therein)
are payable in Dollars, provided that all payments of principal of and interest
--------
on any Loan denominated in an Approved Foreign Currency, and all payments
relating to such Loans under Section 2.15 should be payable in such Foreign
Currency. Notwithstanding the foregoing, if the Borrower shall fail to pay any
principal of any Loan when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), the unpaid portion of such Loan shall, if
such Loan is not denominated in Dollars, automatically be redenominated in
Dollars on the due date thereof (or, if such due date is a day other than the
last
(xlv)
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----
day of the Interest Period therefor, on the last day of such Interest Period) in
an amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such principal shall be payable on demand; and if the
Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall automatically be redenominated in Dollars on the
due date therefor (or, if such due date is a day other than the last day of the
Interest Period therefor, on the last day of such Interest Period) in an amount
equal to the Dollar Equivalent thereof on the date of such redenomination and
such interest shall be payable on demand.
(d) Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (i) each Borrowing of Dollar Loans or Multicurrency Loans in a
particular Currency from the Lenders under Section 2.01 hereof shall be made
from the relevant Lenders, each payment of Commitment Fees or of participation
fees under Section 2.11 hereof in respect of the Dollar Sub-Commitment or the
Multicurrency Sub-Commitment shall be made for account of the relevant Lenders,
and each termination or reduction of the amount of the Commitment, Dollar Sub-
Commitment or Multicurrency Sub-Commitment under Section 2.08 hereof shall be
applied to the respective Commitments and Sub-Commitments of the relevant
Lenders, pro rata according to the amounts of their respective Commitments or
Sub-Commitments; (ii) the making, conversion and continuation of Loans of a
particular Type and Currency (other than conversions provided for by Section
2.13 hereof) shall be made pro rata among the relevant Lenders according to the
amounts of their respective Sub-Commitments (in the case of the making of Loans)
or their respective Loans (in the case of conversions and continuations of
Loans) and the then current Interest Period for each Eurocurrency Loan, as
applicable, shall be coterminous; (iii) each payment or prepayment of principal
of Dollar Loans or of Multicurrency Loans by the Borrowers shall be made for
account of the Dollar Lenders and the Multicurrency Lenders, as applicable, pro
rata in accordance with the respective unpaid principal amounts of the Dollar
Loans and Multicurrency Loans held by them; and (iv) each payment of interest on
Dollar Loans and Multicurrency Loans by the Borrowers shall be made for account
of the relevant Lenders pro rata in accordance with the amounts of interest on
such Dollar Loans and Multicurrency Loans then due and payable to the respective
Lenders.
(e) Manner of Application if Insufficient Funds. If at any time
-------------------------------------------
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(f) Sharing of Payments. If any Lender shall, by exercising any
-------------------
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon
(xlvi)
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than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
--------
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Obligor pursuant to and in accordance with the express terms
of this Agreement or the other Loan Documents or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Obligor
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Obligor in the amount of such participation.
(g) Presumption by Administrative Agent. Unless the Administrative
-----------------------------------
Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or
the Issuing Banks hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the relevant Issuing Bank, as the case may be, the
amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Banks, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each day
from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(h) Withholding by Administrative Agent of Certain Payments. If any
-------------------------------------------------------
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.17(g), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
(xlvii)
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SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Change of Lending office. If any Lender requests compensation
------------------------
under Section 2.14, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14 or 2.16 as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
----------------------
under Section 2.14, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
--------
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
(xlviii)
<PAGE>
SECTION 3.01. Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
-----------------------------
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each of this Agreement
and the other Loan Documents has been duly executed and delivered by each
Obligor and constitutes a legal, valid and binding obligation of each Obligor,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except for filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Borrower or
any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) except for the Lien created by the Security Documents, will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Statements. The Borrower has heretofore furnished to
--------------------
the Lenders (i) its consolidated balance sheet, statements of income,
stockholders equity and cash flows and pro forma information as of and for the
--- -----
fiscal year ended April 29, 2001, reported on by Arthur Andersen LLP,
independent public accountants and (ii) its consolidated balance sheet,
statements of income, stockholders equity and cash flows and pro forma
--- -----
information as of and for the fiscal period ended July 29, 2001. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
(b) No Material Adverse Change. Since April 29, 2001, there has been
--------------------------
no event, development or circumstance that has had or could reasonably be
expected to have a Material
(xlix)
<PAGE>
Page
----
Adverse Effect, except as reflected in the financial statements referred to in
Section 3.04(a) as of and for the fiscal period ended July 29, 2001.
(c) No Material Undisclosed Liabilities. The Borrower does not have
-----------------------------------
on the date of this Agreement any contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments in each case that are material, except as
referred to or reflected in the balance sheets as at April 29, 2001 and July 29,
2001 referred to above.
SECTION 3.05. Properties.
----------
(a) Title to Properties. Each of the Borrower and its Subsidiaries
-------------------
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
materially interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its Subsidiaries
---------------------
owns, or is licensed to use, all trademarks, trade names, copyrights, patents
and other intellectual property material to its business, and the use thereof by
the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) Litigation. There are no actions, suits or proceedings by or
----------
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which an adverse determination is reasonably
likely and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii)
that involve this Agreement, the other Loan Documents or the Transactions.
(b) Environmental Matters. Except with respect to any other matters
---------------------
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Disclosed Matters. Since the Effective Date, there has been no
-----------------
change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect. As of the Effective Date, the Borrower does not
believe that the Disclosed Matters individually or in the aggregate are
reasonably likely to have a Material Adverse Effect.
(l)
<PAGE>
Page
----
SECTION 3.07. Compliance with Laws and Agreements. Each of the
-----------------------------------
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
-------------------------------------
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
-----
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $55,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $55,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower and its Subsidiaries have
----------
disclosed to the Lenders all agreements, instruments and corporate or other
restrictions to which they are subject, and all other matters known to them,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Obligors to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
--------
with respect to projected financial information, the Obligors represent only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
(li)
<PAGE>
Page
----
SECTION 3.12. Regulations U and X. Neither the Borrower nor any of its
-------------------
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 3.13. Material Agreements and Liens.
-----------------------------
(a) Indebtedness. Part A of Schedule 3.13 hereto is a complete and
------------
correct list, as of the Effective Date, of each credit agreement, loan
agreement, indenture, note purchase agreement, guarantee, letter of credit or
other arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or guarantee
by, the Borrower or any of its Subsidiaries (including the Senior Note
Documents) the aggregate principal or face amount of which equals or exceeds (or
may equal or exceed) $3,000,000 and the aggregate principal or face amount
outstanding or that may become outstanding under each such arrangement is
correctly described in Part A of said Schedule 3.13.
(b) Liens. Part B of Schedule 3.13 hereto is a complete and correct
-----
list, as of the Effective Date, of each Lien securing Indebtedness of any Person
covering any property of the Borrower or any of its Subsidiaries, and the
aggregate Indebtedness secured (or which may be secured) by each such Lien and
the property covered by each such Lien is correctly described in Part B of said
Schedule 3.13.
SECTION 3.14. Subsidiaries, Etc.
-----------------
(a) Subsidiaries. Set forth in Part A of Schedule 3.14 hereto is a
------------
complete and correct list, as of the Effective Date, of all of the Subsidiaries
of the Borrower, together with, for each Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule 3.14
hereto, (x) each of the Borrower and its Subsidiaries owns, free and clear of
Liens (other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule 3.14 hereto, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
(b) Investments. Set forth in Part B of Schedule 3.14 hereto is a
-----------
complete and correct list, as of the Effective Date, of all Investments (other
than Investments disclosed in Part A of said Schedule 3.14 hereto) held by the
Borrower or any of its Subsidiaries in Person and, for each such Investment, (x)
the identity of the Person or Persons holding such Investment and (y) the nature
of such Investment. Except as disclosed in Part B of Schedule 3.14 hereto, each
of
(lii)
<PAGE>
Page
----
the Borrower and its Subsidiaries owns, free and clear of all Liens (other than
Liens created pursuant to the Security Documents), all such Investments.
SECTION 3.15. Solvency. On and as of the Effective Date, immediately
--------
prior to and after consummation of the Transactions and after giving effect to
all Loans and other obligations and liabilities being incurred on such date in
connection therewith, and on the date of each subsequent Loan or other extension
of credit hereunder and after giving effect to application of the proceeds
thereof in accordance with the terms of the Loan Documents, the Borrower and its
Subsidiaries, taken as a whole, are, and each Obligor is, and will be Solvent.
SECTION 3.16. Labor Matters. On and as of the Effective Date, there
-------------
are no material strikes, lockouts or slowdowns against the Borrower or any of
its Subsidiaries pending or, to the knowledge of the Borrower, threatened, which
could reasonably be expected to result in a Material Adverse Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The obligation of the Lenders to extend
--------------
credit hereunder shall not become effective until the date (the "Effective
---------
Date"), on which the Administrative Agent shall notify the Borrower that each of
----
the following conditions is satisfied (or waived in accordance with Section
10.02), provided that such effectiveness shall in any event occur on or before
--------
December 14, 2001):
(a) Execution of Agreement. The Administrative Agent (or Special
----------------------
Counsel) shall have received from each Obligor and each Lender either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) Corporate Documents. The Administrative Agent shall have
-------------------
received such documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization, existence and
good standing of each Obligor, the authorization of the Transactions and
any other legal matters relating to each Obligor, this Agreement, the other
Loan Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(c) Officer's Certificate. The Administrative Agent shall have
---------------------
received a certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and
(b) of Section 4.02.
(liii)
<PAGE>
Page
----
(d) Opinion of Counsel to Obligors. The Administrative Agent shall
------------------------------
have received a favorable written opinion (addressed to the Administrative Agent
and the Lenders and dated the Effective Date) of McGuire Woods Battle & Boothe
LLP, counsel for the Obligors, substantially in the form of Exhibit D, and
covering such other matters relating to the Obligors, this Agreement, the other
Loan Documents or the Transactions as the Required Lenders shall reasonably
request (and the Borrower hereby requests such counsel to deliver such opinion).
(e) Opinion of Special Counsel. The Administrative Agent shall have
--------------------------
received a favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of Special Counsel substantially in
the form of Exhibit E hereto (and the Administrative Agent hereby requests such
counsel to deliver such opinion).
(f) Security Documents. The Administrative Agent (or Special
------------------
Counsel) shall have received (i) the Security Agreement and the Intercreditor
Agreement, duly executed and delivered by each of the intended parties thereto
and (ii) evidence that duly completed and executed Uniform Commercial Code
Financing Statements covering the personal property subject to the Liens created
by the Security Agreement have been duly filed in all jurisdictions in which
such filing is necessary or appropriate and that such filings are current and in
full force and effect as of the Effective Date.
(g) Lien Searches. The Administrative Agent (or Special Counsel)
-------------
shall have received a copy of the results of such Uniform Commercial Code, tax
and judgment searches as may be requested by the Administrative Agent in each
relevant jurisdiction with respect to the Borrower and its Subsidiaries and
which searches reveal no Liens on any asset of the Borrower or its Subsidiaries
except for (i) Liens permitted under this Agreement and (ii) Liens to be
discharged on or prior to the Effective Date pursuant to documentation
satisfactory to the Administrative Agent.
(h) Termination of Existing Credit Agreement. The Administrative
----------------------------------------
Agent shall have received evidence that all Commitments to extend credit under
the Existing Credit Agreement have been or are simultaneously being terminated
and that all loans thereunder and other amounts payable in respect thereof have
been or are simultaneously being paid in full, and that arrangements for the
termination of the Liens thereunder (or transfer of the Liens created thereunder
to the Administrative Agent hereunder) shall have been completed in a manner
satisfactory to the Administrative Agent.
(i) Solvency Certificate. The Administrative Agent (or Special
--------------------
Counsel) shall have received a certificate of the Borrower, to the effect that,
as of the Effective Date (after giving effect to the Transactions), (a) the
aggregate value of all properties of the Borrower and its Subsidiaries at their
present fair saleable value (i.e., the amount which may be realized within a
reasonable time, considered to be six months to one year, either through
collection or sale at the regular market value, regular market value to mean the
amount which could be obtained for the property in question within such period
by a
(liv)
<PAGE>
Page
----
capable and diligent business person from an interested buyer who is
willing to purchase under ordinary selling conditions), exceeds the
aggregate amount of all the debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Borrower and
its Subsidiaries, (b) the Borrower and its Subsidiaries will not, on a
consolidated basis, have an unreasonably small capital with which to
conduct their business operations as contemplated to be conducted and (c)
the Borrower and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature
(satisfaction of items (a) through (c) of this paragraph (i) is herein
referred to as being "Solvent").
-------
(j) Fees, Etc. The Administrative Agent, the Lenders and the
---------
Arranger shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Obligors hereunder.
(k) Other Documents. The Administrative Agent shall have received
---------------
such other documents as the Administrative Agent or any Lender or Special
Counsel may reasonably request.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
-----------------
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Obligors set forth in this Agreement and the other Loan
Documents shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) Absence of Default. At the time of and immediately after giving
------------------
effect to such Borrowing or the issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, no Default shall have occurred and
be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section 4.02.
(lv)
<PAGE>
Page
----
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
------------------------------ -----------
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
(i) its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by Arthur Andersen LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like modification, qualification or exception and
without any modification, qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied and (ii)
its consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a
consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, (i) its consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year and (ii) its
consolidating balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis or consolidating basis, as the case may be, in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(lvi)
<PAGE>
Page
----
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations of the Leverage Ratio (as defined in the definition
of "Applicable Rate" set forth in Section 1.01) as at the last day of the
fiscal quarter or fiscal year, as the case may be, in respect of which such
financial statements are delivered, and demonstrating compliance with
Section 6.12 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Borrower to its shareholders generally, as the case may be;
(f) if, as at the last day of any quarterly accounting period, any
Multicurrency Borrowings shall be outstanding, then as soon as available
and in any event within 5 Business Days after the end of such quarterly
accounting period, a certificate of a Financial Officer in form and detail
satisfactory to the Administrative Agent setting forth a determination of
the aggregate Revolving Credit Exposure as at the last day of such monthly
accounting period (taking into account the Dollar Equivalent of the
aggregate amount of Revolving Credit Loans denominated in any Approved
Foreign Currency); and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
--------------------------
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate
(lvii)
<PAGE>
Page
----
thereof that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $250,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
------------------------------
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
--------
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
----------------------
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
------------------------------------
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. 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 are 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 any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
(lviii)
<PAGE>
Page
----
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause
--------------------
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority, including all Environmental Laws, and with all
other material obligations, applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit.
-------------------------------------
(a) Use of Proceeds. The proceeds of the Loans hereunder will be
---------------
used only for working capital and other general corporate purposes of the
Borrower and its Subsidiaries. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X.
(b) Letters of Credit. Letters of Credit will be issued only to
-----------------
support obligations of the Borrower and its Subsidiaries.
SECTION 5.09 Further Assurances. The Borrower may at any time and from
------------------
time to time cause any of its Subsidiaries to become a Subsidiary Guarantor
hereunder and under the Security Agreement pursuant to a Guarantee Assumption
Agreement in the form of Exhibit C hereto. Each such new Subsidiary Guarantor
shall deliver such proof of corporate action, incumbency of officers, opinions
of counsel and other documents as is consistent with those delivered by the
Obligors pursuant to Section 4.01 upon the Effective Date or as the
Administrative Agent shall have requested (and the Company hereby instructs such
counsel to deliver such opinions to the Lenders).
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit
------------
any Subsidiary to, create, incur or assume any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Pari Passu Debt;
(lix)
<PAGE>
Page
----
(c) any extensions, renewals or replacements of any Indebtedness
existing on the date hereof and set forth in Schedule 6.01, provided that
the aggregate principal amount of such Indebtedness is not thereby
increased;
(d) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(e) other Indebtedness in an aggregate principal amount not exceeding
$20,000,000 created, incurred or assumed in any fiscal year of the
Borrower; and
(f) other Indebtedness provided that, on the date (the "Incurrence
-------- ----------
Date") such Indebtedness is created, incurred or assumed (as the case may
----
be), the Borrower furnishes to the Administrative Agent reasonable
projections demonstrating in reasonable detail that the Borrower will be in
compliance with Section 6.12(b) on the last day of each of the next
succeeding four fiscal quarters of the Borrower that end after the
Incurrence Date after giving effect to such creation, incurrence or
assumption, together with a certificate of a Financial Officer to the
effect that such projections are based upon reasonable assumptions and
reflect the Borrower's best estimate as to the matters covered thereby.
For purposes of the foregoing paragraphs (e) and (f), the Acquisition of any
Person shall be deemed to constitute the assumption of the Indebtedness of such
Person by a Subsidiary of the Borrower at the time of the consummation of such
Acquisition.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens created by the Senior Note Documents as in effect on the
date hereof;
(c) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02
(other than Liens created by the Senior Note Documents); provided that (i)
--------
such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary and (ii) such Lien shall secure only those obligations which
it secures on the date hereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
--------
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and
(lx)
<PAGE>
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----
(iii) such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as
the case may be;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
--------
interests secure Indebtedness incurred to finance such acquisition,
construction or improvement, (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed 80% of the cost of
acquiring, constructing or improving such fixed or capital assets and (iv)
such security interests shall not apply to any other property or assets of
the Borrower or any Subsidiary;
(f) the Lien created by the Security Agreement;
(g) any extensions, renewals or replacements of any of the Liens
permitted by the foregoing clauses (a) through (f) effected in connection
with any extension, renewal or replacement of the Indebtedness secured
thereby; provided that (i) the aggregate principal amount of such
--------
Indebtedness is not thereby increased and (ii) such Lien shall not be
extended to cover any additional property; and
(h) other Liens that (whether before or after the Security
Termination Date) do not cover property constituting Collateral under and
as defined in the Security Agreement (or property that would constitute
Collateral if the Security Termination Date had not occurred), subject, to
the extent applicable, to the requirements of Article III of the
Intercreditor Agreement.
Notwithstanding anything contained herein to the contrary, the aggregate amount
of obligations of the Borrower and the Subsidiary Guarantors secured by Liens
shall not exceed 10% of Consolidated Total Assets at any time on or after the
Security Termination Date.
SECTION 6.03. Fundamental Changes.
-------------------
(a) Mergers, Sales of Assets, Etc. The Borrower will not, and will
-----------------------------
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, provided that if any such transaction shall be between a
--------
Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and such
Subsidiary Guarantor is not the continuing or surviving corporation, then the
continuing or surviving corporation shall have assumed all of the obligations of
such Subsidiary Guarantor hereunder and under the other Loan Documents
(lxi)
<PAGE>
Page
----
pursuant to documentation satisfactory to the Administrative Agent in form and
substance, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose
of its assets to the Borrower or to another Subsidiary, provided that if any
such transaction shall be between a Subsidiary Guarantor and a Subsidiary not a
Subsidiary Guarantor, and if such Subsidiary Guarantor is not the continuing or
surviving corporation, then the continuing or surviving corporation shall have
assumed all of the obligations of such Subsidiary Guarantor hereunder and under
the other Loan Documents pursuant to documentation satisfactory to the
Administrative Agent in form and substance and (iv) any Subsidiary may liquidate
or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger that would
--------
otherwise be permitted by this Section 6.03 involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04.
(b) Joint Ventures. The Borrower will not, and will not permit any
--------------
of its Subsidiaries to invest in any Joint Venture, consummate any Acquisition
or otherwise acquire any business, or the related assets, of any other Person
(whether by way of purchase of assets or stock, by merger or consolidation or
otherwise), unless immediately prior to such acquisition and after giving effect
thereto, no Default shall have occurred and be continuing, and:
(i) such acquisition is an Acquisition and such Acquisition (if by
purchase of assets, merger or consolidation) is effected in such manner
that the acquired business, and the related assets, are owned either by the
Borrower or a Subsidiary and, if effected by merger or consolidation
involving the Borrower, the Borrower is the continuing or surviving entity
and, if effected by merger or consolidation involving a Subsidiary, the
continuing or surviving entity is a Subsidiary; or
(ii) such acquisition is an Acquisition and such Acquisition (if by
purchase of stock) is effected in such manner so that the acquired entity
becomes a Subsidiary; or
(iii) such transaction is an Acquisition or a Joint Venture and after
giving effect to such Acquisition or Joint Venture the Borrower is in
compliance with Section 6.12 (the determination of such compliance to be
calculated on a pro forma basis, as at the end of the fiscal quarter most
--- -----
recently ended prior to the date of such Acquisition or Joint Venture for
which financial statements of the Borrower and its Subsidiaries are
available, under the assumption that such Acquisition or Joint Venture
shall have occurred, and any Indebtedness in connection therewith shall
have been incurred, at the beginning of the applicable period, and under
the assumption that interest for such period had been equal to the actual
weighted average interest rate in effect for the Loans hereunder on the
date of such Acquisition or Joint Venture) and, in the event that the
aggregate amount of expenditures in respect of such Acquisition or Joint
Venture and of all prior Acquisitions and Joint Ventures made during a
single fiscal year and not covered by a certificate delivered under this
subclause (iii) exceeds $100,000,000, the Borrower shall have delivered to
the Administrative Agent a certificate of a Financial Officer showing
calculations in reasonable detail to demonstrate compliance with this
subclause (iii) and
(lxii)
<PAGE>
Page
----
certifying that prior to such acquisition and after giving effect thereto,
no Default shall have occurred and be continuing.
(c) Lines of Business. The Borrower will not, and will not permit
-----------------
any of its Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its Subsidiaries on
the Effective Date and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
------------
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries and Investments by the Borrower existing
on the date hereof described in Part B of Schedule 3.14;
(c) Investments made by the Borrower in any Subsidiary and made by
any Subsidiary in the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) Investments in an aggregate amount not exceeding $10,000,000 at
any one time outstanding in a cold storage warehouse and distribution
center in Sioux Falls, South Dakota constituting a joint venture between
Freezer Services Inc., the Borrower and John Morrell & Co.;
(f) other Investments not exceeding $5,000,000 in the aggregate
amount outstanding at any time; and
(g) Investments constituting Acquisitions or Joint Ventures permitted
by Section 6.03(b) made by the Borrower or any of its Subsidiaries in any
Person (other than a Subsidiary) principally engaged in a business in which
the Borrower and its Subsidiaries are permitted by Section 6.03(c) to be
engaged.
SECTION 6.05. Hedging Agreements. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which
(lxiii)
<PAGE>
Page
----
the Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
SECTION 6.06. Restricted Payments. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that
(a) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock;
(b) Subsidiaries may declare and pay dividends ratably with respect
to their capital stock;
(c) the Borrower may make Restricted Payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries; and
(d) so long as at the time of each such purchase and after giving
effect thereto no Default shall have occurred and is continuing, the
Borrower may purchase outstanding shares of its stock from time to time in
such amounts as it shall determine, provided that after giving effect to
--------
such purchase the Borrower is in compliance with Section 6.12 (the
determination of such compliance to be calculated on a pro forma basis, as
--- -----
at the end of the fiscal quarter most recently ended prior to the date of
such purchase for which financial statements of the Borrower and its
Subsidiaries are available, under the assumption that such purchase shall
have occurred, and any Indebtedness in connection therewith shall have been
incurred, at the beginning of the applicable period, and under the
assumption that interest for such period had been equal to the actual
weighted average interest rate in effect for the Loans hereunder on the
date of such purchase) and, in the event that the aggregate amount of
expenditures in respect of such purchase and of all prior purchases made
during a single fiscal year and not covered by a certificate delivered
under this subclause (d) exceeds $100,000,000, the Borrower shall have
delivered to the Administrative Agent a certificate of a Financial Officer
within 10 days of such purchase showing calculations in reasonable detail
to demonstrate compliance with this subclause (d).
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (c) any Restricted Payment permitted by Section 6.06.
(lxiv)
<PAGE>
Page
----
SECTION 6.08. Restrictive Agreements. The Borrower will not, and will
----------------------
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that
--------
(i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement or any of the other Loan Documents,
(ii) the foregoing shall not apply to restrictions and conditions
under agreements applicable to Subsidiaries so long as, at any date, the
aggregate Consolidated EBITDA attributable to such Subsidiaries for the
period of four fiscal quarters ending on or most recently ended prior to
such date shall not exceed 15% of the aggregate Consolidated EBITDA of the
Borrower and all of its Subsidiaries for such period.
(iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement or any of the other Loan Documents if such
restrictions or conditions apply only to the property or assets securing
such Indebtedness,
(v) clause (a) of the foregoing shall not apply to customary
provisions in leases restricting the assignment thereof,
(vi) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement under which the Indebtedness governed
by the Senior Note Documents is refinanced, provided that such restrictions
or conditions are not materially more restrictive than those contained in
the Senior Note Documents on the date hereof (and, if such agreement does
not provide that the Indebtedness created thereunder will be secured by
Liens on property or assets of the Borrower or any Subsidiary, such
agreement may contain restrictions or conditions limiting Liens on property
or assets of the Borrower or any Subsidiary which are not the subject of
Liens granted under the Security Agreement and such restrictions or
conditions shall not be deemed more onerous than those contained in the
Senior Note Documents on the date hereof), and
(vii) clause (a) of the foregoing shall not apply to any requirement
that obligations of the Borrower or its Subsidiaries, as the case may be,
in respect of any
(lxv)
<PAGE>
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----
Subordinated Indebtedness that provide that new Subordinated Indebtedness
may not be secured unless existing Subordinated Indebtedness is at least
equally and ratably secured.
SECTION 6.09. Senior Note Documents. Promptly following the execution
---------------------
thereof, the Borrower will supply each Lender with a copy of any modification,
supplement or waiver to a Senior Note Document.
SECTION 6.10. Limitation on Sale and Leaseback Transactions. The
---------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, enter into,
renew or extend any transaction or series of related transactions pursuant to
which the Borrower or such Subsidiary sells or transfers any property in
connection with the leasing, or the release against installment payments, or as
part of an arrangement involving the leasing or resale against installment
payments, of such property to the seller or transferor.
SECTION 6.11. Fiscal Periods. If the Borrower changes the manner of
--------------
determining the last day of its fiscal year or the last days of the first three
fiscal quarters in each of its fiscal years, the parties hereto shall negotiate
in good faith to agree to modify any financial calculations and determinations
hereunder to reflect their original intent in light of such changes, and if they
fail so to agree all such financial calculations determinations hereunder shall
continue to be made as if such change had not occurred.
SECTION 6.12. Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. The Borrower will not, as at any
---------------------------
date, permit the ratio of Consolidated Total Funded Debt as at such date to
Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date, to be more than 3.75 to 1.
(b) Consolidated Interest Coverage Ratio. The Borrower will not
------------------------------------
permit the ratio of Consolidated EBITDA to Consolidated Interest Expense for any
period of four consecutive fiscal quarters of the Borrower to be less than 3.00
to 1.
(c) Inventory and Receivables. The Borrower will not, at any date,
-------------------------
permit the ratio of (i) the sum of (x) at all times prior to the Security
Termination Date, the aggregate amount of inventory and accounts receivable of
the Borrower and the Subsidiary Guarantors subject to the Lien of the Security
Agreement or (y) on and after the Security Termination Date, the aggregate
amount of inventory and accounts receivable owned by the Borrower and the
Subsidiary Guarantors to (ii) the aggregate Revolving Credit Exposure of the
Lenders under this Agreement at such date to be less than 1.30 to 1.
SECTION 6.13. Subordinated Indebtedness. If any Default then exists or
-------------------------
would result therefrom, the Borrower will not, and will not permit any of its
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
(1xvi)
<PAGE>
Page
----
owing in respect of, the Subordinated Indebtedness, except (subject to the terms
of subordination thereof) for regularly scheduled payments of principal and
interest in respect thereof required pursuant to the terms) hereof. The Borrower
shall not, and shall not permit any of its Subsidiaries to, consent to any
modification, supplement or waiver of any of the provisions of any agreement,
instrument or other document evidencing or relating to any Subordinated
Indebtedness (in the case of any Subordinated Indebtedness referred to in clause
(b) of the definition of such term in Section 1.01, after the issuance thereof),
without the prior consent of the Administrative Agent (with the approval of the
Required Lenders) if such modification, supplement or waiver would be adverse in
any material respect to the interests of the Borrower, any of its Subsidiaries
or any of the Lenders.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of any Obligor in or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, shall prove to have
been incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
existence of the Borrower or any Subsidiary) or 5.08 or in Article VI;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan
Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue
(1xvii)
<PAGE>
Page
----
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
--------
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action
(1xviii)
<PAGE>
Page
----
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any Subsidiary to enforce any such judgment,
provided that if the corresponding number for events of default of the type
--------
described in this clause (k) as set forth in each of the Senior Note
Documents shall be a higher number, then such $10,000,000 figure shall
automatically be increased to such higher number, except that in no event
shall such figure be increased to a number greater than $25,000,000;
(l) the Borrower or any Subsidiary receives any notice, notification,
demand, request for information, citation, summons or order or there has
been filed any complaint or any penalty has been assessed or an
investigation or review is pending or threatened by any governmental or
other entity, in each case with respect to any alleged failure by the
Borrower or any of its Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Borrower or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any release of any Hazardous Materials generated by the Borrower or any of
its Subsidiaries, in each case which could reasonably be expected to result
in a Material Adverse Effect;
(m) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding (i)
$2,000,000 in any year or (ii) $10,000,000 for all periods;
(n) any of the following shall occur: (i) subject to Section 10.13,
the Lien created by any Security Document shall at any time cease to
constitute a valid and perfected Lien on the collateral intended to be
covered thereby before the Security Termination Date; (ii) subject to
Section 10.13, except for expiration in accordance with its terms, any
Security Document shall for whatever reason be terminated, or shall cease
to be in full force and effect before the Security Termination Date; or
(iii) subject to Section 10.13, the actual or asserted invalidity of any
Security Document or of any guarantee under Article VIII hereof or the
validity of any Security Document or of any guarantee under Article VIII
hereof or the validity of any subordination provision contained in Article
VIII hereof shall be contested by any party before (in the case of any
Security Document) the Security Termination Date; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case
(1xix)
<PAGE>
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----
any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; and in case of any event
with respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Obligors accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Obligors.
ARTICLE VIII
GUARANTEE
SECTION 8.01 The Guarantee. The Subsidiary Guarantors hereby jointly
-------------
and severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans (and, in the case of Letters of Credit, LC Disbursements)
made by the Lenders to the Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by the Borrower under this
Agreement and by any Obligor under any of the other Loan Documents, and all
obligations of the Borrower to any Lender (or any affiliate of any Lender) in
respect of any Hedging Agreement, in each case in the Currency thereof and
otherwise strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Guaranteed Obligations"). The Subsidiary
----------------------
Guarantors hereby further jointly and severally agree that if the Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
For purposes hereof, it is understood that any Guaranteed Obligations
to a Person arising under a Hedging Agreement entered into at the time such
Person (or an affiliate thereof) is a "Lender" party to this Agreement shall
nevertheless continue to constitute Guaranteed Obligations for purposes hereof,
notwithstanding that such Person (or its affiliate) may have assigned all of its
Loans and other interests in this Agreement and, at the time a claim is to be
made in respect of such Guaranteed Obligations, such Person (or its affiliate)
is no longer a "Lender" party to this Agreement.
SECTION 8.02 Obligations Unconditional. The obligations of the
-------------------------
Subsidiary Guarantors under Section 8.01 hereof are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of
(1xx)
<PAGE>
Page
----
the Borrower under this Agreement or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 8.02 that the obligations of the Subsidiary Guarantors hereunder shall
be absolute and unconditional, joint and several, under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Subsidiary Guarantors hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein or therein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 8.03 Reinstatement. The obligations of the Subsidiary
-------------
Guarantors under this Article VIII shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
(1xxi)
<PAGE>
Page
----
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
SECTION 8.04 Subrogation. The Subsidiary Guarantors hereby jointly and
-----------
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments and
Letters of Credit under this Agreement they shall not exercise any right or
remedy arising by reason of any performance by them of their guarantee in
Section 8.01 hereof, whether by subrogation or otherwise, against the Borrower
or any other guarantor of any of the Guaranteed Obligations or any security for
any of the Guaranteed Obligations.
SECTION 8.05 Remedies. The Subsidiary Guarantors jointly and severally
--------
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Article VII hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Article VII) for purposes of Section 8.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrower) shall forthwith become due and payable by the Subsidiary
Guarantors for purposes of said Section 8.01.
SECTION 8.06 Instrument for the Payment of Money. Each Subsidiary
-----------------------------------
Guarantor hereby acknowledges that the guarantee in this Article VIII
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
SECTION 8.07 Continuing Guarantee. The guarantee in this Article VIII
--------------------
is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 8.08 Rights of Contribution. The Subsidiary Guarantors
----------------------
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations, each other
Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the Properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 8.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article VIII and
(1xxii)
<PAGE>
page
----
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section 8.08, (i) "Excess Funding Guarantor"
------------------------
means, in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" means, in respect of any Guaranteed Obligations, the
--------------
amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of
such Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Subsidiary
--------------
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Borrower and
the Subsidiary Guarantors hereunder and under the other Loan Documents) of all
of the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Effective Date, as of the Effective
Date, and (B) with respect to any other Subsidiary Guarantor, as of the date
such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 8.09 General Limitation on Guarantee Obligations. In any
-------------------------------------------
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 8.01 would otherwise, taking into account the provisions of Section
8.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under said Section 8.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
(1xxiii)
<PAGE>
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Each of the Lenders and the Issuing Banks hereby irrevocably appoints the
Collateral Agent as its collateral agent under the Security Agreement and
authorizes the Collateral Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms
hereof or of the Security Agreement, together with such actions and powers as
are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall take such action (subject to Section
10.02(b) hereof and subject to the right of the Administrative Agent to receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 10.03(c) hereof against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take
such action) with respect to the notice of a Default referred to in the
preceding
(1xxiv)
<PAGE>
Page
----
paragraph as shall be directed by the Required Lenders, provided that, unless
--------
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such notice of Default as it
shall deem advisable in the best interest of the Lenders except to the extent
that this Agreement expressly requires that such action be taken, or not be
taken, only with the consent or upon the authorization of the Required Lenders
or all of the Lenders.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent.
(1xxv)
<PAGE>
Page
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
The Arranger identified on the cover page of this Agreement shall have
no duties or responsibilities hereunder. The Co-Agent identified on the cover
page of this Agreement shall have no duties or responsibilities hereunder other
than as a Lender and as an Issuing Bank hereunder.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Smithfield Foods, Inc. at 200
Commerce Street, Smithfield, VA 23430, Attention: Mr. Dan Stevens
(Telecopy No. 757-365-3025) and Orville Lunking (Telecopy No. 757-365-
3025);
(b) if to any Subsidiary Guarantor, at the address for notices to the
Borrower as provided herein;
(c) if to the Administrative Agent or the Collateral Agent, to
JPMorgan Chase Bank, Agent Bank Services Group, 1 Chase Manhattan Plaza,
New York, New York 10017, Attention of Deidre Wall (Telecopy No. 212-552-
7391), and, if such notice or other communication relates to borrowings of,
or payments or prepayments of, or the duration of Interest Periods for,
Loans denominated in a Foreign Currency, also to JPMorgan Chase Bank, 4
Thomas More Street, London, E1 94T, England, Attention: Agency Loans
Department (Telecopy No. 44-171-777-2360; Telephone No. 44-171-777-2353),
in each case with a copy to JPMorgan Chase Bank, 270 Park Avenue, New York,
New York 10017, Attention of Gary L. Spevack (Telecopy No. 212-270-0998);
(d) if to Chase in its capacity as Issuing Bank, to it at 1 Chase
Manhattan Plaza, New York, New York 10017, Attention of Paul W. Robinson,
Supervisor L/C (Telecopy No. 212-638-8200);
(1xxvi)
<PAGE>
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(e) if to the Swingline Lender, to JPMorgan Chase Bank, Agent Bank
Services Group, 1 Chase Manhattan Plaza, New York, New York 10017,
Attention of Deidre Wall (Telecopy No. 212-552-7391); and
(f) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
-------------------
(a) Waivers. No failure or delay by the Administrative Agent, any
-------
Issuing Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Banks and the Lenders hereunder are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Obligor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Amendments of Agreement. Neither this Agreement nor any
-----------------------
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Obligors and the Required
Lenders or by the Obligors and the Administrative Agent with the consent of the
Required Lenders; provided that no such agreement shall
--------
(i) increase the Commitment (or either Sub-Commitment) of any
Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of
(lxxvii)
<PAGE>
Page
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expiration of any Commitment, without the written consent of each Lender
affected thereby,
(iv) change Section 2.17 in a manner that would alter the pro rata
treatment of Lenders required thereby, without the written consent of each
Lender,
(v) change the definition of "Approved Foreign Currency", "Dollar
Equivalent", "Foreign Currency" or "Foreign Currency Equivalent", or any
provision affecting the calculation of an amount payable in an Approved
Foreign Currency, without the written consent of each Multicurrency Lender,
(vi) change any of the provisions of this Section 10.02 or the
definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender,
(vii) release all or substantially all of the Subsidiary Guarantors
from their obligations in respect of their Guarantee hereunder without the
written consent of each Lender or
(viii) except as otherwise provided in the second sentence of
paragraph (c) below, release all or substantially all of the collateral
under the Security Documents without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
-------- -------
the rights or duties of the Administrative Agent, any Issuing Bank or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may
be.
(c) Amendments of Security Documents. Neither any Security Document
--------------------------------
nor any provision thereof may be waived, amended or modified, nor may any
collateral thereunder be released, except pursuant to an agreement or agreements
in writing entered into by the Obligors party thereto, and by the Administrative
Agent with the consent of the Required Lenders (or all Lenders to the extent
required under Section 10.02(b)). Notwithstanding the foregoing, the
Administrative Agent shall, at the request of the Borrower, (i) agree to release
from the Lien of the Security Agreement any property that is the subject of a
permitted sale hereunder to a Person other than the Borrower or a Subsidiary and
(ii) agree to terminate the Security Agreement if (x) at the time of such
release, the aggregate amount of obligations of the Borrower and its
Subsidiaries secured by Liens does not exceed 10% of Consolidated Total Assets,
(y) the long term senior, unsecured and non-credit enhanced debt of the Borrower
is rated at least Baa3 by Moody's and at least BBB- by S&P and (z) no Default
has occurred and is continuing.
(lxxviii)
<PAGE>
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SECTION 10.03. Expenses; Indemnity: Damage Waiver.
----------------------------------
(a) Expenses. The Borrower shall pay (i) all reasonable out-of-
--------
pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the administration of this Agreement
and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section 10.03, or in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) Indemnification by Borrower. The Borrower shall indemnify the
---------------------------
Administrative Agent, any Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an "Indemnitee")
----------
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or the other Loan Documents or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the an Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
--------
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) Indemnification by Lenders. To the extent that the Borrower
--------------------------
fails to pay any amount required to be paid by it to the Administrative Agent,
an Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section 10.03, each Lender severally agrees to pay to the Administrative Agent,
such Issuing Bank or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed
(lxxix)
<PAGE>
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expense or indemnity payment is sought) of such unpaid amount; provided that the
--------
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or the Swingline Lender in its capacity
as such.
(d) No Consequential Damages, Etc. To the extent permitted by
-----------------------------
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payment Due Dates. All amounts due under this Section 10.03
-----------------
shall be payable promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
----------------------
(a) Assignments Generally. The provisions of this Agreement shall be
---------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), except that an Obligor may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by such
Obligor without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of an Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the relevant Issuing Bank and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more
----------------------
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or an
--------
Affiliate of a Lender, each of the Borrower and the Administrative Agent (and,
in the case of an assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the Issuing
Bank and the Swingline Lender) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, (iv) the parties to each assignment shall
execute and
(lxxx)
<PAGE>
Page
----
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 (which shall be payable by the
respective assignor or assignee, as agreed upon between them, and not in any
event by the Borrower), and (v) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire; provided
--------
further that any consent of the Borrower otherwise required under this paragraph
-------
shall not be required if an Event of Default under clause (h) or (i) of Article
VII has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section 10.04, from and after the effective
date specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section 10.04.
(c) Maintenance of Register. The Administrative Agent, acting for
-----------------------
this purpose as an agent of the Borrower, shall maintain at one of its offices
in The City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
---------
the Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly
----------------------------
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section 10.04 and any written consent
to such assignment required by paragraph (b) of this Section 10.04, the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Participations by Lenders. Any Lender may, without the consent
-------------------------
of the Borrower, the Administrative Agent, the Issuing Banks or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such
-----------
(lxxxi)
<PAGE>
Page
----
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
--------
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section 10.04, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 10.04. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17(f) as though it
were a Lender.
(f) Rights of Participants. A Participant shall not be entitled to
----------------------
receive any greater payment under Section 2.14 or 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.16 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) Pledges by Lenders. Any Lender may at any time pledge or assign
------------------
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank or a Farm Credit Bank, and this Section
10.04 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
--------
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(h) No Assignments to Borrower and Affiliates. Anything in this
-----------------------------------------
Section 10.04 to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower or any
Affiliates or Subsidiaries of the Borrower without the prior consent of each
Lender.
SECTION 10.05. Survival. All covenants, agreements, representations
--------
and warranties made by the Obligors herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement and the
other Loan Documents shall be considered to have been relied upon by the other
parties hereto and shall survive the execution
(lxxxii)
<PAGE>
Page
----
and delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 10.03 and Article IX shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Subject
to Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Obligor against any of and all the obligations of such Obligor now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
10.08 are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
(lxxxiii)
<PAGE>
Page
----
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process.
-------
(a) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
-------------
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b) Submission to Jurisdiction. EACH OBLIGOR HEREBY IRREVOCABLY AND
--------------------------
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against any Obligor or its properties in the courts of any jurisdiction.
(c) Waiver of Forum Matters. Each Obligor hereby irrevocably and
-----------------------
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section 10.09. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
------------------
consents to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
(lxxxiv)
<PAGE>
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----
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.10.
SECTION 10.11. Headings. Article and Section headings and the Table
--------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement or the other
Loan Documents, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the other Loan
Documents or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section 10.12, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
the other Loan Documents, (g) with the consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section 10.12 or (ii) becomes available to the Administrative
Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section 10.12, "Information"
-----------
means all information received from any Obligor relating to such Obligor or its
business, other than any such information that is available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
--------
received from any Obligor after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section 10.12
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13. Perfection of Security Interests. Notwithstanding
--------------------------------
anything contained herein or in any Security Document to the contrary, neither
the Borrower nor any of its Subsidiaries shall be responsible for the failure of
the Lien created by the Security Agreement to be perfected (a) to the extent
that such failure results from the failure by the Collateral Agent to file
continuation statements under the Uniform Commercial Code in respect of such
Lien or (b) to the extent that such failure relates to Liens over receivables
and results from such receivables being due from Governmental Authorities.
(lxxxv)
<PAGE>
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----
SECTION 10.14. Acknowledgements. Each Obligor hereby acknowledges
----------------
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender or Issuing Bank
has any fiduciary relationship with or fiduciary duty to any Obligor
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Administrative Agent, the
Lenders and the Issuing Banks, on the one hand, and the Obligors, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
any party or parties hereto.
SECTION 10.15. European Monetary Union.
-----------------------
(a) Definitions. As used herein, the following terms shall have the
-----------
following meanings:
"EMU" means economic and monetary union as contemplated in the Treaty
---
on European Union.
"EMU Legislation" means legislative measures of the European Council
---------------
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the Euro or otherwise), being in part
the implementation of the third stage of EMU.
"Euros" means the single currency of Participating Member States of
-----
the European Union, which shall be an Approved Foreign Currency and a
Foreign Currency under this Agreement.
"Participating Member State" means each state so described in any EMU
--------------------------
Legislation.
"Target Operating Day" means any day that is not (i) a Saturday or
--------------------
Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day on
which the Trans-European Real-time Gross Settlement Operating System (or
any successor settlement system) is not operating (as determined by the
Administrative Agent).
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
------------------------
as amended by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
(lxxxvi)
<PAGE>
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(b) Payments by the Administrative Agent Generally. With respect to
----------------------------------------------
the payment of any amount denominated in Euros, the Administrative Agent shall
not be liable to the Borrower or any of the Lenders in any way whatsoever for
any delay, or the consequences of any delay, in the crediting to any account of
any amount required by this Agreement to be paid by the Administrative Agent if
the Administrative Agent shall have taken all relevant steps to achieve, on the
date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds in Euros to the account of any
Lender in the Principal Financial Center in the Participating Member State which
the Borrower or such Lender, as the case may be, shall have specified for such
purpose. For the purposes of this paragraph, "all relevant steps" means all
------------------
such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments in Euros.
(c) Certain Rate Determinations. For the purposes of determining the
---------------------------
date on which the LIBO Rate is determined under this Agreement for the Interest
Period for any Borrowing denominated in Euros, references in this Agreement to
Business Days shall be deemed to be references to Target Operating Days.
SECTION 10.16. Judgment Currency. This is an international loan
-----------------
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or the
------------------
country of the Specified Currency, as the case may be (the "Specified Place"),
---------------
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency. The
payment obligations of each Obligor under this Agreement shall not be discharged
or satisfied by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place under
normal banking procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of exchange
---------------
that shall be applied shall be the rate at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of each Obligor in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder or
under any other Loan Document (in this Section 10.16 called an "Entitled
--------
Person") shall, notwithstanding the rate of exchange actually applied in
------
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by such Entitled Person of any sum adjudged to be due
hereunder in the Second Currency such Entitled Person may in accordance with
normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be due;
and each Obligor hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in the Specified Currency, the amount (if any) by
which the sum originally due to such Entitled Person in the Specified Currency
hereunder exceeds the amount of the Specified Currency so purchased and
transferred.
(lxxxvii)
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
SMITHFIELD FOODS, INC.
By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
SUBSIDIARY GUARANTORS
---------------------
CODDLE ROASTED MEATS, INC. BROWN'S OF CAROLINA LLC
GWALTNEY OF SMITHFIELD, LTD. CARROLL'S FOODS LLC
HANCOCK'S OLD FASHIONED CARROLL'S FOODS OF
COUNTRY HAM, INC. VIRGINIA LLC
IOWA QUALITY MEATS, LTD. CENTRAL PLAINS FARMS LLC
JOHN MORRELL & CO. CIRCLE FOUR LLC
LYKES MEAT GROUP, INC. MURPHY FARMS LLC
MOYER PACKING COMPANY QUARTER M FARMS LLC,
MURCO FOODS, INC. each a Delaware limited liability company
NORTH SIDE FOODS CORP.
PACKERLAND PROCESSING
COMPANY, INC. By MURPHY-BROWN LLC,
PACKERLAND HOLDINGS, INC. a Delaware limited liability company,
PATRICK CUDAHY INCORPORATED as a sole member of each
PREMIUM PORK, INC.
QUIK-TO-FIX FOODS, INC.
STADLER'S COUNTRY HAMS, INC. By JOHN MORRELL & CO.,
SUN LAND BEEF COMPANY a Delaware corporation,
SUNNYLAND, INC. as its sole member
THE SMITHFIELD COMPANIES, INC.
THE SMITHFIELD PACKING
COMPANY, INCORPORATED By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
(lxxxviii)
<PAGE>
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MURPHY-BROWN LLC, GREAT LAKES CATTLE CREDIT
a Delaware limited liability company COMPANY, LLC,
a Delaware limited liability company,
By JOHN MORRELL & CO., By PACKERLAND HOLDINGS,
a Delaware corporation, INC.,
as its sole member a Delaware corporation,
as its sole member
By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
(lxxxix)
<PAGE>
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----
LENDERS
-------
JPMORGAN CHASE BANK, ABN AMRO BANK N.V.
individually and as Administrative Agent
By /s/ Gary L. Spevack By /s/ John W. Deegan
----------------------------------- --------------------------------
Name: Gary L. Spevack Name: John W. Deegan
Title: Vice President Title: Group Vice President
By /s/ Neil R. Stein
--------------------------------
Name: Neil R. Stein
Title: Vice President
BANK OF AMERICA, N.A. BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By /s/ William F. Sweeney By /s/ Pamela Donnelley
----------------------------------- --------------------------------
Name: William F. Sweeney Name: Pamela Donnelley
Title: Managing Director Title: Vice President
BNP PARIBAS CAPE FEAR FARM CREDIT, ACA
By /s/ Richard L. Sied By /s/ Randy T. Pope
----------------------------------- --------------------------------
Name: Richard L. Sied Name: Randy T. Pope
Title: Central Region Manager Title: Assistant Vice President
By /s/ Timothy J. Devane
-----------------------------------
Name: Timothy J. Devane
Title: Vice President
(xc)
<PAGE>
Page
----
CIBC INC. COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A. "RABOBANK INTERNATIONAL",
By /s/ George Knight NEW YORK BRANCH
---------------------------------
Name: George Knight
Title: Managing Director
CIBC World Markets Corp As Agent
By /s/ Shane Bounds
--------------------------------
Name: Shane Bounds
Title: Vice President
By /s/ Ian Reece
--------------------------------
Name: Ian Reece
Title: Managing Director
CREDIT AGRICOLE INDOSUEZ THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Theodore D. Tice By /s/ Chimie T. Pemba
--------------------------------- --------------------------------
Name: Theodore D. Tice Name: Chimie T. Pemba
Title: Senior Relationship Mananger Title: Account Officer
By /s/ Bradley C. Peterson
---------------------------------
Name: Bradley C. Peterson
Title: First Vice President
DRESDNER BANK FARM CREDIT BANK OF WICHITA
LATEINAMERIKA AG,
MIAMI AGENCY
By /s/ Andreas Thomas By /s/ Travis W. Ball
--------------------------------- --------------------------------
Name: Andreas Thomas Name: Travis W. Ball
Title: Vice President Title: Vice President
By /s/ Michael A. Londono
---------------------------------
Name: Michael A. Londono
Title: Assistant Treasurer
(xci)
<PAGE>
Page
----
FARM CREDIT SERVICES FARM CREDIT SERVICES
OF AMERICA, PCA OF MID-AMERICA, PCA
By /s/ Timothy J. Healy By /s/ Steven R. Kluemper
----------------------------------- --------------------------------
Name: Timothy J. Healy Name: Steven R. Kluemper
Title: Vice President Title: Agribusiness Account
Executive
AGSTAR FINANCIAL SERVICES PCA FIRST UNION NATIONAL BANK
d/b/a FCS Commercial Finance Group
By /s/ Sarah T. Warren
By /s/ James M. Grafing --------------------------------
--------------------------------- Name: Sarah T. Warren
Name: James M. Grafing Title: Vice President
Title: Sr. VP Syndicated Finance
GENERAL ELECTRIC CAPITAL HARRIS TRUST & SAVINGS BANK
CORPORATION
By /s/ C. Mark Smith By /s/ John Carley
----------------------------------- --------------------------------
Name: C. Mark Smith Name: John Carley
Title: Duly Authorized Signatory Title: Vice President
ING (U.S.) CAPITAL LLC SUMITOMO MITSUI BANKING
CORPORATION
By /s/ Daniel W. Lamprecht By /s/ Eric Seeley
----------------------------------- --------------------------------
Name: Daniel W. Lamprecht Name: Eric Seeley
Title: Managing Director Title: Vice President
(xcii)
<PAGE>
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SUNTRUST BANK U.S. BANK NATIONAL ASSOCIATION
By /s/ Michael Pugsley By /s/ Kathi Watch
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Name: Michael Pugsley Name: Kathi Watch
Title: Vice President Title: Assistant Vice President
By /s/ Kelley E. Brunson
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Name: Kelley E. Brunson
Title: Assistant Vice President
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