[Execution Copy]
************************************************************
CANANDAIGUA WINE COMPANY, INC.
and
SUBSIDIARY GUARANTORS
-----------------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 1, 1995
------------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
************************************************************
BII\36365
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters.................................................................. 2
1.01 Certain Defined Terms............................................................................ 2
1.02 Accounting Terms and Determinations.............................................................. 34
1.03 Classes and Types of Loans....................................................................... 35
Section 2. Commitments, Loans, Notes and Prepayments........................................................... 35
2.01 Syndicated Loans................................................................................. 35
2.02 Borrowings of Syndicated Loans................................................................... 39
2.03 Money Market Loans............................................................................... 39
2.04 Barton Letter of Credit.......................................................................... 45
2.05 Revolving Letters of Credit...................................................................... 49
2.06 Changes of Commitments........................................................................... 56
2.07 Commitment Fee................................................................................... 57
2.08 Lending Offices.................................................................................. 57
2.09 Several Obligations; Remedies Independent........................................................ 58
2.10 Notes ......................................................................................... 58
2.11 Optional Prepayments and Conversions or
Continuations of Loans................................................................... 59
2.12 Mandatory Prepayments and Reductions of Commit-
ments.................................................................................... 60
Section 3. Payments of Principal and Interest.................................................................. 63
3.01 Repayment of Loans............................................................................... 63
3.02 Interest......................................................................................... 65
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.................................................................................................... 66
4.01 Payments......................................................................................... 66
4.02 Pro Rata Treatment............................................................................... 67
4.03 Computations..................................................................................... 67
4.04 Minimum Amounts.................................................................................. 68
4.05 Certain Notices.................................................................................. 68
4.06 Non-Receipt of Funds by the Administrative Agent................................................. 69
4.07 Sharing of Payments, Etc......................................................................... 70
Section 5. Yield Protection, Etc............................................................................... 72
5.01 Additional Costs................................................................................. 72
5.02 Limitation on Types of Loans..................................................................... 74
5.03 Illegality....................................................................................... 74
5.04 Treatment of Affected Loans...................................................................... 75
Page
5.05 Compensation..................................................................................... 76
5.06 Additional Costs in Respect of Letters of Credit................................................. 76
Section 6. Guarantee........................................................................................... 77
6.01 Guarantee........................................................................................ 77
6.02 Obligations Unconditional........................................................................ 78
6.03 Reinstatement.................................................................................... 85
6.04 Subrogation...................................................................................... 85
6.05 Remedies......................................................................................... 86
6.06 Continuing Guarantee............................................................................. 86
6.07 Limitation on Guarantee Obligations.............................................................. 86
Section 7. Conditions Precedent................................................................................ 86
7.01 Conditions to Effectiveness...................................................................... 86
7.02 Initial and Subsequent Extensions of Credit...................................................... 91
Section 8. Representations and Warranties...................................................................... 92
8.01 Corporate Existence.............................................................................. 92
8.02 Financial Condition.............................................................................. 92
8.03 Litigation....................................................................................... 93
8.04 No Breach........................................................................................ 93
8.05 Power, Authority and Enforceability.............................................................. 94
8.06 Approvals........................................................................................ 94
8.07 Use of Credit.................................................................................... 94
8.08 ERISA ......................................................................................... 95
8.09 Taxes ......................................................................................... 95
8.10 Investment Company Act........................................................................... 95
8.11 Public Utility Holding Company Act............................................................... 95
8.12 Material Agreements and Liens.................................................................... 95
8.13 Environmental Matters............................................................................ 96
8.14 Capitalization................................................................................... 98
8.15 Subsidiaries, Etc................................................................................ 99
8.16 Real Property....................................................................................100
8.17 True and Complete Disclosure.....................................................................100
8.18 Barton Acquisition...............................................................................101
8.19 Glenmore Acquisition.............................................................................101
Section 9. Covenants of the Company............................................................................101
9.01 Financial Statements Etc.........................................................................101
9.02 Litigation.......................................................................................105
9.03 Existence, Etc...................................................................................106
9.04 Insurance........................................................................................107
9.05 Prohibition of Fundamental Changes...............................................................107
9.06 Limitations on Liens.............................................................................110
9.07 Indebtedness.....................................................................................112
9.08 Investments......................................................................................113
9.09 Dividend Payments................................................................................114
9.10 Certain Financial Covenants......................................................................114
9.11 Interest Rate Protection Agreements..............................................................115
9.12 Transactions with Affiliates.....................................................................116
9.13 Use of Proceeds..................................................................................117
9.14 Certain Obligations Respecting Subsidiaries......................................................117
9.15 Additional Subsidiary Guarantors.................................................................117
9.16 Modifications of Certain Documents...............................................................118
9.17 Subordinated Indebtedness........................................................................118
9.18 Eligible Inventory Located in Off-Premises
Warehouses...............................................................................120
Section 10. Events of Default..................................................................................121
Section 11. The Administrative Agent...........................................................................126
11.01 Appointment, Powers and Immunities..............................................................126
11.02 Reliance by Administrative Agent................................................................127
11.03 Defaults........................................................................................127
11.04 Rights as a Bank................................................................................128
11.05 Indemnification.................................................................................128
11.06 Non-Reliance on Administrative Agent and Other
Banks....................................................................................129
11.07 Failure to Act..................................................................................129
11.08 Resignation or Removal of Administrative Agent..................................................129
11.09 Consents under Basic Documents..................................................................130
11.10 Notices under the Senior Subordinated Debt
Documents................................................................................130
Section 12. Miscellaneous......................................................................................131
12.01 Waiver .........................................................................................131
12.02 Notices.........................................................................................131
12.03 Expenses, Etc...................................................................................131
12.04 Amendments, Etc.................................................................................133
12.05 Successors and Assigns..........................................................................134
12.06 Assignments and Participations..................................................................134
12.07 Survival........................................................................................136
12.08 Captions........................................................................................136
12.09 Counterparts....................................................................................137
12.10 Governing Law; Submission to Jurisdiction.......................................................137
12.11 Waiver of Jury Trial............................................................................137
12.12 Treatment of Certain Information................................................................137
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Hazardous Materials
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Litigation
SCHEDULE V - Real Property
SCHEDULE VI - Life Insurance Agreements
SCHEDULE VII - Stock Options
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT A-3 - Form of Money Market Note
EXHIBIT A-4 - Form of Swingline Note
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C-1 - Copy, as Executed, of Security Agreement
EXHIBIT C-2 - Form of Security Agreement Amendment
EXHIBIT D - Copy, as Executed, of Barton Letter of Credit EXHIBIT E-1 - Form of
Opinion of Special Counsel to Obligors EXHIBIT E-2 - Form of Opinion of
California Counsel to Obligors EXHIBIT E-3 - Form of Opinion of Kentucky Counsel
to Obligors EXHIBIT F - Form of Opinion of Special New York Counsel
to Chase
EXHIBIT G - Form of Confidentiality Agreement EXHIBIT H - Form of Money Market
Quote Request EXHIBIT I - Form of Money Market Quote EXHIBIT J - Form of Notice
of Assignment
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of
September 1, 1995, between: CANANDAIGUA WINE COMPANY, INC., a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Company"); each of the Subsidiaries of the Company identified under the caption
"SUBSIDIARY GUARANTORS" on the signature pages hereto (individually, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors" and,
together with the Company, the "Obligors"); each of the lenders that is a
signatory hereto identified under the caption "BANKS" on the signature pages
hereto or which, pursuant to Section 12.06(b) hereof, shall become a "Bank"
hereunder (individually, a "Bank" and, collectively, the "Banks"); and THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking association, as
administrative agent for the Banks (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
The Company, certain of the Subsidiary Guarantors, the
Existing Banks (as defined below) and the Administrative Agent are parties to a
Second Amendment and Restatement dated as of August 5, 1994 of Credit Agreement
dated as of September 30, 1991 (as heretofore modified and supplemented and in
effect on the date of this Agreement, the "Existing Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by the making of loans and the issuance of letters of credit) by the Existing
Banks to the Company. The parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety to provide for, among other things, the
increase of the amount of credit available thereunder, additional lenders to
become parties thereto and the making of loans to provide a portion of the funds
needed to acquire certain assets from United Distillers Glenmore, Inc. and
various of its subsidiaries, it being the intention of the parties hereto that
the loans and letters of credit outstanding under the Existing Credit Agreement
on the Effective Date (as hereinafter defined) shall continue and remain
outstanding and not be repaid on the Effective Date but shall be assigned and
reallocated among the Banks as provided in Section 2.01 and 2.05 hereof.
Accordingly, the parties hereto hereby agree that the Existing
Credit Agreement shall, as of the date hereof (but subject to the satisfaction
of the conditions precedent specified in Section 7 hereof), be amended and
restated in its entirety as follows:
Credit Agreement
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Adjusted Cash Flow" shall mean, for any period (the
"calculation period"), the sum, for the Company and its Consolidated
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) Operating Cash Flow for the
calculation period, minus (b) Capital Expenditures made during the calculation
period (excluding (x) Capital Expenditures made from the proceeds of
Indebtedness other than Indebtedness hereunder and (y) Restructuring Capital
Expenditures made during such period, but not exceeding an aggregate amount for
all calculation periods of $22,270,000) plus (c) the decrease (or minus the
increase) of Working Capital from the last day of the fiscal quarter immediately
preceding the calculation period to the last day of the calculation period.
"Affiliate" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company and,
if such Person is an individual, any member of the immediate family (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), provided that, in any event, any
Person that owns directly or indirectly securities having 5% or more of the
voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, (a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Company or any of its
Subsidiaries and (b) none of the Subsidiaries of the Company shall be
Affiliates.
Credit Agreement
"Applicable Lending Office" shall mean, for each Bank and for
each Type of Loan, the "Lending Office" of such Bank (or of an affiliate of such
Bank) designated for such Type of Loan on the signature pages hereof or such
other office of such Bank (or of an affiliate of such Bank) as such Bank may
from time to time specify to the Administrative Agent and the Company as the
office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean (a) with respect to Base Rate
Loans 0% per annum and (b) with respect to Eurodollar Loans, 1.250% per annum;
provided that if the Debt Ratio as at the last day of any fiscal quarter of the
Company ending after August 31, 1995 (the "First Quarter") shall fall within any
of the ranges set forth in the schedule below then, subject to the delivery to
the Administrative Agent of a certificate of a senior financial officer of the
Company demonstrating such fact prior to the last day of the fiscal quarter
immediately following the First Quarter (the "Second Quarter"), the "Applicable
Margin" for Eurodollar Loans shall be reduced to the rate set forth opposite
such range in the schedule below during the period commencing on the third
Business Day following the date of receipt of such certificate to but not
including the date (the "Change Date") that is the earlier of (x) the third
Business Day following receipt of a certificate setting forth the Debt Ratio as
at the last day of the Second Quarter and (y) the last day of the fiscal quarter
immediately following the Second Quarter; provided further that notwithstanding
the foregoing, if an Event of Default shall have occurred and be continuing at
the time of delivery of such certificate or at any time following the same until
the Change Date, the Applicable Margin for Eurodollar Loans shall not as a
consequence of this proviso be so reduced so long as such Event of Default shall
be continuing:
Debt Ratio Applicable Margin
Less than or equal to
4.50 to 1, but greater
than 4.00 to 1 1.125%
Less than or equal to
4.00 to 1, but greater
than 3.50 to 1 1.000%
Less than or equal to
3.50 to 1, but greater
than 3.00 to 1 .875%
Credit Agreement
Less than or equal to
3.00 to 1, but greater
than 2.50 to 1 .750%
Less than or equal to
2.50 to 1, but greater
than 2.00 to 1 .625%
Less than or equal to
2.00 to 1 .500%
Notwithstanding the foregoing, until the date on which the Company delivers to
the Banks the financial statements referred to in Section 9.01(a) for the
quarterly fiscal period ending February 28, 1996, the Debt Ratio shall for
purposes of this definition be deemed to be less than or equal to 3.00 to 1 but
greater than 2.50 to 1.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Barton" shall mean Barton Incorporated, a Delaware
corporation.
"Barton Letter of Credit" shall mean Letter of Credit No. PG
752759 dated June 29, 1993, a copy of which is attached as Exhibit D hereto,
issued by the Issuing Bank to American National Bank and Trust Company of
Chicago, as escrowee, in an original face amount equal to $28,200,000 and having
a face amount, on the date hereof (reflecting prior reductions thereto), of
$25,000,000.
"Barton Letter of Credit Banks" shall mean, collectively, the
Issuing Bank and (a) on the date hereof, the Banks having Barton Letter of
Credit Commitments on the signature pages hereof and (b) thereafter, the Banks
from time to time holding Barton Letter of Credit Commitments after giving
effect to any assignments permitted by Section 12.06 hereof.
"Barton Letter of Credit Commitment" shall mean, for each
Barton Letter of Credit Bank, the obligation of such Bank to participate in (or,
in the case of the Issuing Bank, to retain an interest in) the Barton Letter of
Credit in an aggregate amount up to but not exceeding the amount set opposite
the name of such Bank on the signature pages hereof under the caption "Barton
Letter of Credit Commitment" (as the same may be reduced from time to time
pursuant to Section 2.06 hereof). The aggregate amount of the Barton Letter of
Credit Commitments on the Effective Date is $25,000,000.
Credit Agreement
"Barton Letter of Credit Interest" shall mean, for each Bank
which is a Barton Letter of Credit Bank, such Bank's participation interest (or,
in the case of the Issuing Bank, the Issuing Bank's retained interest) in the
Issuing Bank's liability under the Barton Letter of Credit and such Bank's
rights and interests in the related Reimbursement Obligations and fees, interest
and other amounts payable in connection with the Barton Letter of Credit and
related Reimbursement Obligations.
"Barton Letter of Credit Termination Date" shall mean the
earlier of (i) December 16, 1996 or (ii) the date the Barton Letter of Credit
shall expire or be terminated.
"Barton Phantom Stock Plan" shall mean the Barton Incorporated
Phantom Stock Plan effective April 1, 1990 and as amended and restated for Units
Granted after March 31, 1992, as the same shall be modified and supplemented and
in effect from
time to time.
"Barton Stock Purchase Agreement" shall mean, collectively,
the Stock Purchase Agreement dated April 27, 1993, Amendment No. 1 thereto dated
May 3, 1993 and Amendment No. 2 thereto dated as of June 29, 1993, each among
the Company, Barton and the Barton Stockholders, as the same shall, subject to
Section 9.16 hereof, be modified and supplemented and in effect from time to
time.
"Barton Stockholders" shall mean, collectively, the
stockholders of Barton listed on Exhibit A of the Barton Stock Purchase
Agreement.
"Base Rate" shall mean, for any day, a rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans or Swingline
Loans that bear interest at rates based upon the Base Rate.
"Basel Accord" shall mean the proposals for risk-based capital
framework described by the Basel Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
Credit Agreement
"Basic Documents" shall mean, collectively, this
Agreement, the Notes, the Security Documents, the Revolving
Letter of Credit Documents and the Glenmore Acquisition
Documents.
"Borrowing Base" shall mean, as at any date, the sum of (a)
70% of the aggregate amount of Eligible Receivables at said date plus (b) 40% of
the aggregate value of Eligible Inventory at said date. The "value" of Eligible
Inventory shall be determined at the lower of cost or market in accordance with
GAAP, except that cost shall be determined on a first-in-first-out basis.
"Borrowing Base Certificate" shall mean a certificate of the
chief financial officer of the Company, substantially in the form of Exhibit B
hereto and appropriately completed.
"Business Day" shall mean any day (a) on which commercial
banks are not authorized or required to close in New York City and (b) if such
day relates to the giving of notices or quotes in connection with a LIBOR
Auction or to a borrowing of, a payment or prepayment of principal of or
interest on, a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a LIBOR Market Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Conversion or Interest Period, also on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period,
expenditures (including, without limitation, the aggregate amount of Capital
Lease Obligations incurred during such period) made by the Company or any of its
Consolidated Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements required to be
classified in accordance with GAAP as capital expenditures, but excluding
maintenance and repairs not required to be so classified) during such period
computed in accordance with GAAP. Notwithstanding the foregoing, neither the
Glenmore Acquisition nor any acquisition permitted pursuant to clause (d) of
Section 9.05 hereof shall be treated as a Capital Expenditure.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board), and,
for purposes of this Agreement, the amount of such
Credit Agreement
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP (including such Statement No. 13).
"Casualty Event" shall mean, with respect to any Property of
any Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other compensation.
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment Fee Percentage" shall mean 0.375% per annum;
provided that if the Debt Ratio as at the last day of any fiscal quarter of the
Company ending after August 31, 1995 (the "First Quarter") shall fall within any
of the ranges set forth in the schedule below then, subject to the delivery to
the Administrative Agent of a certificate of a senior financial officer of the
Company demonstrating such fact prior to the last day of the fiscal quarter
immediately following the First Quarter (the "Second Quarter"), the "Commitment
Fee Percentage" shall be reduced to the rate set forth opposite such range in
the schedule below during the period commencing on the third Business Day
following the date of receipt of such certificate to but not including the date
(the "Change Date") that is the earlier of (x) the third Business Day following
receipt of a certificate setting forth the Debt Ratio as at the last day of the
Second Quarter and (y) the last day of the fiscal quarter immediately following
the Second Quarter; provided further that notwithstanding the foregoing, if an
Event of Default shall have occurred and be continuing at the time of delivery
of such certificate or at any time following the same until the Change Date, the
Commitment Fee Percentage shall not as a consequence of this proviso be so
reduced so long as such Event of Default shall be continuing:
Credit Agreement
Commitment
Debt Ratio Fee Percentage
Less than or equal to
4.00 to 1, but greater
than 3.50 to 1 .325%
Less than or equal to
3.50 to 1, but greater
than 3.00 to 1 .300%
Less than or equal to
3.00 to 1, but greater
than 2.50 to 1 .250%
Less than or equal to
2.50 to 1, but greater
than 2.00 to 1 .225%
Less than or equal to
2.00 to 1 .200%
Notwithstanding the foregoing, until the date on which the Company delivers to
the Banks the financial statements referred to in Section 9.01(a) for the
quarterly fiscal period ending February 28, 1996, the Debt Ratio shall for
purposes of this definition be deemed to be less than or equal to 3.00 to 1 but
greater than 2.50 to 1.
"Commitments" shall mean the Revolving Credit
Commitments, the Term Loan Commitments and the Barton Letter of
Credit Commitments.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.11 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.11 hereof of one Type of Loans into another
Type of Loans, which may be accompanied by the
Credit Agreement
transfer by a Bank (at its sole discretion) of a Loan from one Applicable
Lending Office to another.
"Debt Ratio" shall mean, as at the last day of any fiscal
quarter of the Company (the "day of determination"), the ratio of (a) the
average of the aggregate amounts of Indebtedness of the Company and its
Consolidated Subsidiaries as at such day and as at the last days of each of the
three immediately preceding fiscal quarters to (b) Operating Cash Flow for the
period of four consecutive fiscal quarters ending on such day of determination.
Notwithstanding the foregoing,
(i) for the purposes of determining Debt Ratio used in
the definition of Applicable Margin, Commitment Fee Percentage and
Letter of Credit Fee Percentage, the average amounts of Indebtedness
pursuant to clause (a) above as at the following dates shall be
determined as follows:
(A) as at February 28, 1996, an amount equal to (x)
the average of the aggregate amounts of Indebtedness of the
Company and its Consolidated Subsidiaries (other than any
Indebtedness of the Company and its Consolidated Subsidiaries
in respect of Revolving Loans and Revolving Letter of Credit
Interest hereunder) as at such day and as at the last day of
the immediately preceding fiscal quarter plus (y) $50,000,000;
and
(B) as at May 31, 1996, an amount equal to (x) the
average of the aggregate amounts of Indebtedness of the
Company and its Consolidated Subsidiaries (other than any
Indebtedness of the Company and its Consolidated Subsidiaries
in respect of Revolving Loans and Revolving Letter of Credit
Interest hereunder) as at such day and as at the last days of
the immediately preceding two fiscal quarters plus (y)
$50,000,000;
(ii) for the purposes of determining Debt Ratio for all
other purposes of this Agreement, the average amounts of Indebtedness
pursuant to clause (a) above as at the following dates shall be
determined as follows:
(A) as at November 30, 1995, an amount equal to the
aggregate amount of Indebtedness of the Company and its
Consolidated Subsidiaries as at such day;
(B) as at February 28, 1996, an amount equal to the
average of the aggregate amounts of Indebtedness of the
Company and its Consolidated Subsidiaries as at
Credit Agreement
such day and as at the last day of the immediately
preceding fiscal quarter; and
(C) as at May 31, 1996, an amount equal to the
average of the aggregate amounts of Indebtedness of the
Company and its Consolidated Subsidiaries as at such day and
as at the last days of the immediately preceding two fiscal
quarters;
(iii) Operating Cash Flow pursuant to clause (b) above as at
the following dates shall be determined as follows:
(A) as at November 30, 1995, an amount equal to (x)
Operating Cash Flow for the fiscal quarter ending on such day
times (y) four;
(B) as at February 28, 1996, an amount equal to (x)
Operating Cash Flow for the period of two consecutive fiscal
quarters ending on such day times (y) two; and
(C) as at May 31, 1996, an amount equal to (x)
Operating Cash Flow for the period of three fiscal quarters
ending on such day times (y) 1-1/3; and
(iv) Indebtedness as at the last day of each fiscal
quarter included in the determination of average Indebtedness pursuant
to clause (a) above shall be determined under the assumption that any
prepayment of Term Loans hereunder from the proceeds of any Equity
Issuance at any time during any such fiscal quarter included in the
calculation thereof shall have been made in the first such fiscal
quarter.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" shall mean any sale, assignment, transfer or
other disposition of any Property (whether now owned or hereafter acquired) by
the Company or any of its Subsidiaries to any Person excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or
Credit Agreement
other analogous fund for, or the purchase, redemption, retirement or other
acquisition of, any shares of any class of stock of the Company or of any
warrants, options or other rights to acquire the same (or to make any payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market or equity value of the Company or
any Subsidiary), but excluding dividends payable solely in shares of common
stock of the Company.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Effective Date" shall mean the date on which the conditions
to effectiveness set forth in Section 7.01 hereof shall have been satisfied, and
the Loans hereunder made.
"Eligible Inventory" shall mean, as at any date, all inventory
owned by the Obligors that is required to be reflected on a consolidated balance
sheet of the Company and its Consolidated Subsidiaries prepared in accordance
with GAAP (except that cost shall be determined on a first-in-first-out basis)
less the aggregate amount of all accounts payable owed by the Obligors to
producers of agricultural products located in the State of California.
"Eligible Receivables" shall mean, as at any date, the
aggregate amount of all receivables owned by the Obligors (net of bad debt
reserves) that are required to be reflected on a consolidated balance sheet of
the Company and its Consolidated Subsidiaries prepared in accordance with GAAP.
"Employee Stock Purchase Plan" shall mean the
Canandaigua Wine Company, Inc. 1989 Employee Stock Purchase Plan
as the same shall be modified and supplemented and in effect from
time to time.
"Environmental Claim" shall mean, with respect to any Person,
(a) any written or oral notice, claim, demand or other communication
(collectively, a "claim") by any other Person alleging or asserting such
Person's liability for investigatory costs, cleanup costs, governmental response
costs, damages to natural resources or other Property, personal injuries, fines
or penalties arising out of, based on or resulting from (i) the presence, or
Release into the environment, of any Hazardous Material at any location, whether
or not owned by such Person, or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any
governmental authority for enforcement, cleanup, removal,
Credit Agreement
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, as now
or hereafter in effect, relating to the regulation or protection of human
health, safety or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of pollu-
tants, contaminants, chemicals or toxic or hazardous substances or wastes.
"Equity Issuance" shall mean (a) any issuance or sale by the
Company or any of its Subsidiaries after the Effective Date of (i) any capital
stock, (ii) any warrants or options exercisable in respect of capital stock
(other than any warrants or options issued to directors, officers or employees
of the Company or any of its Subsidiaries and any capital stock of the Company
issued upon the exercise of such warrants or options) or (iii) any other
security or instrument representing an equity interest (or the right to obtain
any equity interest) in the issuing or selling Person or (b) the receipt by the
Company or any of its Subsidiaries after the Effective Date of any capital
contribution received (whether or not evidenced by any equity security issued by
the recipient of such contribution); provided that Equity Issuance shall not
include (x) any such issuance or sale by any Subsidiary of the Company to the
Company or any Wholly Owned Subsidiary of the Company or (y) any capital
contribution by the Company or any Wholly Owned Subsidiary of the Company to any
Subsidiary of the Company.
"Equity Rights" shall mean, with respect to any Person, any
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.
Credit Agreement
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business that is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as the Company or is under common
control (within the meaning of Section 414(c) of the Code) with the Company.
"Eurodollar Base Rate" shall mean, with respect to any
Eurodollar Loan or LIBOR Market Loan for any Interest Period therefor, the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/16 of 1%) of
the respective rates per annum quoted by each Reference Bank at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on the date two
Business Days prior to the first day of such Interest Period for the offering by
such Reference Bank to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan or LIBOR Market Loan
to be made by such Reference Bank for such Interest Period. If any Reference
Bank is not participating in any Eurodollar Loan or LIBOR Market Loan during any
Interest Period therefor, the Eurodollar Base Rate for such Loan for such
Interest Period shall be determined by reference to the amount of the Loan that
such Reference Bank would have made or had outstanding had it been participating
in such Loan during such Interest Period provided that in the case of any LIBOR
Market Loan, the Eurodollar Base Rate for such Loan shall be determined with
reference to deposits of $25,000,000.
"Eurodollar Loans" shall mean Syndicated Loans the interest
rates on which are determined on the basis of rates referred to in the
definition of "Eurodollar Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loan for such Interest Period divided by 1
minus the Reserve Requirement for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such
term in Section 10 hereof.
"Excess Cash Flow" shall mean for any fiscal year (the
"Current Fiscal Year"), Adjusted Cash Flow for the Current Fiscal Year, minus
the sum of (i) all payments made by the Company under Sections 2.2, 2.3, 2.4,
2.5 and 2.6 of the Barton Stock Purchase
Credit Agreement
Agreement during the Current Fiscal Year, plus (ii) the maximum possible amount
of all payments required to be made by the Company under Sections 2.2, 2.3, 2.4,
2.5 and 2.6 of the Barton Stock Purchase Agreement during the immediately
succeeding fiscal year, plus (iii) Fixed Charges for the Current Fiscal Year.
"Existing Banks" shall mean the lenders party as "Banks" to
the Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning assigned to
such term in the recitals hereof.
"Existing Letters of Credit" shall have the meaning assigned
to such term in Section 2.05(m) hereof.
"Existing Letter of Credit Liabilities" shall have the meaning
assigned to such term in Section 2.05(m) hereof.
"Existing Loans" shall mean, collectively the Existing
Revolving Credit Loans and the Existing Term Loans.
"Existing Revolving Credit Loans" shall have the meaning
assigned to such term in Section 2.01(a) hereof.
"Existing Term Loans" shall have the meaning assigned to such
term in Section 2.01(b) hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"Fixed Charges" shall mean, for any period, the sum, for the
Company and its Consolidated Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all payments
of principal of Indebtedness scheduled to be made during such period plus (b)
all Interest Expense for such period plus (c) the aggregate amount of
Credit Agreement
federal and state taxes paid during such period to the extent that net operating
income for such period pursuant to clause (a) of the definition of "Operating
Cash Flow" in this Section 1.01 has been calculated before giving effect to such
taxes.
"Fixed Charges Ratio" shall mean, as at the last day of any
fiscal quarter, the ratio of (a) Adjusted Cash Flow for the period of four
fiscal quarters ending on or most recently ended prior to such day to (b) Fixed
Charges for such period.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with Section
1.02(a) hereof, are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Glenmore Entities" shall mean, collectively, United
Distillers Glenmore, Inc., a Delaware corporation, Schenley Industries Inc., a
Delaware corporation, Medley Distilling Company, a Kentucky corporation, United
Distillers Manufacturing, Inc., a Delaware corporation and Viking Distillery,
Inc., a
Georgia corporation.
"Glenmore Acquisition" shall mean the acquisition by Barton
pursuant to the Glenmore Acquisition Documents of certain of the assets of the
Glenmore Entities.
"Glenmore Acquisition Agreement" shall mean the Asset Purchase
Agreement dated as of August 29, 1995 among Barton and the Glenmore Entities, as
the same shall subject to Section 9.16 hereof, be modified and supplemented and
in effect from time to time.
"Glenmore Acquisition Documents" shall mean the Glenmore
Acquisition Agreement and all other agreements and instruments (together with
any and all exhibits, annexes and schedules thereto) executed and delivered
between Barton or the Company (or any of their Subsidiaries) and any of the
Glenmore Entities, as the same shall, subject to Section 9.16 hereof, be
modified and supplemented and in effect from time to time.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor)
Credit Agreement
Property, products, materials, supplies or services primarily for the purpose of
enabling a debtor to make payment of such debtor's obligations or an agreement
to assure a creditor against loss, and including, without limitation, causing a
bank or other financial institution to issue a letter of credit or other similar
instrument for the benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The terms "Guarantee"
and "Guaranteed" used as a verb shall have a correlative meaning.
"Hazardous Material" shall mean, collectively, (a) any
petroleum or petroleum products, flammable explosives, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, and transformers or other equipment that contain dielectric fluid
containing polychlorinated biphenyls (PCB's), (b) any chemicals or other
materials or substances which are defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials", "extremely
hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic
pollutants", "contaminants", "pollutants" or words of similar import under any
Environmental Law and (c) any other chemical or other material or substance,
exposure to which is prohibited, limited or regulated under any Environmental
Law.
"Heublein" shall mean Heublein Inc., a Connecticut
corporation.
"Heublein Acquisition" shall mean the acquisition by
Canandaigua West, Inc., a Wholly Owned Subsidiary of the Company, of certain
assets of Heublein, which acquisition occurred on the "Effective Date" under and
as defined in the Existing Credit Agreement.
"Inactive Subsidiary" shall mean, as at any date, any
Subsidiary of the Company that, as at the end of and for the quarterly
accounting period ending on or most recently ended prior to such date, shall
have less than $100,000 in assets and less than $100,000 in gross revenues.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than (i) trade accounts payable (other than for borrowed money) arising, and
accrued expenses incurred, in the
Credit Agreement
ordinary course of business so long as such trade accounts payable are payable
within 180 days of the date the respective goods are delivered or the respective
services are rendered or (ii) the Company's obligations to make payments under
Article II of the Barton Stock Purchase Agreement; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Information Memorandum" shall mean, the Canandaigua Wine
Company, Inc. Information Memorandum prepared in connection with the
solicitation of banks to become parties to this Agreement as "Banks"
hereunder, as the same shall be supplemented by any additional financial
information forwarded by Chase to the Banks at the request of the Company.
"Intangibles" shall mean, as at any date of determination, the
book value of all assets which are required to be classified in accordance with
GAAP as intangibles on the consolidated balance sheet of the Company and its
Consolidated Subsidiaries.
"Interest Coverage Ratio" shall mean, as at any date, the
ratio of (a) Operating Cash Flow for the period of four fiscal quarters ending
on or most recently ended prior to such date to (b) Interest Expense for such
period.
"Interest Expense" shall mean, for any period, the sum, for
the Company and its Consolidated Subsidiaries (determined on a consolidated
basis 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 pay-
able (or minus the net amounts receivable) under Interest Rate Protection
Agreements accrued during such period (whether or not actually paid or received
during such period) minus (c) all interest income during such period.
Notwithstanding the foregoing, the interest component of payments made by the
Company under Sections 2.2, 2.3, 2.4, 2.5 and 2.6 of the Barton Stock Purchase
Agreement during such period shall not be included in Interest Expense.
Credit Agreement
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a
Base Rate Loan or the last day of the next preceding Interest Period
for such Loan and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the Company
may select as provided in Section 4.05 hereof, except that each
Interest Period that commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month;
(b) With respect to any Set Rate Loan, the period commencing
on the date such Set Rate Loan is made and ending on any Business Day
up to 90 days thereafter, as the Company may select as provided in
Section 2.03(b) hereof; and
(c) With respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and ending on the
numerically corresponding day in the second, third or sixth calendar
month thereafter, as the Company may select as provided in Section
2.03(b) hereof, except that each Interest Period that commences on the
last Business Day of a calendar month (or any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent
calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for
any Revolving Credit Loan or Money Market Loan would otherwise end after the
Revolving Credit Termination Date, such Interest Period shall end on the
Revolving Credit Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date unless, after giving
effect thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iii) each Interest Period that would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and (iv)
notwithstanding clauses (i) and (ii) above, no Interest Period shall have a
duration of less than one month and, if the
Credit Agreement
Interest Period for any Eurodollar Loan or LIBOR Market Loan would otherwise be
a shorter period, such Loan shall not be available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies. For purposes hereof, the "credit exposure" at any time of any
Person under an Interest Rate Protection Agreement to which such Person is a
party shall be determined at such time in accordance with the standard methods
of calculating credit exposure under similar arrangements as prescribed from
time to time by the Administrative Agent, taking into account potential interest
rate movements and the respective termination provisions and notional principal
amount and term of such Interest Rate Protection Agreement.
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such 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 excluding
any such deposit, advance, loan or extension of credit having a term not
exceeding 120 days representing the purchase price of inventory or supplies sold
by such Person in the ordinary course of business); (c) the entering into of any
Guarantee of, or other contingent obligation with respect to, Indebtedness or
other liability of any other Person and (without duplication) any amount
committed to be advanced, lent or extended to such Person; or (d) the entering
into of any Interest Rate Protection Agreement.
"Issuing Bank" shall mean (i) in respect of the Barton Letter
of Credit, Chase, as issuer of the Barton Letter of Credit under Section 2.04
hereof, together with its successors and assigns in such capacity and (ii) in
respect of the Revolving Letters of Credit, collectively, Chase as issuer of all
Revolving Letters of Credit (other than the Qingdao Letter of Credit) under
Section 2.05 hereof, and The First National Bank of Chicago as
Credit Agreement
issuer of the Qingdao Letter of Credit, in each case together with its
successors and assigns in such capacity.
"Joint Venture Entity" shall mean, collectively, (i) any
Subsidiary formed or acquired by the Company after the date hereof that is not a
Wholly Owned Subsidiary, (ii) any other entity of which the Company and its
Wholly Owned Subsidiaries hold more than 50% of the ownership interests in such
entity, but which may not be a Subsidiary because the Company and its Wholly
Owned Subsidiaries may not have ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions and (iii) any
Subsidiary of any Joint Venture Entity described in the foregoing clauses (i) or
(ii).
"Letters of Credit" shall mean, collectively, the Barton
Letter of Credit and the Revolving Letters of Credit.
"Letter of Credit Fee Percentage" shall mean 1.125% per annum;
provided that if the Debt Ratio as at the last day of any fiscal quarter of the
Company ending after August 31, 1995 (the "First Quarter") shall fall within any
of the ranges set forth in the schedule below then, subject to the delivery to
the Administrative Agent of a certificate of a senior financial officer of the
Company demonstrating such fact prior to the last day of the fiscal quarter
immediately following the First Quarter (the "Second Quarter"), the "Letter of
Credit Fee Percentage" shall be reduced to the rate set forth opposite such
range in the schedule below during the period commencing on the third Business
Day following the date of receipt of such certificate to but not including the
date (the "Change Date") that is the earlier of (x) the third Business Day
following receipt of a certificate setting forth the Debt Ratio as at the last
day of the Second Quarter and (y) the last day of the fiscal quarter immediately
following the Second Quarter; provided further that notwithstanding the
foregoing, if an Event of Default shall have occurred and be continuing at the
time of delivery of such certificate or at any time following the same until the
Change Date, the Letter of Credit Fee Percentage shall not as a consequence of
this proviso be so reduced so long as such Event of Default shall be continuing:
Letter of Credit
Debt Ratio Fee Percentage
Less than or equal to
4.50 to 1, but greater
than 4.00 to 1 1.000%
Less than or equal to
Credit Agreement
4.00 to 1, but greater
than 3.50 to 1 .875%
Less than or equal to
3.50 to 1, but greater
than 3.00 to 1 .750%
Less than or equal to
3.00 to 1, but greater
than 2.50 to 1 .625%
Less than or equal to
2.50 to 1, but greater
than 2.00 to 1 .500%
Less than or equal to
2.00 to 1 .375%
Notwithstanding the foregoing, until the date on which the Company delivers to
the Banks the financial statements referred to in Section 9.01(a) for the
quarterly fiscal period ending February 28, 1996, the Debt Ratio shall for
purposes of this definition be deemed to be less than or equal to 3.00 to 1 but
greater than 2.50 to 1.
"Letter of Credit Liabilities" shall mean, without
duplication, at any time and in respect of any Letter of Credit, the sum of (a)
the undrawn face amount of such Letter of Credit plus (b) the aggregate unpaid
principal amount of all Reimbursement Obligations of the Company at such time
due and payable in respect of all drawings made under such Letter of Credit. For
the purposes of this Agreement, a Bank shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in such
Letter of Credit under Sections 2.04 or 2.05 hereof, and an Issuing Bank shall
be deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in such Letter of Credit after giving effect to the
acquisition by the Barton Letter of Credit Banks or the Revolving Credit Banks,
as the case may be, other than such Issuing Bank of their participation
interests under said Sections 2.04 and 2.05.
"LIBO Margin" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(C) hereof.
"LIBO Rate" shall mean, for any LIBOR Market Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Administrative Agent to be equal to the rate of interest specified in clause
(a) of the definition of "Eurodollar Base Rate" in this Section 1.01 for the
Interest
Credit Agreement
Period for such Loan divided by 1 minus the Reserve Requirement (if any) for
such Loan for such Interest Period.
"LIBOR Auction" shall mean a solicitation of Money Market
Quotes setting forth LIBO Margins based on the LIBO Rate pursuant to Section
2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates pursuant to a
LIBOR Auction.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Basic Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Loans" shall mean, collectively, Syndicated Loans,
Money Market Loans and Swingline Loans.
"Majority Banks" shall mean the Majority Revolving
Credit Banks, the Majority Term Loan Banks and the Majority
Barton Letter of Credit Banks.
"Majority Barton Letter of Credit Banks" shall mean Barton
Letter of Credit Banks having at least 66-2/3% of the aggregate Barton Letter of
Credit Commitments, or following the issuance of the Barton Letter of Credit,
Banks holding at least 66-2/3% of the aggregate unpaid principal amount of the
Letter of Credit Liabilities in respect of the Barton Letter of Credit.
"Majority Revolving Credit Banks" shall mean Revolving Credit
Banks having at least 66-2/3% of the aggregate amount of the Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have terminated, Banks
holding at least 66-2/3% of the sum of (a) aggregate unpaid principal amount of
the Revolving Credit Loans plus (b) the aggregate unpaid principal amount of the
Money Market Loans plus (c) the aggregate amount of all Letter of Credit
Liabilities in respect of Revolving Letters of Credit.
"Majority Term Banks" shall mean Term Loan Banks holding at
least 66-2/3% of the aggregate outstanding principal amount of the Term Loans
or, if the Term Loans shall not have been made, at least 66-2/3% of the Term
Loan Commitments.
Credit Agreement
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Company and its Subsidiaries taken as a
whole, (b) the legal ability or financial capacity of the Company or any
Subsidiary Guarantor to perform its obligations under any of the Basic Documents
to which it is a party, (c) the legality, validity or enforceability of any of
the Basic Documents, (d) the rights and remedies of the Banks and the
Administrative Agent under any of the Basic Documents or the perfection or
priority of any of the Liens contemplated by any of the Security Documents or
(e) the timely payment of the principal of or interest on the Loans or other
amounts payable in connection therewith. Material Adverse Effect shall also
include, for purposes of Section 8.13 hereof, any material adverse effect upon
the operation of any of the facilities owned, operated or leased by the Company
or any of its Subsidiaries.
"Money Market Borrowing" shall have the meaning assigned to
such term in Section 2.03(b) hereof.
"Money Market Loan Limit" shall have the meaning assigned to
such term in Section 2.03(c)(ii) hereof.
"Money Market Loans" shall mean the loans provided for
by Section 2.03 hereof.
"Money Market Notes" shall mean the promissory notes provided
for by Section 2.09(c) hereof and all promissory notes delivered in substitution
or exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Money Market Quote" shall mean an offer in accordance with
Section 2.03(c) hereof by a Bank to make a Money Market Loan with one single
specified interest rate.
"Money Market Quote Request" shall have the meaning assigned
to such term in Section 2.03(b) hereof.
"Mortgage Notes" shall have the meaning assigned to such term
in Section 2.10(b) hereof.
"Mortgages" shall mean, collectively, the respective Deeds of
Trust and Mortgages executed and delivered by the Company and its Subsidiaries
pursuant to the Existing Credit
Credit Agreement
Agreement (or pursuant to earlier restatements thereof or pursuant to the
original Credit Agreement dated as of September 30, 1991), covering the
properties of the respective Obligors identified in Parts A and B of Schedule V
hereto, in each case as such Deeds of Trust and Mortgages have been heretofore
modified, as such Deeds of Trust and Mortgages shall be modified pursuant to
instruments of Modification and Confirmation executed and delivered pursuant to
Section 7.01(h) hereto, and as such Deeds of Trust and Mortgages shall be
further modified and supplemented and in effect from time to time.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition, the amount of
Net Cash Payments received in connection with such
Disposition;
(ii) in the case of any Casualty Event, the aggregate
amount of proceeds of insurance, condemnation awards and other
compensation received by the Company and its Subsidiaries in respect of
such Casualty Event net of (A) reasonable expenses incurred by the
Company and its Subsidiaries in connection therewith and (B)
contractually required repayments of Indebtedness (other than
Indebtedness to the Banks hereunder) to the extent secured by a Lien on
such Property and any income and transfer taxes payable by the Company
or any of its Subsidiaries in respect of such Casualty Event;
(iii) in the case of any Equity Issuance, the aggregate
amount of all cash received by the Company and its Subsidiaries in
respect of such Equity Issuance net of reasonable expenses incurred by
the Company and its Subsidiaries in connection therewith; and
(iv) in the case of any issuance of Subordinated
Indebtedness, the aggregate amount of all cash received by the Company
in respect of such issuance net of reasonable expenses incurred by the
Company and its Subsidiaries in connection therewith and net of cash
proceeds so received and applied to refinance other Subordinated
Indebtedness as contemplated by Section 9.17 hereof.
Credit Agreement
"Net Cash Payments" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments, and the fair market
value of any non-cash consideration, received by the Company and its
Subsidiaries directly or indirectly in connection with such Disposition;
provided that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
by the Company and its Subsidiaries in connection with such Disposition and (ii)
any Federal, state and local income or other taxes estimated to be payable by
the Company and its Subsidiaries as a result of such Disposition (but only to
the extent that such estimated taxes are in fact paid to the relevant Federal,
state or local governmental authority within three months of date of such
Disposition) and (b) Net Cash Payments shall be net of any repayments by the
Company or any of its Subsidiaries of Indebtedness to the extent that (i) such
Indebtedness is to the Banks hereunder or (ii) such Indebtedness is secured by a
Lien on the Property that is the subject of such Disposition and the transferee
of (or holder of a Lien on) such Property requires that such Indebtedness be
repaid as a condition to the purchase of such Property.
"Non-Mortgage Notes" shall have the meaning assigned to such
term in Section 2.10(b) hereof.
"Notes" shall mean, collectively, Syndicated Notes,
Money Market Notes and Swingline Notes.
"Off-Premises Warehouses" shall mean all warehouses and other
bailment facilities owned and operated by Persons other than any Obligor that
are not located on Property owned or leased by any Obligor and in which Eligible
Inventory is maintained from time to time.
"Operating Cash Flow" shall mean, for any period, the sum, for
the Company and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following: (a) net
operating income (calculated before taxes, interest income, Interest Expense,
extraordinary and unusual items and income or loss attributable to equity in
Affiliates) for such period plus (b) depreciation and amortization (to the
extent deducted in determining net operating income) for such period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
Credit Agreement
"Permitted Investments" shall mean: (a) direct obligations of
the United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or of
any agency thereof, in either case maturing not more than 90 days from the date
of acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; (c) commercial paper rated A-1 or better or P-1 by Standard & Poor's
Rating Group, a division of McGraw-Hill, Inc. ("S&P") or Moody's Investors
Services, Inc. ("Moody's"), respectively, maturing not more than 90 days from
the date of acquisition thereof; and (d) tax-exempt and tax-preferred debt
instruments (including variable rate demand notes, municipal bonds and money
market preferred debt instruments) rated AAA or Aaa by S&P and Moody's,
respectively, maturing not more than 90 days from the date of acquisition
thereof.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization, limited liability company or government (or any agency,
instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of
any Loan, any Reimbursement Obligation or any other amount under this Agreement,
any Note or any other Basic Document that is not paid when due (whether at
stated maturity, by acceleration, by optional or mandatory prepayment or
otherwise), a rate per annum during the period from and including the due date
to but excluding the date on which such amount is paid in full equal to 2% plus
the Base Rate as in effect from time to time plus the Applicable Margin for Base
Rate Loans (provided that, if the amount so in default is principal of a
Eurodollar Loan or a Money Market Loan and the due date thereof is a day other
than the last day of the Interest Period therefor, the "Post-Default Rate" for
such principal shall be, for the period from and including such due date to but
excluding the last day of the Interest Period, 2% plus the interest rate for
such Loan as provided in Section 3.02 hereof and, thereafter, the rate provided
for above in this definition).
Credit Agreement
"Prime Rate" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of Chase,
located on the date hereof at 1 Chase Manhattan Plaza, New York, New York 10081.
"Principal Payment Dates" shall mean the Quarterly Dates
falling on or nearest to March 15, June 15, September 15 and December 15 of each
year, commencing with December 15, 1995, through and including August 15, 2001.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Proportionate Share" shall mean, for any Barton Letter of
Credit Bank at any time of determination, the percentage that the aggregate
amount of such Bank's Barton Letter of Credit Commitment bears to the aggregate
amount of all Barton Letter of Credit Commitments of the Barton Letter of Credit
Banks.
"Qingdao Letter of Credit" shall mean Letter of Credit No.
04021104 issued by The First National Bank of Chicago to Qingdao Brewery, 56
Dengzhou Road, Qingdao, People's Republic of China, as such Letter of Credit
shall, subject to the provisions of Sections 2.05(k) and 2.05(l) hereof, be
modified, renewed and reissued from time to time.
"Qingdao Letter of Credit Limit" shall mean (i) as of the
Effective Date, $3,071,250, and (ii) as of the date of any modification or
renewal or reissuance of the Qingdao Letter of Credit, the amount specified by
the Issuing Bank to the Administrative Agent and the Company at the time of such
modification, renewal or reissuance as the new "Qingdao Letter of Credit Limit"
for purposes of this Agreement.
"Quarterly Dates" shall mean the fifteenth day of each March,
June, September and December, the first of which shall be September 15, 1995;
provided that solely with respect to the calculation and payment of fees in
respect of the Letters of Credit under Sections 2.04(f) and 2.05(g) hereof,
"Quarterly Date" shall mean the last day of each March, June, September and
December, provided, further, that if any such day is not a Business Day, then
such Quarterly Date shall be the next succeeding Business Day.
Credit Agreement
"Reference Banks" shall mean Chase and The First
National Bank of Chicago (or their respective Applicable Lending
Offices, as the case may be).
"Regulations A, D, G, T, U and X" shall mean, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any
change after the date of this Agreement in Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption or
making after such date of any interpretation, directive or request applying to a
class of banks including such Bank of or under any Federal, state or foreign law
or regulations (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) by any court or governmental or
monetary authority charged with the interpretation or administration thereof.
"Reimbursement Obligations" shall mean, at any time, the
obligations of the Company then outstanding, or which may thereafter arise, in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
an Issuing Bank in respect of any drawings under a Letter of Credit.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Reserve Requirement" shall mean, for any Interest Period for
any Eurodollar Loan or LIBOR Market Loan, the average maximum rate at which
reserves (including, without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall include any other reserves required to
be maintained by such member banks by reason of any Regulatory Change with
respect to (i) any category of liabilities that includes deposits by reference
to which the Eurodollar Base Rate is to be determined as provided in the
definition of "Eurodollar Base Rate" in this
Credit Agreement
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans or LIBOR Market Loan.
"Restructuring Capital Expenditures" shall mean Capital
Expenditures made by the Company and its Consolidated Subsidiaries in connection
with the consolidation of production facilities following the consummation of
the Heublein Acquisition.
"Revolving Credit Banks" shall mean (a) on the date hereof,
the Banks having Revolving Credit Commitments on the signature pages hereof and
(b) thereafter, the Banks from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06 hereof.
"Revolving Credit Commitment" shall mean, for each Revolving
Credit Bank, the obligation of such Bank to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Bank on the signature pages hereto
under the caption "Revolving Credit Commitment" (as the same may be reduced from
time to time pursuant to Section 2.06 hereof). The aggregate principal amount of
the Revolving Credit Commitments on the Effective Date is $185,000,000.
"Revolving Credit Commitment Percentage" shall mean, with
respect to any Revolving Credit Bank, the ratio of (a) the amount of the
Revolving Credit Commitment of such Bank to (b) the aggregate amount of the
Revolving Credit Commitments of all of the Banks.
"Revolving Credit Loans" shall mean the loans provided for by
Sections 2.01(a) and 2.01(c) hereof, which may be Base Rate Loans and/or (except
for Revolving Credit Loans that are also Swingline Loans) Eurodollar Loans.
"Revolving Credit Notes" shall mean the promissory notes
provided for by Section 2.10(a) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Revolving Credit Termination Date" shall mean the Quarterly
Date falling on or nearest to June 15, 2001.
"Revolving Letter of Credit Documents" shall mean, with
respect to any Revolving Letter of Credit, collectively, any application
therefor and any other agreements, instruments,
Credit Agreement
guarantees or other documents (whether general in application or applicable only
to such Revolving Letter of Credit) governing or providing for (a) the rights
and obligations of the parties concerned or at risk with respect to such
Revolving Letter of Credit or (b) any collateral security for any of such
obligations, each as the same may be modified and supplemented and in effect
from time to time.
"Revolving Letter of Credit Interest" shall mean, for each
Bank which is a Revolving Credit Bank, such Bank's participation interest (or,
in the case of an Issuing Bank, such Issuing Bank's retained interest) in such
Issuing Bank's liability under any Revolving Letter of Credit issued by such
Issuing Bank and such Bank's rights and interests in the Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Revolving Letters of Credit and related Reimbursement Obligations.
"Revolving Letters of Credit" shall have the meaning assigned
to such term in Section 2.05 hereof.
"Security Agreement" shall mean the Second Amended and
Restated Security Agreement dated as of August 5, 1994 between the Company, the
Obligors and Chase, as Agent, a copy of which is attached as Exhibit C-1 hereto,
as the same shall be amended by the Security Agreement Amendment and as the same
shall be further modified and supplemented and in effect from time to time.
"Security Agreement Amendment" shall mean an amendment to the
Security Agreement in substantially the form of Exhibit C-2 hereto.
"Security Documents" shall mean, collectively, the Security
Agreement, the Mortgages and all Uniform Commercial Code financing statements
required by this Agreement, the Security Agreement or the Mortgages to be filed
with respect to the security interests in personal Property and fixtures created
pursuant to the Security Agreement or the Mortgages.
"Senior Subordinated Debt Documents" shall mean all documents
and agreements executed and delivered in connection with the initial issuance of
the Senior Subordinated Notes, including, without limitation, the Senior
Subordinated Notes, the Senior Subordinated Note Indenture and Senior
Subordinated Note Guarantees, as the same shall, subject to Section 9.17 hereof,
be modified and supplemented and in effect from time to time.
"Senior Subordinated Note Guarantees" shall mean,
collectively, the Guarantees, pursuant to Section 1014 or Article
Credit Agreement
14 of the Senior Subordinated Note Indenture, by each Subsidiary Guarantor of
the punctual payment and performance when due of all of the Company's Indenture
Obligations (as defined in the Senior Subordinated Note Indenture), as the same
shall, subject to Section 9.17 hereof, be modified and supplemented and in
effect from time to time.
"Senior Subordinated Notes" shall mean the Company's Senior
Subordinated Notes due 2003 issued pursuant to the Senior Subordinated Note
Indenture, as the same shall, subject to Section 9.17 hereof, be modified and
supplemented and in effect from time to time.
"Senior Subordinated Note Indenture" shall mean the Indenture
dated as of December 27, 1993 between the Company, the Subsidiary Guarantors and
Chemical Bank, as trustee, as such agreement shall, subject to Section 9.17
hereof, be modified and supplemented and in effect from time to time.
"Set Rate" shall have the meaning assigned to such term in
Section 2.03(c)(ii)(D) hereof.
"Set Rate Auction" shall mean a solicitation of Money Market
Quotes setting forth Set Rates pursuant to Section 2.03 hereof.
"Set Rate Loans" shall mean Money Market Loans the interest
rates on which are determined on the basis of Set Rates pursuant to a Set Rate
Auction.
"Stock Option Plan" shall mean the Stock Option and Stock
Appreciation Plan of the Company dated July 1, 1987, as the same shall be
amended and supplemented and in effect from time to time.
"Subordinated Indebtedness" shall mean, collectively, (a)
Indebtedness of the Company in respect of the Senior Subordinated Notes and (b)
other Indebtedness incurred in accordance with the provisions of Section 9.17
hereof.
"Subsidiary" shall mean, for any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the
Credit Agreement
happening of any contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Swingline Bank" shall mean The Chase Manhattan Bank
(National Association), Rochester Division, in its capacity as
the Swingline Bank under Section 2.01(c) hereof.
"Swingline Loans" shall have the meaning assigned to such term
in Section 2.01(c) hereof, which shall be Base Rate Loans only.
"Swingline Note" shall mean the promissory note provided for
by Section 2.10(c) hereof and any promissory note delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Syndicated Loans" shall mean the Revolving Credit
Loans and the Term Loans.
"Syndicated Notes" shall mean the Revolving Credit
Notes and the Term Loan Notes.
"Tangible Net Worth" shall mean, as at any date, the sum for
the Company and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following:
(a) the amount of capital stock, plus
(b) the amount of additional paid-in capital and retained
earnings (or, in the case of an additional paid-in capital or retained
earnings deficit, minus the amount of such deficit), minus
(c) the sum of the cost of treasury shares and
Intangibles as at such date;
provided, however that in no event shall Subordinated Indebtedness be included
in Tangible Net Worth.
"Tenner Brothers Facility" shall mean the production facility
located at Road #2, Box 85, Patrick, South Carolina and as of the date hereof
owned by Tenner Brothers, Inc.
"Term Loan Banks" shall mean (a) on the date hereof, the Banks
having Term Loan Commitments on the signature pages
Credit Agreement
hereof and (b) thereafter, the Banks from time to time holding Term Loans and
Term Loan Commitments after giving effect to any assignments thereof permitted
by Section 12.06 hereof.
"Term Loan Commitment" shall mean, for each Term Loan Bank,
the obligation of such Bank to make one or more Term Loans in an aggregate
amount equal to the amount set opposite the name of such Bank on the signature
pages hereof under the caption "Term Loan Commitment" (as the same may be
reduced from time to time pursuant to Section 2.06 hereof). The aggregate
principal amount of the Term Loan Commitments on the Effective Date is
$246,000,000.
"Term Loan Commitment Termination Date" shall mean
November 1, 1995.
"Term Loan Notes" shall mean the promissory notes provided for
by Section 2.10(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Term Loans" shall mean the loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Type" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Vintners" shall mean New VICI, Inc. (formerly known as
Vintners International Company, Inc.), a Delaware corporation.
"Vintners Acquisition Agreement" shall mean the Asset Sale
Agreement dated as of September 14, 1993 between Vintners and the Company (and
assigned by the Company to Vintners International Company, Inc., a New York
corporation), as amended by Amendment No. 1 dated October 14, 1993 and Amendment
No. 2 dated January 14, 1994, and as the same shall be modified and supplemented
and in effect from time to time.
"Wholly Owned Subsidiary" shall mean, with respect to any
Person, any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly owned or
controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person. For
purposes hereof, BB Servicios, S.A. de C.V. or Monarch Wine Company, Limited
Partnership shall be deemed to be Wholly Owned
Credit Agreement
Subsidiaries so long as the ownership interest of the Company therein shall not
fall below that indicated on Schedule III hereto.
"Working Capital" shall mean, as at any date of determination
thereof the excess of current assets of the Company and its Consolidated
Subsidiaries over current liabilities of the Company and its Consolidated
Subsidiaries. For purposes hereof, the terms "current assets" and "current
liabilities" shall have the respective meanings assigned to them by GAAP except
that (i) cash and cash equivalents shall be excluded from current assets, (ii)
the current portion of long-term debt shall be excluded from current
liabilities, (iii) the current portion of any accrual the Company's obligations
to make payments under Article II of the Barton Stock Purchase Agreement (and,
after such payments, the aggregate principal amount of the Revolving Credit
Loans as at such date the proceeds of which were used to make such payments)
shall be excluded from current liabilities and (iv) any accrual of an expected
write-off of property, plant or equipment resulting from the consolidation of
operations in connection with the Heublein Acquisition, and any reduction of
such reserve upon the sale or other disposition of such property, plant or
equipment (to the extent of any loss resulting from such sale or other
disposition), shall be excluded from current liabilities.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Banks hereunder, and all calculations made for the purpose of
determining compliance with this Agreement, shall be prepared, in accordance
with generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the audited financial statements as at August
31, 1994 referred to in Section 8.02 hereof; provided that if the Company is at
any time or from time to time required by law, regulation, Financial Accounting
Standards Board statements or its independent certified public accountants to
prepare its audited financial statements in accordance with generally accepted
accounting principles different from, or applied on a basis not consistent with,
those referred to above, then the Company shall do so, but shall also notify the
Banks of such differences, provide the Banks with a qualitative and quanti-
tative comparison of such required financial statements and corresponding
financial statements prepared as first provided above, and (unless the Majority
Banks shall otherwise agree that any such calculations shall be made in
accordance with, and on a
Credit Agreement
basis consistent with, the generally accepted accounting principles first
referred to in this proviso) continue to make all calculations made for the
purpose of determining compliance with this Agreement in accordance with, and on
a basis consistent with, those first referred to above in this clause (a) (as
modified in accordance with the preceding parenthetical expression).
(b) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9 hereof, the Company will
not, without the consent of the Majority Banks, change the last day of its
fiscal year from the last day of August of each year, or the last days of the
first three fiscal quarters in each of its fiscal years from the last days of
November, February and May of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Revolving Credit
Loan, Money Market Loan or a Term Loan, each of which constitutes a Class. The
"Type" of a Loan refers to whether such Loan is a Base Rate Loan, a Eurodollar
Loan, a Set Rate Loan or a LIBOR Market Loan, each of which constitutes a Type.
Loans may be identified by both Class and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Syndicated Loans.
(a) Revolving Credit Loans. Pursuant to Section 2.01(a) of the
Existing Credit Agreement, the Existing Banks have heretofore made "Revolving
Credit Loans" (the "Existing Revolving Credit Loans") to the Company. On the
Effective Date, immediately prior to the satisfaction by the Company of the
conditions precedent to effectiveness set forth in Section 7 hereof, Chase
shall, by purchase of assignments from any Existing Bank that will not be a
Revolving Credit Bank hereunder, acquire all of such Existing Bank's interests
in the Existing Revolving Credit Loans. Concurrently with the satisfaction of
such conditions precedent on the Effective Date, all Existing Revolving Credit
Loans outstanding on the Effective Date shall be designated as Revolving Credit
Loans hereunder and the Revolving Credit Banks shall, by assignments from Chase
and (to the extent necessary) Existing Banks that are Revolving Credit Banks
hereunder, acquire interests in the Existing Revolving Credit Loans in such
amounts (and the Banks shall make such additional adjustments as shall be
necessary) so that after giving effect to such assignments and adjustments, the
Revolving Credit Banks
Credit Agreement
shall hold Revolving Credit Loans hereunder ratably in accordance with their
respective Revolving Credit Commitments. Thereafter, each Revolving Credit Bank
severally agrees, on the terms and conditions of this Agreement, to make loans
to the Company in Dollars during the period from and including the Effective
Date to but not including the Revolving Credit Termination Date in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
of the Revolving Credit Commitment of such Bank as in effect from time to time
(such Loans being herein called "Revolving Credit Loans"); provided that in no
event shall the aggregate principal amount of all Revolving Credit Loans,
together with the aggregate amount of all Letter of Credit Liabilities in
respect of Revolving Letters of Credit, exceed the aggregate amount of the
Revolving Credit Commitments as in effect from time to time and provided further
that the Company may not borrow any Revolving Credit Loans unless simultaneously
therewith or prior thereto the Term Loan Commitments have been fully utilized.
Subject to the terms and conditions of this Agreement, during such period the
Company may borrow, repay and reborrow the amount of the Revolving Credit
Commitments by means of Base Rate Loans and Eurodollar Loans and may Convert
Revolving Credit Loans of one Type into Revolving Credit Loans of another Type
(as provided in Section 2.10 hereof) or Continue Revolving Credit Loans of one
Type as Revolving Credit Loans of the same Type (as provided in Section 2.10
hereof).
Any Existing Revolving Credit Loan that is a "Eurodollar Loan"
under the Existing Credit Agreement and that has an "Interest Period" thereunder
that will end after the Effective Date shall, on the Effective Date,
automatically be Converted into a Base Rate Loan hereunder (and, the Company
shall pay to the Existing Banks any amounts that would be payable in respect of
the principal of such Loans pursuant to Section 5.05 of the Existing Credit
Agreement as if such Loans were being prepaid on the Effective Date). In
addition, the Company will pay to the Administrative Agent for account of the
Existing Banks on the Effective Date all accrued interest on the Existing
Revolving Credit Loans that is unpaid on the Effective Date.
In connection with the purchase by Chase of assignments in the
Existing Revolving Credit Loans of any Existing Bank that will not be a
Revolving Credit Bank hereunder, the Company agrees to reimburse Chase for any
amounts in excess of the principal of and accrued and unpaid interest on the
Loans so purchased that Chase is required to pay to such Existing Bank (whether
in respect of amounts that such Bank would be entitled to receive under Section
5.05 of the Existing Credit Agreement if such Loans were being prepaid on the
Effective Date, or otherwise) in order to induce such Existing Bank to sell such
assignment to Chase,
Credit Agreement
provided that, without the consent of the Company, Chase shall not pay to such
Existing Bank an amount in excess of 100% of the principal amount of the
Existing Revolving Credit Loans of such Existing Bank being assigned.
(b) Term Loans. Pursuant to Section 2.01(b) of the Existing
Credit Agreement, the Existing Banks have heretofore made "Term Loans" (the
"Existing Term Loans") to the Company. On the Effective Date, immediately prior
to the satisfaction by the Company of the conditions precedent to effectiveness
set forth in Section 7 hereof, Chase shall, by purchase of assignments from any
Existing Bank that will not be a Term Loan Bank hereunder, acquire all of such
Existing Bank's interests in the Existing Term Loans. Concurrently with the
satisfaction of such conditions precedent on the Effective Date, all Existing
Term Loans outstanding on the Effective Date shall be designated as Term Loans
hereunder and the Term Loan Banks shall, by assignments from Chase and (to the
extent necessary) Existing Banks that are Term Loan Banks hereunder, acquire
interests in the Existing Term Loans in such amounts (and the Banks shall make
such additional adjustments as shall be necessary) so that after giving effect
to such assignments and adjustments, the Term Loan Banks shall hold Term Loans
hereunder ratably in accordance with their respective Term Loan Commitments. In
addition, each Term Loan Bank severally agrees, on the terms and conditions of
this Agreement, to make one or more term loans to the Company in Dollars on the
Effective Date in an aggregate amount up to but not exceeding the remaining
unused amount of the Term Loan Commitment of such Bank. Thereafter the Company
may Convert Term Loans of one Type into Term Loans of another Type (as provided
in Section 2.11 hereof) or Continue Term Loans of one Type as Term Loans of the
same Type (as provided in Section 2.11 hereof).
Any Existing Term Loan that is a "Eurodollar Loan" under the
Existing Credit Agreement and that has an "Interest Period" thereunder that will
end after the Effective Date shall, on the Effective Date, automatically be
Converted into a Base Rate Loan hereunder (and, the Company shall pay to the
Existing Banks any amounts that would be payable in respect of the principal of
such Loans pursuant to Section 5.05 of the Existing Credit Agreement as if such
Loans were being prepaid on the Effective Date). In addition, the Company will
pay to the Administrative Agent for account of the Existing Banks on the
Effective Date all accrued interest on the Existing Term Loans that is unpaid on
the Effective Date.
In connection with the purchase by Chase of assignments in the
Existing Term Loans of any Existing Bank that will not be a Term Loan Bank
hereunder, the Company agrees to reimburse Chase
Credit Agreement
for any amounts in excess of the principal of and accrued and unpaid interest on
the Loans so purchased that Chase is required to pay to such Existing Bank
(whether in respect of amounts that such Bank would be entitled to receive under
Section 5.05 of the Existing Credit Agreement if such Loans were being prepaid
on the Effective Date, or otherwise) in order to induce such Existing Bank to
sell such assignment to Chase, provided that, without the consent of the
Company, Chase shall not pay to such Existing Bank an amount in excess of 100%
of the principal amount of the Existing Term Loans of such Existing Bank being
assigned.
(c) Swingline Loans. In addition to the Revolving Credit Loans
provided for in clause (a) of this Section 2.01, but subject to the provisions
of this Section 2.01(c), the Swingline Bank, in its sole and absolute
discretion, may from time to time on any Business Day make loans to the Company
during the period from and including the Effective Date to but excluding the
Revolving Credit Termination Date in an aggregate principal amount outstanding
at any one time not to exceed $8,000,000. Loans made pursuant to this Section
2.01(c) are herein called "Swingline Loans". The following additional provisions
shall apply to Swingline Loans:
(i) Swingline Loans shall constitute "Revolving Credit
Loans" hereunder (except for purposes of Section 2.01(a) hereof), but
shall not be considered a utilization of the Revolving Credit
Commitment of the Swingline Bank hereunder and thus shall not affect
the Company's obligation under Section 2.07 hereof to pay to the
Administrative Agent for account of each Revolving Credit Bank the
commitment fee on the daily average unused amount of each Revolving
Credit Bank's Revolving Credit Commitment hereunder. Subject to the
Swingline Bank's determination, in its discretion, from time to time to
make Swingline Loans, the Company may, from time to time during the
period from and including the Effective Date to but excluding the
Revolving Credit Termination Date, borrow, repay and reborrow the
Swingline Loans, provided that the aggregate principal amount
outstanding at any time of all Revolving Credit Loans (including all
Swingline Loans) shall not exceed the aggregate amount of the Revolving
Credit Commitments at such time. The Company may prepay the outstanding
Swingline Loans from time to time upon giving same day notice thereof
to the Swingline Bank. Each borrowing and each partial prepayment of
the Swingline Loans shall be made in a principal amount at least equal
to $500,000.
(ii) The Swingline Loans shall be Base Rate Loans and,
notwithstanding anything in Section 2.11 hereof to the
Credit Agreement
contrary, may not be made as or Converted into Eurodollar
Loans.
(iii) The provisions of Sections 2.02, 2.11, 4.04 and
4.05 hereof shall not apply to the Swingline Loans.
(d) Certain Limits on Eurodollar Loans. Until the earlier to
occur of (x) the date 90 days after the Effective Date and (y) the date when the
Commitments hereunder are fully syndicated by Chase, all Eurodollar Loans shall
be available hereunder only for Interest Periods of 30 days and each such
Interest Period for any such Loans shall be coterminous with Interest Periods
for all other Eurodollar Loans. In addition, no more than fourteen separate
Interest Periods in respect of Money Market Loans and Eurodollar Loans that are
Revolving Credit Loans and no more than three separate Interest Periods in
respect of Eurodollar Loans that are Term Loans may be outstanding at any one
time.
2.02 Borrowings of Syndicated Loans. The Company shall give
the Administrative Agent (which shall promptly notify the Banks) notice of each
borrowing hereunder of Syndicated Loans as provided in Section 4.05 hereof. Not
later than 1:00 p.m. New York time on the date specified for each such borrowing
hereunder, each Bank shall make available the amount of any such Loan or Loans
to be made by it on such date to the Administrative Agent, at account number
NYAO-DI-900-9-000002 maintained by the Administrative Agent with Chase at the
Principal Office, in immediately available funds, for account of the Company.
The amount so received by the Administrative Agent shall, subject to the terms
and conditions of this Agreement, be made available to the Company by depositing
the same, in immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the Company. As
provided in Section 2.01(c)(iii) hereof, the provisions of this Section 2.02
shall not apply to Swingline Loans.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans, at any time
prior to the Revolving Credit Commitment Termination Date the Company may, as
set forth in this Section 2.03, request the Revolving Credit Banks to make
offers to make Money Market Loans to the Company in Dollars. The Revolving
Credit Banks may, but shall have no obligation to, make such offers and the
Company may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.03. Money Market Loans may be LIBOR Market
Loans or Set Rate Loans, provided that:
Credit Agreement
(i) there may be no more than fourteen different
Interest Periods for both Syndicated Loans and Money Market Loans that
are Revolving Credit Loans outstanding at the same time (for which
purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous);
(ii) the aggregate principal amount of all Money Market
Loans, together with the aggregate principal amount of all Revolving
Credit Loans (including all Swingline Loans), and the aggregate amount
of all Letter of Credit Liabilities in respect of Revolving Letters of
Credit, at any one time outstanding shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time; and
(iii) the aggregate principal amount of all Money Market
Loans at any one time outstanding shall not exceed the aggregate amount
of the Revolving Credit Commitments at such time.
(b) When the Company wishes to request offers to make Money
Market Loans, it shall give the Administrative Agent notice (a "Money Market
Quote Request"), and the Administrative Agent shall promptly notify the
Revolving Credit Banks, so as to be received no later than 11:00 a.m. New York
time on (x) the fourth Business Day prior to the date of borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Business Day next preceding
the date of borrowing proposed therein, in the case of a Set Rate Auction (or,
in any such case, such other time and date as the Company and the Administrative
Agent, with the consent of the Majority Revolving Credit Banks, may agree). The
Company may request offers to make Money Market Loans for up to three different
Interest Periods in a single notice (for which purpose Interest Periods in
different lettered clauses of the definition of the term "Interest Period" shall
be deemed to be different Interest Periods even if they are coterminous);
provided that the request for each separate Interest Period shall be deemed to
be a separate Money Market Quote Request for a separate borrowing (a "Money
Market Borrowing"). Each such notice shall be substantially in the form of
Exhibit H hereto and shall specify as to each Money Market Borrowing:
(i) the proposed date of such borrowing, which
shall be a Business Day;
(ii) the aggregate amount of such Money Market
Borrowing, which shall be at least $10,000,000 (or a larger
Credit Agreement
multiple of $5,000,000) but shall not cause the limits
specified in Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are seeking quotes for LIBOR Market Loans or
Set Rate Loans; and
(v) if the Money Market Quotes requested are seeking
quotes for Set Rate Loans, the date on which the Money Market Quotes
are to be submitted if it is before the proposed date of borrowing (the
date on which such Money Market Quotes are to be submitted is called
the "Quotation Date").
Except as otherwise provided in this Section 2.03(b), no Money Market Quote
Request shall be given within five Business Days (or such other number of days
as the Company and the Administrative Agent, with the consent of the Majority
Revolving Credit Banks, may agree) of any other Money Market Quote Request.
(c) (i) Each Revolving Credit Bank may submit one or more
Money Market Quotes, each constituting an offer to make a Money Market
Loan in response to any Money Market Quote Request; provided that, if
the Company's request under Section 2.03(b) hereof specified more than
one Interest Period, such Bank may make a single submission containing
one or more Money Market Quotes for each such Interest Period. Each
Money Market Quote must be submitted to the Administrative Agent not
later than (x) 2:00 p.m. New York time on the fourth Business Day prior
to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) 10:00 a.m. New York time on the Quotation Date, in the case of a
Set Rate Auction (or, in any such case, such other time and date as the
Company and the Administrative Agent, with the consent of the Majority
Revolving Credit Banks, may agree); provided, further, that any Money
Market Quote may be submitted by Chase (or its Applicable Lending
Office) only if Chase (or such Applicable Lending Office) notifies the
Company of the terms of the offer contained therein not later than (x)
1:00 p.m. New York time on the fourth Business Day prior to the
proposed date of borrowing, in the case of a LIBOR Auction or (y) 9:45
a.m. New York time on the Quotation Date, in the case of a Set Rate
Auction. Subject to Sections 5.02(b), 5.03, 7.02 and 10 hereof, any
Money Market Quote so made shall be irrevocable except with
Credit Agreement
the consent of the Administrative Agent given on the
instructions of the Company.
(ii) Each Money Market Quote shall be substantially in the
form of Exhibit I hereto and shall specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount
shall be at least $5,000,000 (or a larger multiple of
$1,000,000); provided that the aggregate principal amount of
all Money Market Loans for which a Revolving Credit Bank
submits Money Market Quotes (x) may be greater or less than
the Revolving Credit Commitment of such Bank but (y) may not
exceed the principal amount of the Money Market Borrowing for
a particular Interest Period for which offers were requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "LIBO Margin") offered
for each such Money Market Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest 1/10,000th of
1%) to be added to or subtracted from the applicable LIBO
Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the
nearest 1/10,000th of 1%) offered for each such Money Market
Loan (the "Set Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Company, no
Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Money Market Quote Request and, in particular, no
Money Market Quote may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of the Money
Market Loan for which such Money Market Quote is being made, provided
that the submission by any Revolving Credit Bank containing more than
one Money Market Quote may be conditioned on the Company not accepting
offers contained in such submission that would result in such Bank
making Money Market Loans pursuant thereto in excess of a specified
aggregate amount (the "Money Market Loan Limit").
Credit Agreement
(d) The Administrative Agent shall (x) in the case of a Set
Rate Auction, as promptly as practicable after the Money Market Quote is
submitted (but in any event not later than 10:15 a.m. New York time on the
Quotation Date) or (y) in the case of a LIBOR Auction, by 4:00 p.m. New York
time on the day a Money Market Quote is submitted, notify the Company of the
terms (i) of any Money Market Quote submitted by a Revolving Credit Bank that is
in accordance with Section 2.03(c) hereof and (ii) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Company shall specify (A) the aggregate
principal amount of the Money Market Borrowing for which offers have been
received and (B) the respective principal amounts and LIBO Margins or Set Rates,
as the case may be, so offered by each Revolving Credit Bank (identifying the
Bank that made each Money Market Quote).
(e) Not later than 11:00 a.m. New York time on (x) the third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) the Quotation Date, in the case of a Set Rate Auction (or, in any
such case, such other time and date as the Company and the Administrative Agent,
with the consent of the Majority Revolving Credit Banks, may agree), the Company
shall notify the Administrative Agent of its acceptance or nonacceptance of the
offers so notified to it pursuant to Section 2.03(d) hereof (which notice shall
specify the aggregate principal amount of offers from each Revolving Credit Bank
for each Interest Period that are accepted, it being understood that the failure
of the Company to give such notice by such time shall constitute nonacceptance)
and the Administrative Agent shall promptly notify each affected Bank. The
notice from the Administrative Agent shall also specify the aggregate principal
amount of offers for each Interest Period that were accepted and the lowest and
highest LIBO Margins and Set Rates that were accepted for each Interest Period.
The Company may accept any Money Market Quote in whole or in part (provided that
any Money Market Quote accepted in part shall be at least $5,000,000 or a larger
multiple of $1,000,000); provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
Credit Agreement
(ii) the aggregate principal amount of each Money Market
Borrowing shall be at least $10,000,000 (or a larger multiple of
$5,000,000) but shall not cause the limits specified in Section 2.03(a)
hereof to be violated;
(iii) acceptance of offers may, subject to clause (v) below,
be made only in ascending order of LIBO Margins or Set Rates, as the
case may be, in each case beginning with the lowest rate so offered;
(iv) the Company may not accept any offer where the
Administrative Agent has advised the Company that such offer fails to
comply with Section 2.03(c)(ii) hereof or otherwise fails to comply
with the requirements of this Agreement (including, without limitation,
Section 2.03(a) hereof);
(v) the aggregate principal amount of each Money Market
Borrowing from any Revolving Credit Bank may not exceed any applicable
Money Market Loan Limit of such Bank.
If offers are made by two or more Revolving Credit Banks with the same LIBO
Margins or Set Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Money Market Loans in respect of which
such offers are accepted shall be allocated by the Company among such Banks as
nearly as possible (in amounts of at least $5,000,000 or larger multiples of
$1,000,000) in proportion to the aggregate principal amount of such offers.
Determinations by the Company of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
(f) Any Revolving Credit Bank whose offer to make any Money
Market Loan has been accepted in accordance with the terms and conditions of
this Section 2.03 shall, not later than 1:00 p.m. New York time on the date
specified for the making of such Loan, make the amount of such Loan available to
the Administrative Agent at account number NYAO-DI-900-9-000002 maintained by
the Administrative Agent with Chase at the Principal Office in immediately
available funds, for account of the Company. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company on such date by depositing the same,
in immediately available funds, in an account of the Company maintained with
Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly
stated in Sections 2.06(b) and 2.07 hereof, the amount of any
Credit Agreement
Money Market Loan made by any Bank shall not constitute a utilization of such
Bank's Revolving Credit Commitment.
(h) The Company shall pay to the Administrative Agent a fee of
$2,500 each time the Company gives a Money Market Quote Request to the
Administrative Agent.
2.04 Barton Letter of Credit. Pursuant to Section 2.03 of the
Existing Credit Agreement, the Barton Letter of Credit, issued by Chase as
Issuing Bank for account of the Company is outstanding on the date hereof. The
following provisions shall apply to the Barton Letter of Credit:
(a) On the Effective Date, the Barton Letter of Credit shall
automatically, and without any action on the part of any Person, be
deemed to constitute the Barton Letter of Credit hereunder. On the
Effective Date, immediately prior to the satisfaction by the Company of
the conditions precedent to effectiveness set forth in Section 7
hereof, (i) Chase shall, by assignment from any Existing Bank that will
not be a Barton Letter of Credit Bank hereunder, acquire all of such
Existing Bank's interest in the Barton Letter of Credit Interest (as
defined in the Existing Credit Agreement) as of the Effective Date (the
"Existing Barton Letter of Credit Interest") and (ii) the Company shall
pay to the Administrative Agent for the account of the Existing Banks
(after giving effect to such assignments) all letter of credit fees
accrued through the Effective Date in respect of the Existing Barton
Letter of Credit Interests. Each Barton Letter of Credit Bank (other
than the Issuing Bank) agrees that, on the Effective Date, it shall
automatically acquire (and, in the case of any Existing Bank that is a
Barton Letter of Credit Bank, it shall automatically continue) a
participation in the Issuing Bank's liability under the Barton Letter
of Credit in an amount equal to such Bank's Proportionate Share of such
liability, and each Barton Letter of Credit Bank (other than the
Issuing Bank) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Bank to pay and discharge when
due, its Proportionate Share of the Issuing Bank's liability under the
Barton Letter of Credit.
(b) Upon receipt from the beneficiary of the Barton Letter of
Credit of any demand for payment under the Barton Letter of Credit,
which demand substantially complies with the terms and conditions
thereof, the Issuing Bank shall promptly notify the Company (through
the Administrative Agent) of the amount to be paid by the Issuing Bank
as a
Credit Agreement
result of such demand and the date on which payment is to be made by
the Issuing Bank to such beneficiary in respect of such demand. The
Company hereby unconditionally agrees to pay and reimburse the
Administrative Agent for account of the Issuing Bank for the amount of
each such demand for payment under the Barton Letter of Credit at or
prior to the date on which payment is to be made by the Issuing Bank to
the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.
(c) Forthwith upon its receipt of a notice referred to in
clause (b) of this Section 2.04, the Company shall advise the
Administrative Agent whether or not the Company intends to borrow
hereunder to finance its obligation to reimburse the Issuing Bank for
the amount of the related demand for payment.
(d) Upon receipt from the beneficiary of the Barton Letter of
Credit of any demand for payment under the Barton Letter of Credit,
which demand substantially complies with the terms and conditions
thereof, the Administrative Agent shall give each Barton Letter of
Credit Bank prompt notice of the amount of the demand for payment,
specifying such Bank's Proportionate Share of the amount of the related
demand for payment and the date upon which such payment is to be made.
Each Barton Letter of Credit Bank (other than the Issuing Bank) shall
pay to the Administrative Agent for account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds, the
amount of such Bank's Proportionate Share of any payment under the
Barton Letter of Credit on the date of payment under the Barton Letter
of Credit specified in such notice. Each such Barton Letter of Credit
Bank's obligation to make such payment to the Administrative Agent for
account of the Issuing Bank under this clause (d), and the Issuing
Bank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever, including,
without limitation, (i) the failure of any other Barton Letter of
Credit Bank to make its payment under this clause (d), the financial
condition of the Company, the existence of any Default or (ii) the
termination of any of the Commitments. Each such payment to the Issuing
Bank shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Upon the making of each payment by a Barton Letter of
Credit Bank to the Issuing Bank pursuant to clause (d) above in respect
of the Barton Letter of Credit, such Bank shall, automatically and
without any further action on the
Credit Agreement
part of the Administrative Agent, the Issuing Bank or such Bank,
acquire (i) a participation in an amount equal to such payment in the
related Reimbursement Obligation owing to the Issuing Bank by the
Company hereunder and (ii) a participation in a percentage equal to
such Bank's Proportionate Share in any interest or other amounts
payable by the Company hereunder in respect of such Reimbursement
Obligation (other than the commissions, charges, costs and expenses
payable to the Issuing Bank pursuant to clause (f) of this Section
2.04). Upon receipt by the Issuing Bank from or for account of the
Company of any payment in respect of such Reimbursement Obligation or
any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the Issuing Bank
shall promptly pay to the Administrative Agent for account of each
Barton Letter of Credit Bank entitled thereto, such Barton Letter of
Credit Bank's Proportionate Share of such payment, each such payment by
the Issuing Bank to be made in the same money and funds in which
received by the Issuing Bank. In the event any payment received by the
Issuing Bank and so paid to the Barton Letter of Credit Banks hereunder
is rescinded or must otherwise be returned by the Issuing Bank, each
Barton Letter of Credit Bank shall, upon the request of the Issuing
Bank (through the Administrative Agent), repay to the Issuing Bank
(through the Administrative Agent) the amount of such payment paid to
such Bank, with interest at the rate specified in clause (g) of this
Section 2.04.
(f) The Company shall pay to the Administrative Agent for
account of the Issuing Bank in respect of the Barton Letter of Credit
an issuance fee in an amount equal to the Letter of Credit Fee
Percentage of the daily average undrawn face amount of the Barton
Letter of Credit for the period from and including the date of issuance
of the Barton Letter of Credit to and including the date the Barton
Letter of Credit is drawn in full, expires or is terminated (such fee
to be non-refundable, to be paid in arrears on each Quarterly Date and
on the Barton Letter of Credit Termination Date and to be calculated,
for any day, after giving effect to any payments made under the Barton
Letter of Credit on such day). The Issuing Bank shall pay to the
Administrative Agent for account of each Barton Letter of Credit Bank
(other than the Issuing Bank), from time to time at reasonable
intervals (but in any event at least quarterly), but only to the extent
actually received from the Company, an amount equal to such Bank's
Proportionate Share of all such fees in respect of the Barton Letter of
Credit (including any such fee in respect of any period of any renewal
or extension thereof).
Credit Agreement
In addition, the Company shall pay to the Administrative Agent
solely for account of the Issuing Bank a fronting fee in respect of the
Barton Letter of Credit in an amount equal to 1/8 of 1% per annum of
the daily average undrawn face amount of the Barton Letter of Credit
for the period from and including the date of issuance of the Barton
Letter of Credit to and including the date the Barton Letter of Credit
is drawn in full, expires or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date and on the
Barton Letter of Credit Termination Date and to be calculated, for any
day, after giving effect to any payments made under the Barton Letter
of Credit on such day) plus all commissions, charges, costs and
expenses in the amounts customarily charged by the Issuing Bank from
time to time in like circumstances with respect to the issuance of the
Barton Letter of Credit and drawings and other transactions relating
thereto.
(g) To the extent that any Barton Letter of Credit Bank fails
to pay any amount required to be paid pursuant to clause (d) or (e) of
this Section 2.04 on the due date therefor, such Bank shall pay
interest to the Issuing Bank (through the Administrative Agent) on such
amount from and including such due date to but excluding the date such
payment is made at a rate per annum equal to the Federal Funds Rate (as
in effect from time to time), provided that if such payment is not made
within three Business Days of such due date then, such Barton Letter of
Credit Bank shall be obligated retroactively to the due date to pay
interest in respect of such payment at the rate of interest provided
for Base Rate Loans pursuant to Section 3.02 hereof.
(h) The issuance by the Issuing Bank of any modification or
supplement to the Barton Letter of Credit hereunder shall be subject to
the same conditions applicable under this Section 2.04 to the issuance
of the Barton Letter of Credit, and no such modification or supplement
shall be issued hereunder unless each Barton Letter of Credit Bank
shall have consented thereto.
The Company hereby indemnifies and holds harmless each Barton Letter of Credit
Bank and the Administrative Agent from and against any and all claims and
damages (including, without limitation, consequential damages), losses,
liabilities, costs or expenses which such Bank or the Administrative Agent may
incur (or which may be claimed against such Bank or the Administrative Agent by
any Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing Bank under
the Barton Letter of
Credit Agreement
Credit; provided that the Company shall not be required to indemnify any Bank or
the Administrative Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the Issuing Bank in determining whether a
request presented under the Barton Letter of Credit complied with the terms of
the Barton Letter of Credit or (y) in the case of the Issuing Bank, such Bank's
failure to pay under the Barton Letter of Credit after the presentation to it of
a request strictly complying with the terms and conditions of the Barton Letter
of Credit. Nothing in this Section 2.04 is intended to limit the other
obligations of the Company, any Bank or the Administrative Agent under this
Agreement. Notwithstanding anything to the contrary contained herein, the
Issuing Bank shall not be liable for consequential damages.
2.05 Revolving Letters of Credit. Subject to the terms and
conditions of this Agreement, the Revolving Credit Commitments may be utilized,
upon the request of the Company, in addition to the Revolving Credit Loans
provided for by Section 2.01(a) hereof, by the issuance by the Issuing Bank of
commercial, documentary or standby letters of credit (collectively with the
Qingdao Letter of Credit and the Existing Letters of Credit, "Revolving Letters
of Credit") for account of the Company or any of its Subsidiaries (as specified
by the Company), provided that in no event shall (i) the aggregate amount of all
Letter of Credit Liabilities in respect of Revolving Letters of Credit, together
with the aggregate principal amount of the Revolving Credit Loans and the
aggregate principal amount of Money Market Loans, exceed the aggregate amount of
the Revolving Credit Commitments as in effect from time to time, (ii) the
outstanding aggregate amount of all Letter of Credit Liabilities in respect of
Revolving Letters of Credit exceed $12,000,000, and (iii) the expiration date of
any Revolving Letter of Credit extend beyond the earlier of the Revolving Credit
Termination Date and the date twelve months following the issuance of such
Revolving Letter of Credit. The following additional provisions shall apply to
Letters of Credit:
(a) The Company shall give the Administrative Agent at least
three Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 30 days
preceding the Revolving Credit Termination Date) each Revolving Letter
of Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Revolving
Letter of Credit (including the beneficiary thereof) and the nature of
the transactions or obligations proposed to be supported thereby. Upon
receipt of any such
Credit Agreement
notice, the Administrative Agent shall advise the Issuing
Bank of the contents thereof.
(b) On each day during the period commencing with the issuance
(or, in the case of the Existing Letters of Credit and the Qingdao
Letter of Credit, commencing on the Effective Date) by the Issuing Bank
of any Revolving Letter of Credit and until such Revolving Letter of
Credit shall have expired or been terminated, the Revolving Credit
Commitment of each Revolving Credit Bank shall be deemed to be utilized
for all purposes of this Agreement in an amount equal to such Bank's
Revolving Credit Commitment Percentage of the then undrawn face amount
of such Revolving Letter of Credit. Each Revolving Credit Bank (other
than the Issuing Bank) agrees that, upon the issuance of any Revolving
Letter of Credit hereunder (or, in the case of the Existing Letters of
Credit and the Qingdao Letter of Credit, upon the Effective Date), it
shall automatically acquire a participation in the Issuing Bank's
liability under such Revolving Letter of Credit in an amount equal to
such Bank's Revolving Credit Commitment Percentage of such liability,
and each Revolving Credit Bank (other than the Issuing Bank) thereby
shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to
the Issuing Bank to pay and discharge when due, its Revolving Credit
Commitment Percentage of the Issuing Bank's liability under such
Revolving Letter of Credit.
(c) Upon receipt from the beneficiary of any Revolving Letter
of Credit of any demand for payment under such Revolving Letter of
Credit, which demand substantially complies with the terms and
conditions thereof, the Issuing Bank shall promptly notify the Company
(through the Administrative Agent) of the amount to be paid by the
Issuing Bank as a result of such demand and the date on which payment
is to be made by the Issuing Bank to such beneficiary in respect of
such demand. Notwithstanding the identity of the account party of any
Revolving Letter of Credit, the Company hereby unconditionally agrees
to pay and reimburse the Administrative Agent for account of the
Issuing Bank for the amount of each such demand for payment under such
Revolving Letter of Credit at or prior to the date on which payment is
to be made by the Issuing Bank to the beneficiary thereunder, without
presentment, demand, protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to
in clause (c) of this Section 2.05, the Company shall advise
Credit Agreement
the Administrative Agent whether or not the Company intends to borrow
hereunder to finance its obligation to reimburse the Issuing Bank for
the amount of the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05 hereof.
(e) Each Revolving Credit Bank (other than the Issuing Bank)
shall pay to the Administrative Agent for account of the Issuing Bank
at the Principal Office in Dollars and in immediately available funds,
the amount of such Bank's Revolving Credit Commitment Percentage of any
payment under a Revolving Letter of Credit upon notice by the Issuing
Bank (through the Administrative Agent) to such Revolving Credit Bank
requesting such payment and specifying such amount. Each such Revolving
Credit Bank's obligation to make such payment to the Administrative
Agent for account of the Issuing Bank under this clause (e), and the
Issuing Bank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Revolving
Credit Bank to make its payment under this clause (e), the financial
condition of the Company (or any other account party), the existence of
any Default or the termination of the Commitments. Each such payment to
the Issuing Bank shall be made without any offset, abatement,
withholding or reduction whatsoever.
(f) Upon the making of each payment by a Revolving Credit Bank
to the Issuing Bank pursuant to clause (e) above in respect of any
Revolving Letter of Credit, such Bank shall, automatically and without
any further action on the part of the Administrative Agent, the Issuing
Bank or such Bank, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation in respect of such
Revolving Letter of Credit owing to the Issuing Bank by the Company
hereunder and under the Revolving Letter of Credit Documents relating
to such Revolving Letter of Credit and (ii) a participation in a
percentage equal to such Bank's Revolving Credit Commitment Percentage
in any interest or other amounts payable by the Company hereunder and
under such Revolving Letter of Credit Documents in respect of such
Reimbursement Obligation (other than the commissions, charges, costs
and expenses payable to the Issuing Bank pursuant to clause (g) of this
Section 2.05). Upon receipt by the Issuing Bank from or for account of
the Company of any payment in respect of any such Reimbursement
Obligation or any such interest or other amount (including by way of
setoff or application of proceeds of any collateral security) the
Issuing Bank shall promptly pay to the
Credit Agreement
Administrative Agent for account of each Revolving Credit Bank entitled
thereto, such Revolving Credit Bank's Revolving Credit Commitment
Percentage of such payment, each such payment by the Issuing Bank to be
made in the same money and funds in which received by the Issuing Bank.
In the event any payment received by the Issuing Bank and so paid to
the Revolving Credit Banks hereunder is rescinded or must otherwise be
returned by the Issuing Bank, each Revolving Credit Bank shall, upon
the request of the Issuing Bank (through the Administrative Agent),
repay to the Issuing Bank (through the Administrative Agent) the amount
of such payment paid to such Bank, with interest at the rate specified
in clause (j) of this Section 2.05.
(g) The Company shall pay to the Administrative Agent for
account of the Issuing Bank in respect of each Revolving Letter of
Credit that is a standby letter of credit an issuance fee in an amount
equal to the Letter of Credit Fee Percentage of the daily average
undrawn face amount of such Revolving Letter of Credit for the period
from and including the date of issuance of such Revolving Letter of
Credit (i) in the case of a Revolving Letter of Credit that expires in
accordance with its terms, to and including such expiration date and
(ii) in the case of a Revolving Letter of Credit that is drawn in full
or is otherwise terminated other than on the stated expiration date of
such Revolving Letter of Credit, to but excluding the date of such
Revolving Letter of Credit is drawn in full or is terminated (such fee
to be non-refundable and to be paid in arrears on each Quarterly Date
and on the Revolving Credit Termination Date). The Company shall pay to
the Administrative Agent for account of the Issuing Bank in respect of
each Revolving Letter of Credit that is a commercial or documentary
letter of credit an issuance fee in an amount equal to 1/2 of 1% per
annum of the initial face amount of such Letter of Credit for the
period from and including the date of issuance of such Revolving Letter
of Credit to and including the expiration date (such fee to be
non-refundable and to be paid in arrears on each Quarterly Date and on
the Revolving Credit Termination Date). The Issuing Bank shall pay to
the Administrative Agent for account of each revolving Credit Bank
(other than the Issuing Bank), from time to time at reasonable
intervals (but in any event at least quarterly), but only to the extent
actually received from the Company, an amount equal to such Bank's
Revolving Credit Commitment Percentage of all such fees in respect of
each Revolving Letter of Credit (including any such fee in respect of
any period of any renewal or extension thereof).
Credit Agreement
In addition, the Company shall pay to the Administrative Agent
for account of the Issuing Bank a fronting fee in respect of each
Letter of Credit (other than the Qingdao Letter of Credit) in an amount
equal to 1/8 of 1% per annum of the daily average undrawn face amount
of such Revolving Letter of Credit for the period from and including
the date of issuance of such Revolving Letter of Credit (i) in the case
of a Revolving Letter of Credit that expires in accordance with its
terms, to and including such expiration date and (ii) in the case of a
Revolving Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Revolving
Letter of Credit, to but excluding the date such Revolving Letter of
Credit is drawn in full or is terminated (such fee to be non-refundable
and to be paid in arrears on each Quarterly Date and on the Revolving
Credit Termination Date) plus all commissions, charges (including
negotiation fees), costs and expenses in the amounts customarily
charged by the Issuing Bank from time to time in like circumstances
with respect to the issuance of each Revolving Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the
Issuing Bank shall deliver (through the Administrative Agent) to each
Revolving Credit Bank and the Company a notice describing the aggregate
amount of all Revolving Letters of Credit outstanding at the end of
such month. Upon the request of any Revolving Credit Bank from time to
time, the Issuing Bank shall deliver any other information reasonably
requested by such Bank with respect to each Revolving Letter of Credit
then outstanding.
(i) The issuance by the Issuing Bank of each Revolving Letter
of Credit shall, in addition to the conditions precedent set forth in
Section 7 hereof, be subject to the conditions precedent that (i) such
Revolving Letter of Credit shall be in such form, contain such terms
and support such transactions as shall be satisfactory to the Issuing
Bank consistent with its then current practices and procedures with
respect to letters of credit of the same type and (ii) the Company
shall have executed and delivered such applications, agreements and
other instruments relating to such Revolving Letter of Credit as the
Issuing Bank shall have reasonably requested consistent with its then
current practices and procedures with respect to letters of credit of
the same type, provided that in the event of any conflict between any
such application, agreement or other instrument and the provisions of
this Agreement or any Security Document,
Credit Agreement
the provisions of this Agreement and the Security
Documents shall control.
(j) To the extent that any Bank shall fail to pay any amount
required to be paid pursuant to clause (e) or (f) of this Section 2.05
on the due date therefor, such Bank shall pay interest to the Issuing
Bank (through the Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made
at a rate per annum equal to the Federal Funds Rate (as in effect from
time to time), provided that if such Bank shall fail to make such
payment to the Issuing Bank within three Business Days of such due
date, then, retroactively to the due date, such Bank shall be obligated
to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Revolving Letter of Credit hereunder shall be
subject to the same conditions applicable under this Section 2.05 to
the issuance of new Revolving Letters of Credit, and no such
modification or supplement shall be issued hereunder unless either (i)
the respective Revolving Letter of Credit affected thereby would have
complied with such conditions had it originally been issued hereunder
in such modified or supplemented form or (ii) each Revolving Credit
Bank shall have consented thereto. Upon any modification or renewal or
reissuance by the Issuing Bank of the Qingdao Letter of Credit, such
Issuing Bank shall forthwith notify the Administrative Agent and the
Company of the new Qingdao Letter of Credit Limit for purposes of this
Agreement.
(l) Anything herein to the contrary notwithstanding, the
amount of the Qingdao Letter of Credit for all purposes of this
Agreement and the other Basic Documents (including, without limitation,
the usage of the Revolving Credit Commitments hereunder, the
calculation of fee under clause (g) above and the obligation of the
Revolving Credit Banks to participate in Reimbursement Obligations
arising upon drawings thereunder) shall be deemed to be equal to the
Qingdao Letter of Credit Limit and any Letter of Credit Liability
arising in respect of the Qingdao Letter of Credit in excess of the
Qingdao Letter of Credit Limit shall be solely for the account of the
Issuing Bank, and no other Bank shall be obligated to participate in
such excess amount, nor shall such excess amount be entitled to the
benefits of the Security Documents.
Credit Agreement
(m) Pursuant to Section 2.04 of the Existing Credit Agreement,
Chase, as an Issuing Bank, has issued various "Revolving Letters of
Credit" under and as defined in the Existing Credit Agreement
(collectively, the "Existing Letters of Credit"). On the Effective
Date, the Existing Letters of Credit and the Qingdao Letter of Credit
shall automatically, and without any action on the part of any Person,
become Revolving Letters of Credit hereunder. On the Effective Date,
immediately prior to the satisfaction by the Company of the conditions
precedent to effectiveness set forth in Section 7 hereof, (i) Chase
shall, by assignment from any Existing Bank that will not be a
Revolving Credit Bank hereunder, acquire all of such Existing Bank's
interest in the Letter of Credit Liabilities (as defined in the
Existing Credit Agreement) as of the Effective Date in respect of the
Existing Letters of Credit and the Qingdao Letter of Credit (the
"Existing Letter of Credit Liabilities") and (ii) the Company shall pay
to the Administrative Agent for the account of the Existing Banks
(after giving effect to such assignments) all letter of credit fees
accrued through the Effective Date in respect of the Existing Letters
of Credit and the Qingdao Letter of Credit. Each Revolving Credit Bank
(other than the Issuing Bank) agrees that, on the Effective Date, it
shall acquire (and, in the case of any Existing Bank that is a
Revolving Credit Bank, it shall automatically continue) interests in
the Existing Letter of Credit Liabilities in such amounts so that the
Revolving Credit Banks shall hold Existing Letter of Credit Liabilities
ratably in accordance with their respective Revolving Credit
Commitments.
The Company hereby indemnifies and holds harmless each Revolving Credit Bank and
the Administrative Agent from and against any and all claims and damages,
losses, liabilities (including, without limitation, consequential damages),
costs or expenses that such Bank or the Administrative Agent may incur (or which
may be claimed against such Bank or the Administrative Agent by any Person
whatsoever) by reason of or in connection with the execution and delivery or
transfer of or payment or refusal to pay by the Issuing Bank under any Revolving
Letter of Credit; provided that the Company shall not be required to indemnify
any Bank or the Administrative Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(x) the willful misconduct or gross negligence of the Issuing Bank in
determining whether a request presented under any Revolving Letter of Credit
complied with the terms of such Revolving Letter of Credit or (y) in the case of
the Issuing Bank, such Bank's failure to pay under any Revolving Letter of
Credit after the presentation to it of a request strictly
Credit Agreement
complying with the terms and conditions of such Revolving Letter of Credit.
Nothing in this Section 2.05 is intended to limit the other obligations of the
Company, any Bank or the Administrative Agent under this Agreement.
Notwithstanding anything to the contrary contained herein, the Issuing Bank
shall not be liable for consequential damages.
2.06 Changes of Commitments.
(a) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced to zero on the Revolving Credit Termination Date.
(b) The Company shall have the right at any time or from time
to time (i) so long as no Revolving Credit Loans, Money Market Loans or Letter
of Credit Liabilities in respect of Revolving Letters of Credit are outstanding,
to terminate the Revolving Credit Commitments, (ii) to reduce the aggregate
unused amount of the Revolving Credit Commitments (for which purpose use of the
Revolving Credit Commitments shall be deemed to include the aggregate amount of
Letter of Credit Liabilities in respect of Revolving Letters of Credit and the
aggregate principal amount of all Money Market Loans), (iii) to terminate the
Term Loan Commitments (but only if simultaneously therewith or prior thereto the
Barton Letter of Credit Commitments and the Revolving Credit Commitments are
being or have been terminated in full) and (iv) so long as the Barton Letter of
Credit is no longer outstanding, to terminate the Barton Letter of Credit
Commitments; provided that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.05 hereof and (y) each partial
reduction shall be in an aggregate amount at least equal to $1,000,000 or in
multiples of $500,000 in excess thereof.
(c) The aggregate amount of the Term Loan Commitments shall be
automatically reduced to zero on the Term Loan Commitment Termination Date.
(d) The Company will from time to time take such action on its
part, and will use reasonable efforts to cause the Seller Representatives (as
defined in the Stock Purchase Agreement) from time to time to take such action
on their part, as shall be necessary to cause the beneficiary under the Barton
Letter of Credit to instruct that the face amount of the Barton Letter of Credit
be reduced on the dates and in the amounts specified in Section 2.12(a) of the
Stock Purchase Agreement. Each reduction in the face amount of the Barton Letter
of Credit shall result in an automatic and simultaneous reduction in the
aggregate amount of the Barton Letter of Credit Commitments in an
Credit Agreement
amount equal to the amount of such reduction. Any portion of the Barton Letter
of Credit Commitments not used on the Barton Letter of Credit Termination Date
shall be automatically terminated.
(e) The Commitments once terminated or reduced may not
be reinstated.
2.07 Commitment Fee.
(a) The Company shall pay to the Administrative Agent for
account of each Bank a commitment fee on the daily average unused amount of such
Bank's Revolving Credit Commitment (for which purpose the aggregate amount of
any Letter of Credit Liabilities in respect of Revolving Letters of Credit shall
be deemed to be a pro rata (based on the Revolving Credit Commitments) use of
each Bank's Revolving Credit Commitment and for which purpose the aggregate
outstanding principal amount of any Money Market Loans shall not be so deemed),
for the period from and including the date hereof to but not including the
earlier of the date such Revolving Credit Commitment is terminated and the
Revolving Credit Termination Date, at a rate per annum equal to the Commitment
Fee Percentage.
(b) The Company shall pay to the Administrative Agent for
account of the Barton Letter of Credit Banks a commitment fee on the daily
average unused amount of such Bank's Barton Letter of Credit Commitment (for
which purpose the aggregate amount of the Letter of Credit Liabilities in
respect of the Barton Letter of Credit shall be deemed to be a pro rata (based
on the Barton Letter of Credit Commitments) use of such Bank's Barton Letter of
Credit Commitment), for the period from and including the date hereof to but not
including the earlier of the date such Barton Letter of Credit Commitment is
terminated and the Barton Letter of Credit Termination Date, at a rate per annum
of equal to the Commitment Fee Percentage.
(c) Accrued commitment fees shall be payable on each Quarterly
Date and on the earlier of the date the relevant Commitments are terminated and
the Revolving Credit Termination Date (in the case of the Revolving Credit
Commitments) or the Term Loan Commitment Termination Date (in the case of the
Term Loan and Barton Letter of Credit Commitments). All commitment fees
hereunder shall be computed as set forth in Section 4.03 hereof.
2.08 Lending Offices. The Loans of each Type made by
each Bank shall be made and maintained at such Bank's Applicable
Lending Office for Loans of such Type.
Credit Agreement
2.09 Several Obligations; Remedies Independent. The
-----------------------------------------
failure of any Bank (such Bank, a "Non-Funding Bank") to make any
----------------
Loan to be made by it on the date specified therefor shall not
relieve any other Bank (each such other Bank, an "Other Bank") of
----------
its obligation to make its Loan on such date, but neither any
Other Bank nor the Administrative Agent shall be responsible for
the failure of any Non-Funding Bank to make a Loan to be made by
such Non-Funding Bank, and no Non-Funding Bank shall have any
obligation to the Administrative Agent or any Other Bank for the
failure by such Non-Funding Bank to make any Loan required to be
made by such Non-Funding Bank. The foregoing shall not relieve
any Non-Funding Bank from any liability it may have to the
Company in respect of its failure to honor its obligation to make
the respective Loan. Anything in this Agreement to the contrary
notwithstanding, each Bank hereby agrees with each other Bank
that no Bank shall take any action to protect or enforce its
rights arising out of this Agreement or the Notes (including,
without limitation, exercising any rights of off-set) without
first obtaining the prior written consent of the Administrative
Agent or the Majority Banks, it being the intent of the Banks
that any such action to protect or enforce rights under this
Agreement and the Notes shall be taken in concert and at the
direction or with the consent of the Administrative Agent or the
Majority Banks and not individually by a single Bank.
2.10 Notes.
(a) The Revolving Credit Loans (other than the Swingline
Loans) made by each Bank shall be evidenced by a single promissory note of the
Company substantially in the form of Exhibit A-1 hereto, dated the date hereof,
payable to such Bank in a principal amount equal to the amount of its Revolving
Credit Commitment as originally in effect and otherwise duly completed.
(b) The Term Loans made by each Bank shall be evidenced by two
promissory notes of the Company each substantially in the form of Exhibit A-2
hereto, dated the date hereof, payable to such Bank in the respective principal
amounts provided in the next sentence and otherwise duly completed. The
aggregate principal amount of such notes executed and delivered to any Bank
shall be equal to the amount of such Bank's Term Loan Commitment as originally
in effect, the first of which notes (the "Mortgage Note") being in a principal
amount equal to 2/246 of the amount of such Bank's Term Loan Commitment and to
be secured by all of the collateral security provided for pursuant to the
Security Documents (including, without limitation, the Mortgages covering real
property of the Obligors in New York) and the second of which notes (the
"Non-Mortgage Note") being in a principal amount equal to 244/246 of the amount
of such Bank's
Credit Agreement
Term Loan Commitment and to be secured by all of the collateral security
provided for pursuant to the Security Documents (excluding, however, the
Mortgages covering real property of the Obligors in New York). Anything in this
Agreement to the contrary notwithstanding, all payments and prepayments of the
Term Loans hereunder shall be deemed to be applied first to the portion of the
Term Loans evidenced by the Non-Mortgage Notes (until the same shall have been
paid in full) and last to the portion of the Term Loans evidenced by the
Mortgage Notes.
(c) The Money Market Loans made by any Bank shall be evidenced
by a single promissory note of the Company substantially in the form of Exhibit
A-3 hereto, dated the date hereof, payable to such Bank and otherwise duly
completed.
(d) The Swingline Loans made by the Swingline Bank shall be
evidenced by a single promissory note of the Company substantially in the form
of Exhibit A-4 hereto, dated the date hereof, payable to the Swingline Bank in a
principal amount equal to $8,000,000 and otherwise duly completed.
(e) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Bank to
the Company, and each payment made on account of the principal thereof, shall be
recorded by such Bank on its books and, prior to any transfer of the Note
evidencing the Loans of such Class held by it, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof; provided that the
failure of such Bank to make any such recordation or endorsement shall not
affect the obligations of the Company to make a payment when due of any amount
owing hereunder or under such Note in respect of the Loans to be evidenced by
such Note.
(f) No Bank shall be entitled to have its Notes subdivided, by
exchange for promissory notes of lesser denominations or otherwise, except in
connection with a permitted assignment of all or any portion of such Bank's
relevant Commitment, Loans and Notes pursuant to Section 12.06(b) hereof.
2.11 Optional Prepayments and Conversions or Continuations of
Loans. Subject to Section 4.04 hereof, the Company shall have the right to
prepay Syndicated Loans or Swingline Loans, or to Convert Syndicated Loans of
one Type into Syndicated Loans of another Type or Continue Syndicated Loans of
one Type as Syndicated Loans of the same Type, at any time or from time to time,
provided that: (a) the Company shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in Section 4.05
hereof (and, upon the
Credit Agreement
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); (b) Eurodollar Loans may be prepaid or
Converted only on the last day of an Interest Period for such Loans; and (c)
prepayments of the Term Loans, shall be applied to the remaining installments
thereof, ratably in accordance with the respective principal amounts thereof.
Money Market Loans may not be prepaid.
2.12 Mandatory Prepayments and Reductions of Commit-
-----------------------------------------------
ments.
-----
(a) Borrowing Base. Until the Revolving Credit Termination
Date, the Company shall from time to time immediately prepay the Revolving
Credit Loans and Money Market Loans (and/or provide cover for Letter of Credit
Liabilities in respect of Revolving Letters of Credit as specified in clause (i)
below) in such amounts as shall be necessary so that at all times the aggregate
outstanding amount of the Revolving Credit Loans and Money Market Loans,
together with the Letter of Credit Liabilities in respect of Revolving Letters
of Credit, shall not exceed the Borrowing Base, such amount to be applied,
first, to Revolving Credit Loans outstanding, second to Money Market Loans
outstanding and, third, as cover for Letter of Credit Liabilities in respect of
Revolving Letters of Credit.
(b) Revolving Credit Loans Clean-Up. The Company will from
time to time prepay the Revolving Credit Loans and Money Market Loans in such
amounts as shall be necessary so that for a period of at least thirty
consecutive days at any time during the last two fiscal quarters of each fiscal
year (commencing with the fiscal year ending August 31, 1996), the aggregate
outstanding principal amount of the Revolving Credit Loans and Money Market
Loans together with the Letter of Credit Liabilities in respect of Revolving
Letters of Credit does not exceed $50,000,000.
(c) Casualty Events. Upon the date 180 days following the
receipt by the Company of the proceeds of insurance, condemnation award or
other compensation with respect to any Casualty Event affecting any Property of
the Company or any of its Subsidiaries (or upon such earlier date as the Company
or its Subsidiary, as the case may be, shall have determined not to repair or
replace the Property affected by such Casualty Event), the Company shall repay
the Loans (and/or provide cover for the Letter of Credit Liabilities as
specified in clause (i) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount, if any, equal to 100% of the Net
Available Proceeds of such Casualty Event not theretofore applied to the repair
or replacement of such Property, such prepayment and reduction to be effected in
each case in the manner and to the
Credit Agreement
extent specified in clause (h) below). Notwithstanding the foregoing, in the
event that a Casualty Event shall occur with respect to Property covered by any
Mortgage, the Company shall, if required by the terms of such Mortgage, prepay
the Loans (and/or provide cover for the Letter of Credit Liabilities as
specified in clause (i) below), and the Commitments shall be subject to
automatic reduction, on the dates, and in the amounts, of the required
prepayments specified in accordance with such Mortgage. Nothing in this clause
(c) shall be deemed to limit any obligation of the Company pursuant to any of
the Security Documents to remit to a collateral or similar account maintained by
the Administrative Agent pursuant to any of the Security Documents the proceeds
of insurance, condemnation award or other compensation received in respect of
any Casualty Event.
(d) Sale of Assets. Without limiting the obligation of the
Company to obtain the consent of the Majority Banks pursuant to Section 9.05
hereof to any Disposition not otherwise permitted hereunder, in the event that
the Net Available Proceeds of any Disposition (herein, the "Current
Disposition"), and of all prior Dispositions as to which a prepayment has not
yet been made under this Section 2.12(d), shall exceed $15,000,000 then, no
later than five Business Days prior to the occurrence of the Current
Disposition, the Company will deliver to the Banks a statement, certified by the
chief financial officer of the Company, in form and detail satisfactory to the
Administrative Agent, of the amount of the Net Available Proceeds of the Current
Disposition and of all such prior Dispositions and will prepay the Loans (and/or
provide cover for Letter of Credit Liabilities as specified in clause (i)
below), and the Commitments shall be subject to automatic reduction, in an
aggregate amount equal to 100% of the Net Available Proceeds of the Current
Disposition and such prior Dispositions, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in clause (h)
below.
(e) Equity Issuance. Upon any Equity Issuance, the Company
shall prepay the Loans (and/or provide cover for the Letter of Credit
Liabilities as specified in clause (i) below), and the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 50% of the Net
Available Proceeds thereafter, such prepayment and reduction to be effected in
each case in the manner and to the extent specified in clause (h) below.
(f) Subordinated Indebtedness. Without limiting the
obligation of the Company to obtain the consent of the Majority
Banks to the issuance of any Subordinated Indebtedness not
permitted hereunder, upon the receipt by the Company of any cash
Credit Agreement
proceeds from any issuance of Subordinated Indebtedness, the Company shall
prepay the Loans (and/or provide cover for the Letter of Credit Liabilities as
specified in clause (i) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to the portion of the Net
Available Proceeds thereof that exceeds (in the aggregate for all such issuances
after the date hereof) $50,000,000, such prepayment and reduction to be effected
in each case in the manner and to the extent specified in clause (h) below.
(g) Excess Cash Flow. Not later than the date 90 days after
the end of each fiscal year of the Company, commencing with the fiscal year
ending August 31, 1996, the Company shall prepay the Loans (and/or provide cover
for the Letter of Credit Liabilities as specified in clause (i) below), and
the Commitments shall be subject to automatic reduction, in an aggregate amount
equal to the excess of (A) 50% of Excess Cash Flow for such fiscal year over (B)
the aggregate amount of prepayments of Term Loans made during such fiscal year
pursuant to Section 2.11 hereof and, after the payment in full of the Term
Loans, the aggregate amount of voluntary reductions of Revolving Credit
Commitments made during such fiscal year pursuant to Section 2.06(b) hereof,
such prepayment and reduction to be effected in each case in the manner and to
the extent specified in clause (h) below.
(h) Application. Prepayments and reductions of Commitments
described in the above clauses of this Section 2.12 (other than in clauses (a)
and (b) above) shall be effected as follows:
(i) first, the amount of any such prepayment shall be
applied to the Term Loans allocated (x) in the case of any prepayment
pursuant to clauses (c), (d), (e) or (f) above to the installments
thereof in the inverse order of the maturity and (y) in the case of any
prepayment pursuant to clause (g) above, to the remaining installments
thereof, ratably in accordance with the respective principal amounts
thereof;
(ii) second, the Revolving Credit Commitments shall be
automatically reduced by an amount equal to any excess over the amount
referred to in the foregoing clause (i) (and to the extent that, after
giving effect to such reduction, the aggregate principal amount of
Revolving Credit Loans and Money Market Loans, together with the
aggregate amount of all Letter of Credit Liabilities in respect of
Revolving Letters of Credit would exceed the Revolving Credit
Commitments, the Company shall, first, prepay Revolving Credit Loans,
second, prepay Money Market Loans and, third
Credit Agreement
provide cover for Letter of Credit Liabilities in respect of Revolving
Letters of Credit as specified in clause (h) below, in an aggregate
amount equal to such excess); and
(iii) third, if after payment in full of the principal of
and interest on the Term Loans and Revolving Credit Loans (and (A) the
reduction to zero of the Revolving Credit Commitments as provided in
clauses (i) and (ii) above and (B) the provision for cover for Letter
of Credit Liabilities in respect of Revolving Letters as provided in
clause (ii) above) the Barton Letter of Credit shall be outstanding,
such required prepayment shall be used to provide cover for Letter of
Credit Liabilities in respect of the Barton Letter of Credit as
specified in clause (h) below.
(i) Cover for Letter of Credit Liabilities. In the event that
the Company shall be required pursuant to this Section 2.12 to provide cover for
Letter of Credit Liabilities, the Company shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided therein as collateral security in the first
instance for the Letter of Credit Liabilities) until such time as the Letters of
Credit shall have been terminated and all of the Letter of Credit Liabilities
paid in full.
(j) Change of Control. In the event that the Company shall be
required pursuant to the provisions of any instrument evidencing or governing
any Subordinated Indebtedness to redeem, or make an offer to redeem or
repurchase, all or any portion of such Subordinated Indebtedness as a result of
a change of control (however defined), then, concurrently with the occurrence of
the event giving rise to such change of control, the Company shall prepay the
Loans (and/or provide cover for the Letter of Credit Liabilities as specified in
clause (h) above) in full, and the Commitments shall be automatically reduced to
zero.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Company hereby promises to pay to the Administrative
Agent for account of each Bank the entire outstanding principal amount of such
Bank's Revolving Credit Loans, and each Revolving Credit Loan shall mature, on
the Revolving Credit Termination Date; the Company hereby agrees to
Credit Agreement
pay to the Administrative Agent for account of the Swingline Bank the full
outstanding amount of each Swingline Loan, and each Swingline Loan shall mature,
the earlier of (A) two Business Days after such Loan is made by the Swingline
Bank or (B) the Revolving Credit Termination Date.
(b) The Company hereby promises to pay to the Administrative
Agent for account of each Bank that makes any Money Market Loan the principal
amount of such Money Market Loan, and such Money Market Loan shall mature, on
the last day of the Interest Period for such Money Market Loan.
(c) The Company hereby promises to pay to the Administrative
Agent for account of the Term Loan Banks the principal of the Term Loans in
twenty-four installments payable on the Principal Payment Dates as follows:
Principal Payment Date Amount of
falling on or nearest to: Installment
December 15, 1995 $10,000,000.00
March 15, 1996 $10,000,000.00
June 15, 1996 $10,000,000.00
September 15, 1996 $10,000,000.00
December 15, 1996 $10,000,000.00
March 15, 1997 $10,000,000.00
June 15, 1997 $10,000,000.00
September 15, 1997 $10,000,000.00
December 15, 1997 $10,000,000.00
March 15, 1998 $10,000,000.00
June 15, 1998 $10,000,000.00
September 15, 1998 $10,000,000.00
December 15, 1998 $10,000,000.00
March 15, 1999 $10,000,000.00
June 15, 1999 $10,000,000.00
September 15, 1999 $10,000,000.00
December 15, 1999 $10,000,000.00
March 15, 2000 $10,000,000.00
June 15, 2000 $10,000,000.00
September 15, 2000 $10,000,000.00
December 15, 2000 $10,000,000.00
March 15, 2001 $10,000,000.00
June 15, 2001 $10,000,000.00
August 15, 2001 $16,000,000.00
Credit Agreement
If after giving effect to the designation of the Existing Term Loans as Term
Loans hereunder (as provided in Section 2.01(b) hereof), and the making of any
additional Term Loans hereunder, on the Effective Date, the aggregate
outstanding principal amount of the Term Loans shall be less than the aggregate
amount of the Term Loan Commitments, the shortfall shall be applied to reduce
the foregoing installments in the inverse order of maturity. Prepayments of Term
Loans made pursuant to Section 2.11 or Section 2.12 hereof shall be applied to
the foregoing amortization schedule in accordance with Section 2.11(c) or
Section 2.12(h) hereof, as the case may be.
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Bank interest on the unpaid principal
amount of each Loan made by such Bank for the period from and including the date
of such Loan to but excluding the date such Loan shall be paid in full, at the
following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin;
(b) during such periods as such Loan is a Eurodollar Loan, for
each Interest Period relating thereto, the Eurodollar Rate for such
Loan for such Interest Period plus the Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate for
such Loan for the Interest Period therefor plus (or minus) the LIBO
Margin quoted by the Bank making such Loan in accordance with Section
2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for such
Loan for the Interest Period therefor quoted by the Bank making such
Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank and on any
other amount payable by the Company hereunder or under the Notes held by such
Bank to or for account of such Bank, which shall not be paid in full when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest on each Loan shall
be payable (i) in the case of a Base Rate Loan, quarterly on the Quarterly
Dates, (ii) in the
Credit Agreement
case of a Eurodollar Loan or a Money Market Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the Banks
to which such interest is payable and to the Company.
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts to
be made by the Company under this Agreement and the Notes and, except to the
extent otherwise provided therein, all payments to be made by the Company under
any other Basic Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
at account number NYAO-DI-900-9-000002 maintained by the Administrative Agent
with Chase at the Principal Office, not later than 1:00 p.m. New York time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day).
(b) The Company shall, at the time of making each payment
under this Agreement or any Note for account of any Bank, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by the Company
hereunder to which such payment is to be applied (and in the event that the
Company fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Banks
for application in such manner as it or the Majority Banks, subject to Section
4.02 hereof, may determine to be appropriate).
(c) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Bank shall be paid by the
Administrative Agent promptly to such Bank, in immediately available funds, for
account of such Bank's
Credit Agreement
Applicable Lending Office for the Loan or other obligation in respect of which
such payment is made.
(d) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing of Loans of a particular Class from the
Banks under Section 2.01 hereof shall be made from the relevant Banks, each
payment of commitment fee under Section 2.07 hereof in respect of Commitments of
a particular Class shall be made for account of the relevant Banks, and each
termination or reduction of the amount of the Commitments of a particular Class
under Section 2.06 hereof shall be applied to the respective Commitments of such
Class of the relevant Banks, pro rata according to the amounts of their
respective Commitments of such Class; (b) the making, Conversion and
Continuation of Revolving Credit Loans and Term Loans of a particular Type
(other than Conversions provided for by Section 5.04 hereof) shall be made pro
rata among the relevant Banks according to the amounts of their respective
Revolving Credit and Term Loan Commitments (in the case of making of Loans) or
their respective Revolving Credit Loans and Term Loans (in the case of
Conversions and Continuations of Loans) and the then current Interest Period for
each Eurodollar Loan shall be coterminous; (c) each payment or prepayment of
principal of Revolving Credit Loans and Term Loans by the Company shall be made
for account of the relevant Banks pro rata in accordance with the respective
unpaid principal amounts of the Syndicated Loans of such Class held by them; and
(d) each payment of interest on Revolving Credit Loans and Term Loans by the
Company shall be made for account of the relevant Banks pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Banks. Notwithstanding the foregoing, borrowings, payments and
prepayments of Swingline Loans shall be made without regard to the foregoing
provisions of this Section 4.02; provided that each mandatory prepayment made
pursuant to Section 2.12 hereof in respect of Revolving Credit Loans shall be
applied ratably to all Revolving Credit Loans (including, without limitation,
the Swingline Loans).
4.03 Computations. Interest on Loans and Reimbursement
Obligations and commitment fee and letter of credit fees shall be computed on
the basis of a year of 360 days and actual days elapsed (including the first day
but excluding the last day) occurring in the period for which payable.
Credit Agreement
4.04 Minimum Amounts. Except for mandatory prepayments made
pursuant to Section 2.12 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment of
principal of Loans (other than Money Market Loans) shall be in an aggregate
amount at least equal to $1,000,000 or in multiples of $100,000 in excess
thereof (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of Eurodollar Loans, having different Interest Periods at
the same time hereunder to be deemed separate borrowings, Conversions and
prepayments for purposes of the foregoing, one for each Type or Interest
Period). Anything in this Agreement to the contrary notwithstanding, the
aggregate principal amount of Eurodollar Loans having the same Interest Period
shall be in an amount at least equal to $2,000,000 or in multiples of $100,000
in excess thereof and, if any Eurodollar Loans would otherwise be in a lesser
principal amount for any period, such Loans shall be Base Rate Loans during such
period. As provided in Section 2.01(c)(iii) hereof, the provisions of this
Section 4.04 shall not apply to Swingline Loans.
4.05 Certain Notices. Except as otherwise provided in Section
2.03 hereof with respect to Money Market Loans, notices by the Company to the
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans and of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 12:00 noon New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 4
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Credit Agreement
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Banks of the contents of each such notice. In the event that the
Company fails to select the Type of Loan, or the duration of any Interest Period
for any Eurodollar Loan, within the time period and otherwise as provided in
this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
As provided in Section 2.01(c)(iii) hereof, the provisions of this Section 4.05
shall not apply to Swingline Loans.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Bank or the Company (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be
made by such Bank, or a participation in a Letter of Credit drawing or an
interest in an Existing Loan to be acquired by such Bank, hereunder or (in the
case of the Company) a payment to the Administrative Agent for account of one or
more of the Banks hereunder (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date; and, if the Payor
has not in fact made the Required Payment to the Administrative Agent, the
recipient(s) of such payment shall, on demand, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date (the "Advance Date") such amount
was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Rate for such day and, if such recipient(s) shall fail promptly to
make such payment, the Administrative Agent shall be entitled to recover such
amount, on
Credit Agreement
demand, from the Payor, together with interest as aforesaid, provided that if
neither the recipient(s) nor the Payor shall return the Required Payment to the
Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment
to be made by the Company to the Banks, the Company and the
recipient(s) shall each be obligated retroactively to the Advance Date
to pay interest in respect of the Required Payment at the Post-Default
Rate (without duplication of the obligation of the Company under
Section 3.02 hereof to pay interest on the Required Payment at the
Post-Default Rate), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall
not limit the obligation of the Company under said Section 3.02 to pay
interest at the Post-Default Rate in respect of the Required Payment,
and
(ii) if the Required Payment shall represent proceeds of
a Loan to be made by the Banks to the Company, the Payor and the
Company shall each be obligated retroactively to the Advance Date to
pay interest in respect of the Required Payment pursuant to whichever
of the rates specified in Section 3.02 hereof is applicable to the Type
of such Loan, it being understood that the return by the Company of the
Required Payment to the Administrative Agent shall not limit any claim
the Company may have against the Payor in respect of the Required
Payment.
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Bank may
otherwise have, each Bank shall be entitled, at its option (but subject, as
between the Banks, to the provisions of the last sentence of Section 2.09
hereof), to offset balances held by it for account of the Company at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Bank's Loans, Reimbursement Obligations or any other
amount payable to such Bank hereunder, that is not paid when due (regardless
of whether such balances are then due to the Company), in which case it shall
promptly notify the Company and the Administrative Agent thereof, provided that
such Bank's failure to give such notice shall not affect the validity thereof.
Credit Agreement
(b) If any Bank shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or payment of any other amount under this Agreement or any Note held
by it or any other Basic Document through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such payment, such
Bank shall have received a greater percentage of the principal of or interest on
the Loans of such Class or Letter of Credit Liabilities or such other amounts
then due hereunder or thereunder by such Obligor to such Bank than the
percentage received by any other Bank, it shall promptly purchase from such
other Banks participations in (or, if and to the extent specified by such Bank,
direct interests in) the Loans of such Class or Letter of Credit Liabilities or
such other amounts, respectively, owing to such other Banks (or in interest due
thereon, as the case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Banks shall
share the benefit of such excess payment (net of any expenses that may be
incurred by such Bank in obtaining or preserving such excess payment) pro rata
in accordance with the unpaid principal of and/or interest on the Loans of such
Class or Letter of Credit Liabilities or such other amounts, respectively, owing
to each of the Banks. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Bank were a direct holder of Loans or other amounts (as the case may
be) owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in lieu of a
set-off to which this Section 4.07 applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Credit Agreement
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from time to
time such amounts as such Bank may reasonably determine to be necessary to
compensate such Bank for any costs that such Bank reasonably determines are
attributable to its making or maintaining of any Eurodollar Loans or its
obligation to make any Eurodollar Loans hereunder, or any reduction in any
amount receivable by such Bank hereunder in respect of any of such Loans or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change
that:
(i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or its Notes in respect of
any of such Loans (other than taxes imposed on or measured by the
overall net income of such Bank or of its Applicable Lending Office for
any of such Loans by the jurisdiction in which such Bank has its
principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized in
the determination of the Eurodollar Rate or LIBO Rate, as the case may
be, for such Loan) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Bank (including,
without limitation, any of such Loans or any deposits referred to in
the definition of "Eurodollar Base Rate" in Section 1.01 hereof), or
any commitment of such Bank (including, without limitation, the
Commitments of such Bank hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Notes (or any of such extensions of credit or
liabilities) or its Commitments.
If any Bank requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Bank (with a copy to the Administrative
Agent), suspend the obligation of such Bank thereafter to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable), provided that
such suspension shall not affect the right of such Bank to receive the
compensation so requested.
Credit Agreement
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay directly to
each Bank from time to time on request such amounts as such Bank may reasonably
determine to be necessary to compensate such Bank (or, without duplication, the
bank holding company of which such Bank is a subsidiary) for any costs that it
reasonably determines are attributable to the maintenance by such Bank (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to complete therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or
other requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basel Accord, of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Bank (or any Applicable Lending
Office or such bank holding company) to a level below that which such Bank (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request).
(c) Each Bank shall notify the Company of any event occurring
after the date of this Agreement entitling such Bank to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Bank obtains actual knowledge thereof; provided
that (i) if any Bank fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Bank shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Bank does
give such notice and (ii) each Bank will designate a different Applicable
Lending Office for the Loans of such Bank affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Bank, be disadvantageous to such Bank,
except that such Bank shall have no obligation to designate an Applicable
Lending Office located in the United States of America. Each Bank will furnish
to the Company a certificate setting forth the basis and amount of each request
by such Bank for compensation under paragraph (a) or (b) of this Section 5.01.
Determinations and allocations by any Bank for purposes of this Section 5.01 of
the effect of any Regulatory Change pursuant to paragraph (a) or (b)
Credit Agreement
of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (b) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Bank
under this Section 5.01, shall be conclusive.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any
Eurodollar Base Rate for any Interest Period:
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans or LIBOR Market Loans as provided herein;
or
(b) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Banks or, if the related Loans are Term
Loans, the Majority Term Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a LIBOR Market Loan
determines), which determination shall be conclusive, and notify (or
notifies, as the case may be) the Administrative Agent that the
relevant rates of interest referred to in the definition of "Eurodollar
Base Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans or LIBOR Market Loans, as the case may
be, for such Interest Period is to be determined are not likely
adequately to cover the cost to such Banks (or to such quoting Bank) of
making or maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Bank (or to such
quoting Bank) prompt notice thereof and, so long as such condition remains in
effect, the Banks shall be under no obligation to make additional Eurodollar
Loans or LIBOR Market Loans, to Continue Eurodollar Loans or to Convert Base
Rate Loans into Eurodollar Loans, and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans or
LIBOR Market Loans, either prepay such Loans or Convert such Loans into Base
Rate Loans in accordance with Section 2.11 hereof.
5.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any
Bank or its Applicable Lending Office to honor its obligation to
Credit Agreement
make or maintain Eurodollar Loans or LIBOR Market Loans hereunder, then such
Bank shall promptly notify the Company thereof (with a copy to the
Administrative Agent) and such Bank's obligation to make or Continue, or to
Convert Loans of any other Type into, Eurodollar Loans shall be suspended until
such time as such Bank may again make and maintain Eurodollar Loans (in which
case the provisions of Section 5.04 hereof shall be applicable), and such Bank
shall no longer be obligated to make any LIBOR Market Loan that it has offered
to make.
5.04 Treatment of Affected Loans. If the obligation of any
Bank to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03
hereof, such Bank's Eurodollar Loans shall be automatically Converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for
Eurodollar Loans (or, in the case of a Conversion required by Section 5.03
hereof, on such earlier date as such Bank may specify to the Company with a copy
to the Administrative Agent) and, unless and until such Bank gives notice as
provided below that the circumstances specified in Section 5.03 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Bank's Eurodollar Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Bank's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Bank as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Base Rate Loans of such Bank that would
otherwise be Converted into Eurodollar Loans shall remain as Base Rate
Loans.
If such Bank gives notice to the Company with a copy to the Administrative Agent
that the circumstances specified in Section 5.03 hereof that gave rise to the
Conversion of such Bank's Eurodollar Loans pursuant to this Section 5.04 no
longer exist (which such Bank agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Banks are
outstanding, such Bank's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Banks holding Eurodollar Loans and by such Bank are held
pro rata (as to principal amounts, Types and Interest Periods) in accordance
with their respective Commitments.
Credit Agreement
5.05 Compensation. The Company shall pay to the Administrative
Agent for account of each Bank, upon the request of such Bank through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost or expense
that such Bank determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan, a LIBO Market Loan or a Set Rate Loan
made by such Bank for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10 hereof) on a date
other than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied) to borrow a Eurodollar
Loan, a Money Market Loan or a Set Rate Loan (with respect to which, in
the case of a Money Market Loan, the Company has accepted a Money
Market Quote), from such Bank on the date for such borrowing specified
in the relevant notice of borrowing given pursuant to Section 2.02
hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment, prepay-
ment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Bank would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Bank).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any govern-
ment or governmental or supervisory authority implementing at the national level
the Basel Accord there shall be imposed, modified
Credit Agreement
or deemed applicable any tax, reserve, special deposit, capital adequacy or
similar requirement against or with respect to or measured by reference to
Letters of Credit issued or to be issued hereunder and the result shall be to
increase the cost to any Bank or Banks of issuing (or purchasing participations
in) or maintaining its obligation hereunder to issue (or purchase participations
in) any Letter of Credit hereunder or reduce any amount receivable by any Bank
hereunder in respect of any Letter of Credit (which increases in cost, or
reductions in amount receivable, shall be the result of such Bank's or Banks'
reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by such Bank or Banks (through the
Administrative Agent), the Company shall pay immediately to the Administrative
Agent for account of such Bank or Banks, from time to time as specified by such
Bank or Banks (through the Administrative Agent), such additional amounts as
shall be sufficient to compensate such Bank or Banks (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Bank or Banks,
submitted by such Bank or Banks to the Company shall be conclusive in the
absence of manifest error as to the amount thereof.
Section 6. Guarantee.
6.01 Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Bank 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 made by the Banks to, and the Notes held by each Bank of,
the Company, all indebtedness of the Company to any of the Banks in respect of
Interest Rate Protection Agreements entered into pursuant to the requirements
set forth in Section 9.11 hereof and all other amounts from time to time owing
to the Banks or the Administrative Agent by the Company under this Agreement and
under the Notes and by any Obligor under any of the other Basic Documents, in
each case strictly in accordance with the terms hereof and thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
Subsidiary Guarantors hereby further jointly and severally agree that if the
Company 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
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otherwise) in accordance with the terms of such extension or
renewal.
6.02 Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 6.01 hereof are absolute and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the obligations of the Company under this Agreement, the
Notes 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 which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.02 that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. In full recognition and in
furtherance of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of
Section 6.01 hereof in accordance with its terms and without affecting,
limiting, reducing, discharging or terminating the liability of such
Subsidiary Guarantor, or the rights, remedies, powers and privileges of
the Administrative Agent and the Banks under this Agreement, the Notes
or any other agreement or instrument referred to herein or therein, the
Administrative Agent and the Banks may, at any time and from time to
time and without notice or demand of any kind or nature whatsoever:
(i) amend, supplement, modify, extend, renew,
waive, accelerate or otherwise change the time for payment or
performance of, or the terms of, all or any part of the
Guaranteed Obligations (including any increase or decrease in
the rate or rates of interest on all or any part of the
Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew,
waive or otherwise change, or enter into or give, any Basic
Document or any agreement, security document, guarantee,
approval, consent or other instrument with respect to all or
any part of the Guaranteed Obligations, any Basic Document
or any such other instrument or any term or provision of the
foregoing (it being understood that this clause (ii) shall not
be deemed to constitute a consent by any Subsidiary Guarantor
to any such amendment with respect to any Basic Document to
which it is a party);
Credit Agreement
(iii) accept or enter into new or additional
agreements, security documents, guarantees (including letters
of credit) or other instruments in addition to, in exchange
for or relative to any Basic Document, all or any part of the
Guaranteed Obligations or any collateral now or in the future
serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any
other Subsidiary Guarantor) partial payments or performance on
the Guaranteed Obligations (whether as a result of the
exercise of any right, remedy, power or privilege or
otherwise);
(v) accept, receive and hold any additional
collateral for all or any part of the Guaranteed
Obligations (including from any other Guarantor);
(vi) release, reconvey, terminate, waive,
abandon, allow to lapse or expire, fail to perfect,
subordinate, exchange, substitute, transfer, foreclose upon or
enforce any collateral, security documents or guarantees
(including letters of credit or the obligations of any other
Subsidiary Guarantor) for or relative to all or any part of
the Guaranteed Obligations;
(vii) apply any collateral or the proceeds of
any collateral or guarantee (including any letter of credit or
the obligations of any other Subsidiary Guarantor) to all or
any part of the Guaranteed Obligations in such manner and
extent as the Administrative Agent or any Bank may in its
discretion determine;
(viii) release any Person (including any other
Subsidiary Guarantor) from any personal liability with respect
to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or
enforce upon such terms and in such manner as the
Administrative Agent or the Banks may determine or as
applicable law may dictate all or any part of the Guaranteed
Obligations or any collateral on or guarantee (including any
letter of credit issued with respect to) of all or any part of
the Guaranteed Obligations;
Credit Agreement
(x) consent to the merger or consolidation of,
the sale of substantial assets by, or other restructuring or
termination of the corporate existence of the Company or any
other Person (including any other Subsidiary Guarantor);
(xi) proceed against the Company, such or any
other Subsidiary Guarantor or any other guarantor of
(including any issuer of any letter of credit issued with
respect to) all or any part of the Guaranteed Obligations or
any collateral provided by any Person and exercise the right,
remedies, powers and privileges of the Administrative Agent
and the Banks under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or
otherwise in such order and such manner as the Administrative
Agent or any Bank may, in its discretion, determine, without
any necessity to proceed upon or against or exhaust any
collateral, right, remedy, power or privilege before
proceeding to call upon or otherwise enforce Section 6.01
hereof as to any Subsidiary Guarantor;
(xii) foreclose upon any deed of trust, mortgage
or other instrument creating or granting liens on any interest
in real property by judicial or nonjudicial sale or by deed in
lieu of foreclosure, bid any amount or make no bid in any
foreclosure sale or make any other election of remedies with
respect to such liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with
respect to any collateral for all or any part of the
Guaranteed Obligations and apply the proceeds of such
receivership as the Administrative Agent or any Bank may in
its discretion determine (it being agreed that nothing in this
clause (xiii) shall be deemed to make the Administrative Agent
or any Bank a party in possession in contemplation of law,
except at its option);
(xiv) enter into such other transactions or
business dealings with any other Subsidiary Guarantor, the
Company, any Subsidiary or Affiliate of the Company or any
other guarantor of all or any part of the Guaranteed
Obligations as the Administrative Agent or any Bank may
desire; and
Credit Agreement
(xv) do all or any combination of the actions
set forth in this 6.02(a).
(b) The enforceability and effectiveness of this Section 6 and
the liability of the Subsidiary Guarantors, and the rights remedies,
powers and privileges of the Administrative Agent and the Banks, under
this Agreement, the Notes or any other agreement or instrument referred
to herein or therein, shall not be affected, limited, reduced,
discharged or terminated, and each Subsidiary Guarantor hereby
expressly waives any defense now or in the future arising, by reason
of:
(i) the illegality, invalidity, irregularity,
authenticity, or unenforceability of all or any part of the
Guaranteed Obligations, this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any
agreement, security document, guarantee or other instrument
relative to all or any part of the Guaranteed Obligations;
(ii) any disability or other defense of the
Company or any other Subsidiary Guarantor with respect to all
of any part of the Guaranteed Obligations or any other
guarantor of all or any part of the Guaranteed Obligations
(including any issuer of any letters of credit), including the
effect of any statute of limitations that may bar the
enforcement of all or any part of the Guaranteed Obligations
or the obligations of any such other guarantor;
(iii) the illegality, invalidity, irregularity,
authenticity or unenforceability of any security or guarantee
(including any letter of credit) for all or any part of the
Guaranteed Obligations or the lack of perfection or continuing
perfection or failure of the priority of any lien on any
collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever,
of the liability of the Company or any other Subsidiary
Guarantor (other than subject to Section 6.05, by reason of
the full payment and performance of all Guaranteed
Obligations);
(v) any failure of the Administrative Agent or
any Bank to marshall assets in favor of the Company or any
other Person (including any other Subsidiary Guarantor), to
exhaust any collateral for all or any
Credit Agreement
part of the Guaranteed Obligations, to pursue or exhaust any
right, remedy, power or privilege it may have against any
other Subsidiary Guarantor, the Company, any other guarantor,
all or any part of the Guaranteed Obligations (including any
issuer of any letter of credit) or any other Person or to take
any action whatsoever to mitigate or reduce such or any other
Subsidiary Guarantor's liability under this Section 6, neither
the Administrative Agent nor any Bank being under any
obligation to take any such action notwithstanding the fact
that all or any part of the Guaranteed Obligations may be due
and payable and that the Company may be in default of its
obligations under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein;
(vi) any failure of the Administrative Agent or
any Bank to give notice after any Default of sale or other
disposition of any collateral (including any notice of any
judicial or nonjudicial foreclosure or sale of any interest in
real property serving as collateral for all or any part of the
Guaranteed Obligations) for all or any part of the Guaranteed
Obligations to the Company, any Subsidiary Guarantor or any
other Person or any defect in, or any failure by any
Subsidiary Guarantor or any other Person to receive, any
notice that may be given in connection with any sale or
disposition of any collateral;
(vii) any failure of the Administrative Agent or
any Bank to comply with applicable laws in connection with the
sale or other disposition of any collateral for all or any
part of the Guaranteed Obligations, including any failure to
conduct a commercially reasonable sale or other disposition of
any collateral for all or any part of the Guaranteed
Obligations;
(viii) any judicial or nonjudicial foreclosure or
sale of, or other election of remedies with respect to, any
interest in real property or other collateral serving as
security for all or any part of the Guaranteed Obligations,
even though such foreclosure, sale or election of remedies may
impair the subrogation rights of any Subsidiary Guarantor or
may preclude any Subsidiary Guarantor from obtaining
reimbursement, contribution, indemnification or other
recovery from any other Subsidiary Guarantor, the Company any
other guarantor or any other Person and even though the
Company may
Credit Agreement
not, as a result of such foreclosure, sale or election
of remedies, be liable for any deficiency;
(ix) any benefits the Company, any Subsidiary
Guarantor or any other guarantor may otherwise derive from
Sections 580(a), 580(b), 580(d) or 726 of the California Code
of Civil Procedure or any comparable provisions of the laws of
any other jurisdiction;
(x) any act or omission of the Administrative
Agent, any Bank or any other person that directly or
indirectly results in or aids the discharge or release of the
Company or any other Subsidiary Guarantor, of all or any part
of the Guaranteed Obligations or any security or guarantee
(including any letter of credit) for all or any part of the
Guaranteed Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor
in other respects more burdensome than that of the principal
or which reduces a surety's principal obligation;
(xii) the possibility that the obligations of
the Company to the Administrative Agent and the Banks may at
any time and from time to time exceed the aggregate liability
of the Subsidiary Guarantors under this Section 6;
(xiii) any counterclaim, set-off or other claim
which the Company or any other Subsidiary Guarantor has or
alleges to have with respect to all or any part of the
Guaranteed Obligations;
(xiv) any failure of the Administrative Agent or
any Bank to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person;
(xv) the election by the Administrative Agent
or any Bank, in a bankruptcy proceeding of any Person, of the
application or nonapplication of Section 1111(b)(2) of the
United States Bankruptcy Code;
(xvi) any extension of credit or the grant of
any lien under Section 364 of the United States Bankruptcy
Code;
Credit Agreement
(xvii) any use of cash collateral under Section
363 of the United States Bankruptcy Code;
(xviii) any agreement or stipulation with respect
to the provision of adequate protection in any
bankruptcy proceeding of any Person;
(xix) the avoidance of any lien in favor of the
Administrative Agent or any Bank for any reason;
(xx) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation
or dissolution proceeding commenced by or against any Person,
including any discharge of, or bar or stay against collecting,
all or any part of the Guaranteed Obligations (or any interest
on all or any part of the Guaranteed Obligations) in or as a
result of any such proceeding;
(xxi) any other circumstance whatsoever that
might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, including by reason of
Sections 2809, 2810, 2819, 2839, 2845, 2850, 2899, 3275 and
3433 of the California Civil Code, and any future judicial
decisions or legislation or of any comparable provisions of
the laws of any other jurisdiction; or
(xxiii) diligence, presentment, demand of payment,
protest and all notices whatsoever.
(c) Each Subsidiary Guarantor represents and warrants to the
Administrative Agent that it has established adequate means of
obtaining financial and other information pertaining to the business,
operations and condition (financial and otherwise) of the Company and
its properties on a continuing basis and that such Subsidiary Guarantor
is now and will in the future remain fully familiar with the business,
operations and condition (financial and otherwise) of the Company and
its properties. Each Subsidiary Guarantor further represents and
warrants that it has reviewed and approved this Agreement and the
related Basic Documents and is fully familiar with the transactions
contemplated by such Basic Documents and that it will in the future
remain fully familiar with such transaction and with any new Basic
Documents and the transaction contemplated by such Basic Documents.
Each Subsidiary Guarantor hereby expressly waives and relinquishes any
duty on the part of the Administrative Agent or the Banks (should any
such duty
Credit Agreement
exist) to disclose to such or any other Subsidiary Guarantor any matter
of fact or other information related to the business, operations or
condition (financial or otherwise) of the Company or its properties or
to any Basic Documents or the transactions undertaken pursuant to, or
contemplated by, such Basic Documents, whether now or in the future
known by the Administrative Agent or any Bank.
6.03 Reinstatement. The obligations of the Subsidiary
Guarantors under this Section 6 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Company 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 proceed-
ings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Bank on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Bank in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
6.04 Subrogation. Each Subsidiary Guarantor hereby waives all
rights of subrogation or contribution, whether arising by contract or operation
of law (including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 6 and further agrees with the Company for the
benefit of each of its creditors (including, without limitation, each Bank and
the Administrative Agent) that any such payment by it shall, to the fullest
extent permitted by law, constitute a dividend on the common stock of such
Subsidiary Guarantor owned by the Company or a return of capital paid by such
Subsidiary Guarantor to the Company and, otherwise, an investment in the equity
capital of the Company by such Subsidiary Guarantor. Each Subsidiary Guarantor
understands that, by reason of the foregoing provisions of this Section 6.04,
the exercise by the Administrative Agent or any Bank of the rights, remedies,
powers and privileges that it has under this Section 6 and under the other Basic
Documents will result in nonreimbursable liabilities under this Agreement.
Nevertheless, each Subsidiary Guarantor hereby authorizes and empowers the
Administrative Agent and the Banks to exercise, in its or their sole discretion,
any combination of such rights, remedies, powers and privileges as they, in
their sole discretion, shall deem appropriate.
Credit Agreement
6.05 Remedies. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Banks, the obligations
of the Company under this Agreement and the Notes may be declared to be
forthwith due and payable as provided in Section 10 hereof (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 10) for purposes of Section 6.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Company 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 Company) shall forthwith become due and payable by the Subsidiary
Guarantors for purposes of said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this
Section 6 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
6.07 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 6.01 hereof would otherwise 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 6.01, then,
notwithstanding any other provision hereof to the contrary, the amount of such
liability shall, without any further action by such Subsidiary Guarantor, any
Bank, the Administrative Agent or any other Person, be automatically limited and
reduced to the highest amount which is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
Section 7. Conditions Precedent.
7.01 Conditions to Effectiveness. The effectiveness of this
Agreement (and the amendment and restatement of the Existing Credit Agreement to
be effected hereby), and the obligations of the Banks to extend credit hereunder
(whether by making a Loan or by issuing a Letter of Credit) on the Effective
Date, are subject to (i) the condition precedent that such effectiveness shall
occur, and such extension of credit shall be made, on or before November 1, 1995
and (ii) the receipt by the Administrative Agent of the following documents,
each of which
Credit Agreement
shall be satisfactory to the Administrative Agent (and to the extent specified
below, to each Bank) in form and substance:
(a) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of each Obligor and of all corporate
authority for each Obligor (including, without limitation, board of
director resolutions and evidence of the incumbency of officers) with
respect to the execution, delivery and performance of such of the Basic
Documents to which such Obligor is intended to be a party and each
other document to be delivered by such Obligor from time to time in
connection herewith and the Loans hereunder (and the Administrative
Agent and each Lender may conclusively rely on such certificate until
it receives notice in writing from such Obligor to the contrary).
(b) Officer's Certificate. A certificate of a senior
officer of the Company, dated the Effective Date, to the
effect set forth in the first sentence of Section 7.02
hereof.
(c) Borrowing Base Certificate. A Borrowing Base
Certificate as at June 30, 1995.
(d) Opinions of Counsel to the Obligors. (i) An opinion dated
the Effective Date, of Harter, Secrest & Emery, counsel to the
Obligors, in substantially the form of Exhibit E-1 hereto, (ii) an
opinion dated the Effective Date, of Sheppard, Mullin, Richter &
Hampton, special California counsel to the Obligors, in substantially
the form of Exhibit E-2 hereto, and (iii) an opinion dated the
Effective Date of Fulton, Hubbard & Hubbard, special Kentucky counsel
to the Obligors substantially in the form of Exhibit E-3 hereto and, in
each case covering such matters as any Bank may reasonably request.
Each Obligor hereby instructs each such counsel to deliver such opinion
to the Banks and the Administrative Agent.
(e) Opinion of Special New York Counsel to Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy, special
New York counsel to Chase in substantially the form of Exhibit F
hereto. Chase hereby instructs such counsel to deliver such opinion to
the Banks and the Administrative Agent.
(f) Notes. The Notes, duly completed and executed for
each Bank.
Credit Agreement
(g) Security Agreement Amendment. The Security Agreement
Amendment, duly executed and delivered by each Obligor and the
Administrative Agent and the certificates identified under the name of
such Obligor in Annex 1 thereto, in each case accompanied by undated
stock powers executed in blank. In addition, each Obligor shall have
taken such other action (including, without limitation, delivering to
the Administrative Agent, for filing, appropriately completed and duly
executed copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to perfect the
security interests created pursuant to the Security Agreement (as
amended by the Security Agreement Amendment).
(h) Mortgages; Title Insurance; etc. The following
documents each of which shall be executed (and, where
appropriate, acknowledged) by Persons satisfactory to the
Administrative Agent:
(i) with respect to each Mortgage, an
instrument of Modification and Confirmation pursuant to which
such Mortgage shall have been amended in form and substance
satisfactory to the Administrative Agent to spread the Lien
thereof to secure the obligations under this Agreement, in
each case duly executed, acknowledged and delivered by the
respective parties thereto, in recordable form (in such number
of copies as the Administrative Agent shall have requested);
and
(ii) mortgagee down-date continuation reports
for existing title policies issued pursuant to the Existing
Credit Agreement, subject only to such exceptions as are
satisfactory to each Bank and, to the extent necessary under
applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly
executed.
In addition, the Company shall have paid to the respective title
companies all expenses of such title companies in connection with the
issuance of the down-date continuation reports and in addition shall
have paid to such title companies an amount equal to the recording and
stamp taxes payable in connection with recording the respective
instruments of Modification and Confirmation in the appropriate county
land offices.
(i) Insurance. Certificates of insurance evidencing
the existence of all insurance required to be maintained by
Credit Agreement
the Company and its Subsidiaries pursuant to Section 9.04 hereof and
the designation of the Administrative Agent as the loss payee
thereunder to the extent required by said Section 9.04 in respect of
all insurance covering tangible Property, such certificates to be in
such form and contain such information as is specified in said Section
9.04. In addition, the Company shall have delivered (i) a certificate
of the chief financial officer of the Company setting forth the
insurance obtained by it and its Subsidiaries in accordance with the
requirements of Section 9.04 and stating that such insurance is in full
force and effect and that all premiums then due and payable thereon
have been paid and (ii) a written report, dated reasonably near the
Effective Date are being made, of Johnson & Higgins and Accordia of the
South, Inc. or any other firm of independent insurance brokers of
nationally recognized standing, as to such insurance and stating that,
in their opinion, such insurance adequately protects the interests of
the Administrative Agent and the Banks, is in compliance with the
provisions of said Section 9.04, and is comparable in all respects with
insurance carried by responsible owners and operators of Properties
similar to those covered by each of the Mortgages.
(j) Environmental Surveys. Environmental surveys and
assessments prepared by one or more firms of licensed engineers
(familiar with the identification of toxic and hazardous substances) in
form and substance satisfactory to Chase with respect to the facilities
to be acquired in connection with the Glenmore Acquisition, each such
environmental survey and assessment to be based upon physical on-site
inspections by such firms of each of such facilities, as well as a
historical review of the uses of such facilities and of the business
and operations of the Glenmore Entities. In addition, the Company shall
have completed (and delivered to the Administrative Agent)
environmental risk questionnaires with respect to all other facilities
owned, operated or leased by the Company and its Subsidiaries and
covered by environmental surveys and assessments delivered pursuant to
the Existing Credit Agreement, and the responses to such questionnaires
(and the underlying facts and circumstances shown thereby) shall be in
form and substance satisfactory to the Majority Banks.
(k) Solvency Analysis. A certificate from the chief
financial officer of the Company to the effect that, as of
the Effective Date and after giving effect to the Glenmore
Acquisition, the initial extension of credit hereunder and
to the other transactions contemplated hereby, (i) the
Credit Agreement
aggregate value of all Properties of the Company 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,
conceiving the latter as the amount which could be obtained for the
Property in question within such period by a capable and diligent
business person from an interested buyer who is willing to purchase
under ordinary selling conditions), exceeds the amount of all the debts
and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Company and its Subsidiaries, (ii) the
Company and its Subsidiaries will not, on a consolidated basis, have an
unreasonably small capital with which to conduct their business
operations as heretofore conducted and (iii) the Company and its
Subsidiaries will have, on a consolidated basis, sufficient cash flow
to enable them to pay their debts as they mature. The Administrative
Agent shall have also received opinions of value and other appropriate
factual information with respect to the Property and business being
acquired in the Glenmore Acquisition supporting the conclusions
described in clauses (i), (ii) and (iii) above (which opinions of value
shall not have been amended, modified or revoked).
(l) Pro Formas. A copy of an estimated pro forma balance sheet
of the Company and its Consolidated Subsidiaries, certified by the
chief financial officer of the Company as of the Effective Date, giving
effect to the Glenmore Acquisition, the initial extension of credit
hereunder and the other transactions contemplated hereby and showing a
financial condition of the Company and its Consolidated Subsidiaries in
form and substance satisfactory to Chase.
(m) Consummation of Acquisition. Evidence that (i) each of the
conditions precedent specified in the Glenmore Acquisition Documents
shall have been (or, concurrently with the making of the initial
extension of credit hereunder, shall be) in all material respects
satisfied (or, with the approval of the Majority Banks, waived), (ii)
each of Barton and the Company (and their Subsidiaries party thereto)
and the Glenmore Entities shall have performed in all material respects
all obligations to be performed by them under the Glenmore Acquisition
Documents on or prior to the Effective Date and (iii) the Glenmore
Acquisition is being consummated in accordance with the terms of the
Glenmore Acquisition Documents.
Credit Agreement
(n) Approvals. Evidence of receipt of all approvals from
governmental authorities with respect to the Glenmore Acquisition (or
the termination of waiting periods applicable thereto) necessary for
the Company and its Subsidiaries to conduct the business in respect of
the assets transferred pursuant to the Glenmore Acquisition Documents
as currently being conducted by the Glenmore Entities.
(o) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel
to the Banks may reasonably request.
The effectiveness of this Agreement (and the amendment and restatement of the
Existing Credit Agreement to be effected hereby), and the obligation of any Bank
to make its initial extension of credit hereunder, is also subject to the
payment by the Company of (i) all amounts owing to the Existing Banks and Chase
on the Effective Date pursuant to Sections 2.01(a), 2.01(b), 2.04(a) and 2.05(m)
hereof and (ii) such fees as the Company shall have agreed to pay or deliver to
any Bank or the Administrative Agent in connection herewith, including, without
limitation, the reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy,
special New York counsel to Chase, in connection with the negotiation,
preparation, execution and delivery of this Agreement and the other Basic
Documents and the extensions of credit hereunder (to the extent that statements
for such fees and expenses have been delivered to the Company).
7.02 Initial and Subsequent Extensions of Credit. The
-------------------------------------------
obligation of any Bank to make any Loan (including any Money
Market Loan and such Bank's initial Syndicated Loan) or otherwise
extend any credit to the Company upon the occasion of each
borrowing or other extension of credit hereunder is subject to
the further conditions precedent that, both immediately prior to
the making of such Loan or other extension of credit and also
after giving effect thereto and to the intended use thereof
(including, without limitation, in the case of the initial Loans
hereunder, after giving effect to the Glenmore Acquisition):
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the Company in
Section 8 hereof, and by each Obligor in each of the other Basic
Documents to which such Obligor is a party, shall be true and complete
on and as of the date of the making of such Loan or other extension of
credit with the same force and effect as if made on and as of such date
(or, if any such representation or warranty is expressly stated
Credit Agreement
to have been made as of a specific date, as of such specific
date); and
(c) the aggregate principal amount of the Revolving Credit
Loans and Money Market Loans, together with the aggregate amount of all
Letter of Credit Liabilities in respect of Revolving Letters of Credit,
shall not exceed the Borrowing Base reflected in the most recent
Borrowing Base Certificate delivered pursuant to Section 7.01(c) hereof
(in the case of the initial Loan hereunder) or Section 9.01(f) hereof
(in the case of any other Loan hereunder).
Each notice of borrowing by the Company or request for the issuance of a Letter
of Credit hereunder shall constitute a certification by the Company to the
effect set forth in the preceding sentence (both as of the date of such notice
and, unless the Company otherwise notifies the Administrative Agent prior to the
date of such borrowing or issuance, as of the date of such borrowing or
issuance).
Section 8. Representations and Warranties. The
Company represents and warrants to the Banks that:
8.01 Corporate Existence. Each of the Company and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could have a Material
Adverse Effect.
8.02 Financial Condition. The consolidated and consolidating
balance sheets of the Company and its Consolidated Subsidiaries as at August 31,
1994 and the related consolidated and consolidating statements of income,
retained earnings and of cash flow of the Company and its Consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon
(in the case of said consolidated balance sheet and statements) of Arthur
Andersen & Co., and the unaudited consolidated and consolidating balance
sheets of the Company and its Consolidated Subsidiaries as at May 31, 1995 and
the related consolidated and consolidating statements of income, retained
earnings and cash flow of the Company and its Consolidated Subsidiaries for the
nine-month period ended on such date, heretofore furnished to
Credit Agreement
each of the Banks, are complete and correct and fairly present the consolidated
financial condition of the Company and its Consolidated Subsidiaries, and (in
the case of said consolidating financial statements) the respective
unconsolidated financial condition of the Company and of each of its
Consolidated Subsidiaries, as at said dates and the consolidated and
unconsolidated results of their operations for the fiscal year and nine-month
period ended on said dates (subject, in the case of such financial statements
as at May 31, 1995, to normal year-end audit adjustments), all in accordance
with generally accepted accounting principles and practices applied on a
consistent basis. Neither the Company nor any of its Subsidiaries has on the
date hereof any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said balance sheets as at said dates. Since August 31, 1994, there has been no
material adverse change in the consolidated financial condition, operations,
business or prospects taken as a whole of the Company and its Consolidated
Subsidiaries from that set forth in said financial statements as at said date.
8.03 Litigation. Except as disclosed to the Banks in Schedule
IV hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of the Company) threatened against the Company or any of its
Subsidiaries, any of which, if adversely determined, could have a Material
Adverse Effect.
8.04 No Breach. None of the execution and delivery of this
Agreement and the Notes and the other Basic Documents, the consummation of the
Glenmore Acquisition, the issuance of the Barton Letter of Credit and the
transactions herein and in the other Basic Documents contemplated and compliance
with the terms and provisions hereof and thereof will conflict with or result in
a breach of, or require any consent under (other than consents in respect of the
Glenmore Acquisition that have been obtained), the charter or by-laws of any
Obligor, or any applicable law or regulation (including any applicable alcoholic
beverage law or regulation), or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or any of their Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or (except for the
Liens created pursuant to the Security Documents) result in the creation or
imposition of any Lien upon any Property of the
Credit Agreement
Company or any of its Subsidiaries pursuant to the terms of any such agreement
or instrument.
8.05 Power, Authority and Enforceability. Each Obligor has all
necessary corporate power, authority and legal right to execute, deliver and
perform its obligations under each of the Basic Documents to which it is a
party; the execution, delivery and performance by each Obligor of each of the
Basic Documents to which it is a party have been duly authorized by all
necessary corporate action on its part (including, without limitation, any
required shareholder approvals); and this Agreement has been duly and validly
executed and delivered by each Obligor and constitutes, and each of the other
Basic Documents to which such Obligor is a party when executed and delivered by
such Obligor (in the case of the Notes, for value) will constitute, its legal,
valid and binding obligation, enforceable against each Obligor in accordance
with its terms except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
8.06 Approvals. Each Obligor has, or prior to the Effective
Date will have, obtained all authorizations, approvals and consents of, and has
made all filings and registrations with, all governmental and regulatory
authorities, agencies and securities exchanges, in the case of the Glenmore
Acquisition Documents, necessary in any material respect, and in the case of
the other Basic Documents, necessary, for the execution, delivery or performance
by any Obligor of the Basic Documents to which such Obligor is a party or for
the legality, validity or enforceability thereof, except (a) for filings and
recordings in respect of the Liens created pursuant to the Security Documents,
(b) the filing pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of
1976 made by the Company with respect to the Glenmore Acquisition (as to which
the waiting period under said Act with respect to the Acquisition will have
expired prior to the Effective Date), and (c) the filing of a Form 8-K with the
Securities and Exchange Commission which filing will be timely made after the
consummation of the Glenmore Acquisition.
8.07 Use of Credit. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
Credit Agreement
8.08 ERISA. The Company and the ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions, pay annual PBGC premiums
or pay out benefits in the ordinary course of business).
8.09 Taxes. The Company and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal
income tax purposes, of which the Company is the "common parent" (within the
meaning of Section 1504 of the Code) of such group. The Company and its Subsidi-
aries have filed all Federal income tax returns and all other material tax
returns that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Company, adequate. The Company has not given
or been requested to give a waiver of the statute of limitations relating to the
payment of Federal, state, local and foreign taxes or other impositions.
8.10 Investment Company Act. Neither the Company nor
any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
8.11 Public Utility Holding Company Act. Neither the Company
nor any of its Subsidiaries is a "holding company", or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
8.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct
list, as of the date hereof, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the
Company or any of its Subsidiaries the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $200,000, 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 I.
Credit Agreement
(b) Part B of Schedule I hereto is a complete and correct
list, as of the date hereof, of each Lien securing Indebtedness of any Person
the aggregate principal or face amount of which equals or exceeds (or may equal
or exceed) $100,000 and covering any Property of the Company 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 I.
8.13 Environmental Matters. Each of the Company and its
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except as set forth in
Schedule II hereto (and except for any of the foregoing required to be obtained
after the date hereof, by reason of conditions or changes in Environmental Laws
occurring after the date hereof, where the failure to obtain the same would not
have a Material Adverse Effect). Each of such permits, licenses and authoriza-
tions is in full force and effect and each of the Company and its Subsidiaries
is in compliance with the terms and conditions thereof, and is also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except as set forth in Schedule II hereto
(and except for any of the foregoing required to be obtained after the date
hereof, by reason of conditions or changes in Environmental Laws occurring after
the date hereof, where the failure to obtain the same would not have a Material
Adverse Effect). In the judgment of the Company, no matter (either individually
or collectively with all other such matters) disclosed in Schedule II creates,
results in or has, or will create, result in or have, a Material Adverse Effect.
In addition, except as set forth in Schedule II hereto:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and, to the best of the Company's
knowledge, no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the
Company or any of its Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Company or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling,
Credit Agreement
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by the Company or any of its Subsidiaries, in each
case in circumstances which may reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries owns,
operates or leases a treatment, storage or disposal facility requiring
a permit under the Resource Conservation and Recovery Act of 1976, as
amended, or under any comparable state or local statute; and
(i) no polychlorinated biphenyls (PCB's) is or
has been present at any site or facility now or
previously owned, operated or leased by the Company or
any of its Subsidiaries;
(ii) no asbestos or asbestos-containing
materials is or has been present at any site or facility now
or previously owned, operated or leased by the Company or any
of its Subsidiaries;
(iii) there are no underground storage tanks or
surface impoundments for Hazardous Materials, active or
abandoned, at any site or facility now or previously owned,
operated or leased by the Company or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released
at, on or under any site or facility now or previously owned,
operated or leased by the Company or any of its Subsidiaries
in a reportable quantity established by statute, ordinance,
rule, regulation or order; and
(v) no Hazardous Materials have been otherwise
Released at, on or under any site or facility now or
previously owned, operated or leased by the Company or any of
its Subsidiaries;
that, in the case of any of clauses (i) through (v) above, may
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous
Material to any location that is listed on the National Priorities List
("NPL") under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"), listed for possible
inclusion on the NPL by the Environmental Protection Agency in the
Credit Agreement
Comprehensive Environmental Response and Liability Information System,
as provided for by 40 C.F.R. ss. 300.5 ("CERCLIS"), or on any similar
state or local list or that is the subject of Federal, state or local
enforcement actions or other investigations that may lead to
Environmental Claims in a material amount against the Company or any of
its Subsidiaries.
(d) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Company or any
of its Subsidiaries that may reasonably be expected to have a Material
Adverse Effect, and no site or facility now or previously owned,
operated or leased by the Company or any of its Subsidiaries is listed
or, to the best of the Company's knowledge, proposed for listing on the
NPL, CERCLIS or any similar state list of sites requiring investigation
or clean-up.
(e) No Liens have arisen under or pursuant to any
Environmental Laws on any site or facility owned, operated or leased by
the Company or any of its Subsidiaries, and no government action has
been taken or, to the best of the Company's knowledge, is in process
that could subject any such site or facility to such Liens and neither
the Company nor any of its Subsidiaries would be required to place any
notice or restriction relating to the presence of Hazardous Materials
at any site or facility owned by it in any deed to the real property on
which such site or facility is located.
(f) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in
the possession of the Company or any of its Subsidiaries in relation to
any site or facility now or previously owned, operated or leased by the
Company or any of its Subsidiaries which have not been made available
to the Banks.
8.14 Capitalization. The authorized capital stock of the
Company consists, as at the Effective Date, of an aggregate of 80,000,000 shares
consisting of (i) 60,000,000 shares of Class A common stock, par value $.01 per
share, of which 16,200,302 shares are duly and validly issued and outstanding
and 1,186,655 shares are issued and held in treasury, each of which shares is
fully paid and nonassessable and (ii) 20,000,000 shares of Class B common stock,
par value $.01 per share, of which 3,382,958 shares are duly and validly issued
and outstanding and 625,725 shares are issued and held in treasury, each of
which shares is fully paid and nonassessable.
Credit Agreement
As at the Effective Date, 10.99% of such issued and
outstanding shares of Class A common stock and 83.90% of such issued and
outstanding shares of Class B common stock are owned beneficially and of record
by (i) Marvin Sands, his spouse, his children or his grandchildren, (ii) a trust
which is for the benefit of Marvin Sands, his spouse, his children or his
grandchildren, which trust is under the control of Marvin Sands, his spouse, his
children or his grandchildren or (iii) a partnership which is controlled by (and
the partnership interests in which are owned by) Marvin Sands, his spouse or his
children or grandchildren or their spouses. As of the date hereof, (x) except
for conversion rights associated with the Class B common stock, purchase rights
associated with the Employee Stock Purchase Plan, options associated with the
Stock Option Plan and options listed on Schedule VII hereto, there are no
outstanding Equity Rights with respect to the Company and (y) there are no
outstanding obligations of the Company or any of its Subsidiaries to repurchase,
redeem, or otherwise acquire any shares of capital stock of the Company nor, are
there any outstanding obligations of the Company or any of its Subsidiaries to
make payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Company or any Subsidiary except for obligations of Barton in connection
with payments required under the Barton Phantom Stock Plan. The Company has
heretofore delivered to the Administrative Agent a complete and correct copy of
the Stock Option Plan as in effect on the date hereof.
8.15 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III hereto is a complete
and correct list, as of the date of this Agreement, of all of the Subsidiaries
of the Company, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part A of Schedule III hereto,
(x) each of the Company and its Subsidiaries owns, free and clear of Liens
(other than Liens created pursuant to the Security Documents), and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it in Part A of Schedule III hereto, (y) all of the issued
and outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no outstanding
Equity Rights with respect to such Person.
Credit Agreement
(b) Set forth in Part B of Schedule III hereto is a complete
and correct list, as of the date of this Agreement, of any Investment the amount
of which exceeds $200,000 (other than Investments of the types described in
clauses (b) through (h) of Section 9.08 hereof or disclosed in Part A of said
Schedule III hereto) held by the Company or any of its Subsidiaries in any
Person and, for each such Investment, (x) the identity of the Person or Persons
holding such Investment and (y) the nature of such Investment. Except as
disclosed in Part B of Schedule III hereto, each of the Company and its
Subsidiaries owns, free and clear of all Liens (other than Liens created
pursuant to the Security Documents), all such Investments.
(c) None of the Subsidiaries of the Company is, on the date of
this Agreement, subject to any indenture, agreement, instrument or other
arrangement of the type described in the last sentence of Section 9.14 hereof.
8.16 Real Property. Except with respect to leased space which
does not cost in excess of $10,000 per month in rental expense, set forth in
Schedule V attached hereto is a list, as of the date of this Agreement, of all
the real property interests held by the Company and its Subsidiaries (including
all real property to be owned by the Company and its Subsidiaries after giving
effect to the Glenmore Acquisition), indicating in each case whether the
respective Property is owned or leased, the identity of the owner or lessee and
the location of the respective Property.
8.17 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Company to the Administrative Agent or any Bank in connection with
the negotiation, preparation or delivery of this Agreement and the other Basic
Documents, or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole (together with the Information Memorandum) do not
(with respect to any such information, financial statements, exhibits and
schedules furnished to the Company by the Glenmore Entities in connection with,
in or pursuant to, the Glenmore Acquisition Documents to the best knowledge of
the Company) contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Company and its Subsidiaries
to the Administrative Agent and the Banks in connection with this Agreement and
the other Basic Documents and the transactions contemplated hereby and thereby
will be (with respect to any such information furnished to the
Credit Agreement
Company by the Glenmore Entities prior to the consummation of the Glenmore
Acquisition in connection with, in or pursuant to, the Glenmore Acquisition
Documents to the best knowledge of the Company) true, complete and accurate in
every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified.
There is no fact known to the Company that could have a Material Adverse Effect
that has not been disclosed herein, in the other Basic Documents, or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Banks for use in connection with the transactions
contemplated hereby or thereby.
8.18 Barton Acquisition. The Company has heretofore
delivered to each Bank a true and complete copy of the Barton
Stock Purchase Agreement as in effect on the date hereof.
8.19 Glenmore Acquisition. The Company has delivered to each
Bank, prior to the date hereof, a true and complete copy of the Glenmore
Acquisition Agreement as in effect on the date hereof. After the consummation of
the Glenmore Acquisition, Barton (or the respective Subsidiary of Barton
acquiring the same) will have good title to all of the assets purported to be
transferred to Barton (or such Subsidiary) pursuant to the Glenmore Acquisition
Agreement, free and clear of all Liens (other than Liens described in Section
8.12 hereof and permitted under Section 9.06 hereof) and Barton (or such
Subsidiary) will have good title to all of the assets acquired pursuant to the
Glenmore Acquisition, free and clear of all Liens.
Section 9. Covenants of the Company. The Company covenants and
agrees with the Banks and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Company hereunder:
9.01 Financial Statements Etc. The Company shall
deliver to each of the Banks:
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Company, consolidated statements of income,
retained earnings and cash flow of the Company and its Consolidated
Subsidiaries for such period and for the period from the beginning of
the respective fiscal year to the end of such period, and the related
consolidated balance sheet as at the end of such period, setting forth
in each case in comparative form the corresponding
Credit Agreement
consolidated figures for the corresponding period in the
preceding fiscal year, accompanied by a certificate of a senior
financial officer of the Company, which certificate shall state that
said consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Company and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and
for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, consolidated and
consolidating statements of income, retained earnings and cash flow of
the Company and its Consolidated Subsidiaries for such fiscal year and
the related consolidated and consolidating balance sheets as at the end
of such fiscal year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the preceding
fiscal year, and accompanied (i) in the case of said consolidated
statements and balance sheet, by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements
fairly present the consolidated financial condition and results of
operations of the Company and its Consolidated Subsidiaries as at the
end of, and for, such fiscal year in accordance with generally accepted
accounting principles, and a certificate of such accountants stating
that, in making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any Default,
and (ii) in the case of said consolidating statements and balance
sheets, by a certificate of a senior financial officer of the Company,
which certificate shall state that said consolidating financial
statements fairly present the respective individual unconsolidated
financial condition and results of operations of the Company and of
each of its Consolidated Subsidiaries, in each case in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such fiscal year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, which the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
Credit Agreement
(d) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to believe that any of the events
or conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a senior financial
officer of the Company setting forth details respecting such event or
condition and the action, if any, that the Company or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to the PBGC by the
Company or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which the PBGC has
not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of
such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of
ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section
412(m) of the Code or Section 302(e) of ERISA, shall be a
reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request
for waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of
ERISA of a notice of intent to terminate any Plan or any
action taken by the Company or an ERISA Affiliate to terminate
any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from
a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Company or any ERISA Affiliate
that results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser
Credit Agreement
default), or the receipt by the Company or any ERISA Affiliate
of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Company or any
ERISA Affiliate to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or Section
301 of ERISA, would result in the loss of tax-exempt status of
the trust of which such Plan is a part if the Company or an
ERISA Affiliate fails to timely provide security to the Plan
in accordance with the provisions of said Sections;
(f) as soon as available and in any event within 20 Business
Days after the end of each monthly accounting period (ending on the
last day of each calendar month), a Borrowing Base Certificate as at
the last day of such accounting period and from time to time as
requested by the Administrative Agent or the Majority Banks (but not
more frequently than twice in any fiscal year), a report of an
independent collateral auditor (which may be, or be affiliated with,
one of the Banks) with respect to the Eligible Receivables and Eligible
Inventory components included in the Borrowing Base as at the end of a
monthly accounting period, which report shall indicate that, based upon
a review by such auditors of the Eligible Receivables (including,
without limitation, verification with respect to the amount, aging,
identity and credit of the respective account debtors and the billing
practices of the Company and its Subsidiaries) and Eligible Inventory
(including, without limitation, verification as to the value, location
and respective types), the information set forth in the Borrowing Base
Certificate delivered by the Company as at the end of such accounting
period is accurate and complete in all material respects;
(g) promptly after the Company knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Company
has taken or proposes to take with respect thereto;
Credit Agreement
(h) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Bank or the Administrative Agent may
reasonably request.
The Company will furnish to each Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
senior financial officer of the Company (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Company is in compliance with Sections 9.07(f), 9.08(e), 9.08(i), 9.10 and 9.18
hereof as of the end of the respective quarterly fiscal period or fiscal year.
In addition, the Company will deliver to the Banks, promptly
upon receipt thereof, in each case to the extent not previously delivered, (i)
pursuant to Section 2.7 of the Barton Stock Purchase Agreement, copies of the
financial statements and other information therein referred to, as well as
copies of any EBIT Dispute Notice (as defined in the Barton Stock Purchase
Agreement) delivered by the Company to the Seller Representatives (as so
defined) pursuant to said Section 2.7, (ii) copies of all material notices and
information and all financial statements delivered by Vintners to the Company
under the Vintners Acquisition Agreement and (iii) copies of all material
notices and information and all financial statements delivered by any of the
Glenmore Entities to the Company under the Glenmore Acquisition Agreement,
including, without limitation, pursuant to Sections 1.8, 6.14 (including the
documents specified on Schedule 6.14 thereof), 8.3, 8.4 and 8.14 thereof.
9.02 Litigation. The Company will promptly give to the
Administrative Agent for prompt delivery by the Administrative Agent to each
Bank notice of all legal or arbitral proceedings, and of all proceedings, by or
before any governmental or regulatory authority or agency, and any material
development in respect of such legal or other proceedings, affecting the Company
or any of its Subsidiaries, except proceedings which, if adversely determined,
would not have a Material Adverse Effect. Without limiting the generality of the
foregoing, the Company will give to the Administrative Agent for delivery by the
Administrative Agent to each Bank notice of the assertion of any Environmental
Claim by any Person against, or
Credit Agreement
with respect to the activities of, the Company or any of its Subsidiaries and
notice of any alleged violation of or non-compliance with any Environmental Laws
or any permits, licenses or authorizations, other than any Environmental Claim
or alleged violation which, if adversely determined, would not have a Material
Adverse Effect.
9.03 Existence, Etc. The Company will, and will cause
each of its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly
permitted under Section 9.05 hereof);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
(including, without limitation, requirements under the relevant
statutes relating to alcoholic beverages) if failure to comply with
such requirements could have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto
(except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained) if failure to so
pay and discharge could have a Material Adverse Effect;
(d) maintain all of its Properties necessary to its
business in good working order and condition, ordinary wear
and tear excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) upon reasonable notice, permit representatives of any Bank
or the Administrative Agent, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect any of
its Properties, to discuss its business and affairs with its officers,
and to permit such representatives to gain access to any other
information in possession or obtainable by any of the Obligors for
purposes
Credit Agreement
of bi-annual collateral audits prepared for the Banks, all to the
extent reasonably requested by such Bank or the Administrative Agent
(as the case may be).
9.04 Insurance. The Company will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable insurers all
Property of a character usually insured by corporations engaged in the same or
similar business similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such corporations and carry such
other insurance as is usually carried by such corporations, provided that in any
event the Company will maintain the insurance required by the Security Documents
(and will name the Administrative Agent as loss payee to the extent provided
therein).
9.05 Prohibition of Fundamental Changes. The Company will not,
nor will it permit any of its Subsidiaries to, enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution). The Company will not, nor
will it permit any of its Subsidiaries to, acquire any business or Property
from, or capital stock of, or be a party to any acquisition of, any Person
except for the Glenmore Acquisition, purchases of inventory and other Property
to be sold or used in the ordinary course of business, Investments permitted
under Section 9.08 hereof and Capital Expenditures. The Company will not, nor
will it permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, any part
of its business or Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests, but excluding (i) sales
and other dispositions of Property so long as the amount thereof sold in any
single fiscal year by the Company and its Subsidiaries shall not have a fair
market value in excess of $10,000,000 and (ii) any inventory or other Property
sold or disposed of in the ordinary course of business and on ordinary business
terms). Notwithstanding the foregoing provisions of this Section 9.05:
(a) any Subsidiary of the Company may be merged or
consolidated with or into: (i) the Company if the Company shall be the
continuing or surviving corporation or (ii) any Wholly Owned
Subsidiary; provided that in any such transaction, the Wholly Owned
Subsidiary shall be the continuing or surviving corporation;
(b) any such Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon
Credit Agreement
voluntary liquidation or otherwise) to the Company or a
Wholly Owned Subsidiary of the Company;
(c) the Company or any Subsidiary of the Company may merge or
consolidate with any other Person if (i) in the case of a merger or
consolidation of the Company, the Company is the surviving corporation
and, in any other case, the surviving corporation is a Wholly Owned
Subsidiary of the Company and (ii) after giving effect thereto no
Default would exist hereunder;
(d) the Company may (either directly, or indirectly through
its Wholly Owned Subsidiaries) acquire the business or Property from,
or capital stock of, or enter into a joint venture with, or be a party
to an acquisition of another Person, so long as at the time thereof and
after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing hereunder and the Company shall have
delivered to the Administrative Agent a certificate of its chief
financial officer to such effect; provided that the Company will not
use more than $50,000,000 of the proceeds of the Revolving Credit Loans
to fund any such transaction and/or pay any related fees or expenses;
(e) the Company may (either directly, or indirectly through
its Wholly Owned Subsidiaries) sell, lease, transfer or otherwise
dispose of the following facilities and related assets:
(i) the California Products facility located
in Fresno, California, which is currently owned by
California Products Company;
(ii) the Tenner Brothers facility located in
Patrick, South Carolina, which is currently owned by Tenner
Brothers, Inc.;
(iii) the Madera Wine Cellars facility located
in Madera, California, which is currently owned by Bisceglia
Brothers Wine Co.;
(iv) the Central Cellars facility located in
Lodi, California, which is currently owned by Guild Wineries &
Distilleries, Inc.; and
(v) the Soledad Cellars facility located in
Soledad, California, which is currently owned by Vintners
International Company, Inc.
Credit Agreement
(f) the Company may, for the purpose of transferring its
jurisdiction of incorporation from Delaware to another state of
incorporation, merge with and into a Wholly Owned Subsidiary in a
transaction constituting a tax-free reorganization under 368(a)(1)(F)
of the Code, so long as:
(x) the Company shall give the Banks and the
Administrative Agent at least 15 days prior written notice of
the occurrence of such merger;
(y) such Subsidiary shall execute and deliver an
instrument in form and substance satisfactory to each Bank and
the Administrative Agent pursuant to which such Subsidiary
shall, effective upon such merger, assume all of the
obligations of the Company hereunder, under the Notes and
under the Security Documents (and execute and deliver such
other instruments as the Administrative Agent shall request to
ensure the continued perfection and priority of any Liens
granted by the Company pursuant to the Security Documents);
and
(z) such Subsidiary shall deliver such proof of
corporate action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by
the Company pursuant to Section 7.01 hereof upon the Effective
Date or as any Bank or the Administrative Agent shall have
requested; and
(g) the Company may, for the purpose of making itself a Wholly
Owned Subsidiary of a new holding company (herein the "Holding
Company"), enter into a transaction of merger or consolidation with
another entity or transfer its assets to another entity (such entity,
in either such case, being herein called the "New Company"), so long
as:
(u) the Company shall give the Banks and the
Administrative Agent at least 15 days prior written notice of
the occurrence of such transaction (which notice shall specify
the manner and timing in which such transaction is to occur);
(v) in such transaction the shareholders of the
Company shall receive in exchange for the shares of stock in
the Company held by them immediately prior to such transaction
newly-issued shares of stock in the Holding Company
representing substantially the same respective percentage
ownership interests in the Holding Company as such
shareholders held in the Company immediately prior to such
transaction;
Credit Agreement
\
(w) immediately after giving effect to such
transaction, the Company (or the New Company, as the case may
be) shall be a Wholly Owned Subsidiary of the Holding Company;
(x) in the event that such transaction constitutes
a merger with a New Company in which the Company is not the
surviving entity or such transaction involves the transfer by
the Company of its assets to a New Company, the New Company
shall execute and deliver an instrument in form and substance
satisfactory to each Bank and the Administrative Agent
pursuant to which the New Company shall, effective upon such
transaction, assume all of the obligations of the Company
hereunder, under the Notes and under the Security Documents
(and execute and deliver such other instruments as the
Administrative Agent shall request to ensure the continued
perfection and priority of any Liens granted by the Company
pursuant to the Security Documents);
(y) the Holding Company shall execute and deliver an
instrument in form and substance satisfactory to each Bank and
the Administrative Agent pursuant to which the Holding Company
shall, effective upon such transaction, guarantee all of the
obligations of the Company (or the New Company, as the case
may be) hereunder, under the Notes and under the Security
Documents and pledge all of the shares of stock held by it in
the Company (or the New Company, as the case may be) and shall
take such further action as the Administrative Agent shall
request to ensure the perfection and priority of any Liens
granted by the Holding Company pursuant to such instrument;
and
(z) the Holding Company and the Company (or the New
Company, as the case may be) shall each deliver such proof of
corporate action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by
the Company pursuant to Section 7.01 hereof upon the Effective
Date or as any Bank or the Administrative Agent shall have
requested.
9.06 Limitations on Liens. The Company will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
Credit Agreement
(a) Liens created pursuant to the Security Documents
(and, prior to the Effective Date, Liens securing the
Existing Loans);
(b) Liens in existence on the date hereof and listed
in Parts A and B of Schedule I hereto;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the affected
Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings
and Liens securing judgments but only to the extent, for an amount and
for a period not resulting in an Event of Default under Section 10(h)
hereof;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security
legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the value of the
Property subject thereto, or interfere with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(h) Liens upon tangible personal Property acquired after the
date hereof by the Company or any of its Subsidiaries, each of which
Liens either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof, or (B) was
created solely for the purpose of securing Indebtedness permitted under
Credit Agreement
Section 9.07(f) hereof representing, or incurred to finance, refinance
or refund, the cost of such Property; provided that no such Lien shall
extend to or cover any Property of the Company or such Subsidiary other
than the Property so acquired and improvements thereon; and provided,
further, that the principal amount of Indebtedness secured by any such
Lien shall at no time exceed 80% of the fair market value (as
determined in good faith by a senior financial officer of the Company)
of such Property at the time it was acquired; and
(i) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or Property (other than a
substitution of like Property).
9.07 Indebtedness. The Company will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness of the Company or any of its
Subsidiaries to the Banks hereunder (and, prior to the
Effective Date, the Existing Loans);
(b) Indebtedness of the Company or any of its
Subsidiaries outstanding on the date hereof and listed in
Part A of Schedule I hereto;
(c) Subordinated Indebtedness;
(d) Indebtedness of Subsidiaries of the Company to the
Company or to other Subsidiaries of the Company;
(e) Indebtedness of the Company or any of its Subsidiaries
of the type described in clause (f) of the definition of "Indebtedness"
in Section 1.01 hereof to the extent that the aggregate principal
amount of all obligations Guaranteed by the Company and/or any of its
Subsidiaries does not exceed $8,000,000;
(f) additional Indebtedness of the Company up to but
not exceeding $4,000,000 at any one time outstanding; and
(g) Guarantees by the Company and its Subsidiaries of
Indebtedness of the Company and its Subsidiaries.
Credit Agreement
9.08 Investments. The Company will not, and will not permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and
identified in Schedule III Part B hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Company and its Wholly Owned
Subsidiaries in Wholly Owned Subsidiaries of the Company;
(e) Interest Rate Protection Agreements so long as the
aggregate credit exposure under all Interest Rate Protection Agreements
calculated at the time any Interest Rate Protection Agreement is
entered into does not exceed $1,000,000 (but without limiting its
obligations under Section 9.11 hereof);
(f) Investments permitted pursuant to clause (d) of
the last sentence of Section 9.05 hereof;
(g) Investments consisting of security deposits with
utilities and other like Persons made in the ordinary course
of business;
(h) Investments consisting of forward foreign exchange
contracts entered into by the Company or its Subsidiaries in connection
with hedging transactions in the ordinary course of business but
excluding any such transactions which are speculative in nature;
(i) Investments by the Company and its Subsidiaries in Joint
Venture Entities (and Investments by Joint Venture Entities in other
Persons), so long as the aggregate amount of all Investments by the
Company and its Subsidiaries in Joint Venture Entities shall not exceed
$10,000,000 in the aggregate at any one time outstanding;
(j) additional Investments by the Company (excluding,
however, Investments in Joint Venture Entities) up to but
not exceeding $6,000,000 at any one time outstanding; and
(k) the Senior Subordinated Note Guarantees.
The aggregate amount of an Investment at any one time outstanding
for purposes of clauses (i) and (j) above, shall be deemed to be
Credit Agreement
equal to (A) the aggregate amount of cash, together with the aggregate fair
market value of Property, loaned, advanced, contributed, transferred or
otherwise invested that gives rise to such Investment minus (B) the aggregate
amount of dividends, distributions or other payments received in cash in respect
of such Investment; the amount of an Investment shall not in any event be
reduced by reason of any write-off of such Investment nor increased by any
increase in the amount of earnings retained in the Person in which such
Investment is made that have not been dividended, distributed or otherwise paid
out.
9.09 Dividend Payments. The Company will not, and will not
permit any of its Subsidiaries to, declare or make any Dividend Payment at any
time other than Dividend Payments in respect of (i) stock appreciation rights as
contemplated by the Stock Option Plan in an aggregate amount not exceeding
$500,000 in any fiscal year and (ii) payments under the Barton Phantom Stock
Plan in an aggregate amount not exceeding $4,500,000 during the term of this
Agreement. Nothing herein shall be deemed to prohibit the payment of any
dividends by Subsidiaries to the Company and other Subsidiaries.
9.10 Certain Financial Covenants.
(a) Debt Ratio. The Company will not permit the Debt
Ratio to exceed the following respective ratios at any time
during the following respective periods:
Period Ratio
From 9/1/95 through 11/30/95 5.75 to 1
From 12/1/95 through 2/28/96 5.50 to 1
From 3/1/96 through 5/31/96 5.25 to 1
From 6/1/96 through 8/31/96 5.00 to 1
From 9/1/96 through 11/30/96 4.75 to 1
From 12/1/96 through 2/28/97 4.75 to 1
From 3/1/97 through 5/31/97 4.50 to 1
From 6/1/97 through 8/31/97 4.50 to 1
From 9/1/97 through 11/30/97 4.25 to 1
From 12/1/97 through 2/28/98 4.25 to 1
From 3/1/98 through 5/31/98 4.00 to 1
From 6/1/98 through 8/31/98 4.00 to 1
From 9/1/98 through 11/30/98 3.75 to 1
From 12/1/98 through 2/28/99 3.75 to 1
From 3/1/99 and at all
times thereafter 3.50 to 1
Credit Agreement
(b) Tangible Net Worth. The Company will not permit
Tangible Net Worth to be less than the following respective
amounts at any time during the following respective periods:
Period Amount
From 9/1/95 through 11/30/95 $ 85,000,000
From 12/1/95 through 2/28/96 $ 85,000,000
From 3/1/96 through 5/31/96 $100,000,000
From 6/1/96 through 8/31/96 $110,000,000
From 9/1/96 through 11/30/96 $125,000,000
From 12/1/96 through 2/28/97 $145,000,000
From 3/1/97 through 5/31/97 $160,000,000
From 6/1/97 through 8/31/97 $184,000,000
From 9/1/97 through 11/30/97 $195,000,000
From 12/1/97 through 2/28/98 $206,000,000
From 3/1/98 through 5/31/98 $217,000,000
From 6/1/98 through 8/31/98 $229,000,000
From 9/1/98 through 11/30/98 $240,000,000
From 12/1/98 through 2/28/99 $251,000,000
From 3/1/99 through 5/31/99 $262,000,000
From 6/1/99 through 8/31/99 $274,000,000
From 9/1/99 through 11/30/99 $285,000,000
From 12/1/99 through 2/28/00 $296,000,000
From 3/31/00 through 5/31/00 $308,000,000
From 6/1/00 and at all
times thereafter $319,000,000
(c) Fixed Charges Ratio. The Company will not permit
the Fixed Charges Ratio to be less than 1.00 to 1 as at the last
day of each fiscal quarter of each fiscal year.
(d) Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio to be less than the following
respective ratios at any time during the following respective
periods:
Period Ratio
From 9/1/95 through 8/31/96 2.80 to 1
From 9/1/96 through 8/31/97 2.90 to 1
From 9/1/97 through 8/31/98 3.00 to 1
From 9/1/98 and at all times
thereafter 3.25 to 1
9.11 Interest Rate Protection Agreements. The Company
will within 60 days of the Effective Date and at all times
thereafter until August 31, 1997 maintain in full force and
effect one or more Interest Rate Protection Agreements with one
Credit Agreement
or more of the Banks (and/or with a bank or other financial institution having
capital, surplus and undivided profits of at least $500,000,000), which
effectively enables the Company (in a manner satisfactory to the Majority
Banks), to protect itself against three-month London interbank offered rates
exceeding 8.75% per annum as to a notional principal amount at least equal to
the following respective amounts at the following respective dates:
Fiscal Year Ended Amount
August 31, 1996 $ 60,000,000
August 31, 1997 $ 40,000,000
9.12 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Company will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, guarantees and assumptions of obligations of an
Affiliate); provided that (x) any Affiliate who is an individual may serve as a
director, officer or employee of the Company or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity and (y)
the Company and its Subsidiaries may enter into transactions (other than
extensions of credit by the Company or any of its Subsidiaries to an Affiliate)
providing for the leasing of Property, the rendering or receipt of services or
the purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Company and its Subsidiaries as the
monetary or business consideration which would obtain in a comparable
transaction with a Person not an Affiliate. During any period that the Company
is a public company regulated by, and required to file regular periodic reports
with, the Securities and Exchange Commission, any compensation paid to an
executive officer of the Company (who is an Affiliate) which has been
specifically approved by the board of directors of the Company during such
period will be deemed to be reasonable for purposes of the foregoing.
Notwithstanding the foregoing, the Company may enter into so-called split-dollar
life insurance agreements substantially in the form of Schedule VI hereto, so
long as the aggregate amount of premiums payable by the Company during any
fiscal year pursuant to such agreements shall not exceed $2,000,000 in the
aggregate.
Credit Agreement
9.13 Use of Proceeds. The Company will use the proceeds of the
Loans hereunder solely to (a) finance the Glenmore Acquisition, (b) provide
working capital for the Company and its Subsidiaries and (c) pay the expenses
relating to the Glenmore Acquisition and the consummation of the transactions
contemplated hereby (in compliance with all applicable legal and regulatory
requirements); provided that, neither the Administrative Agent nor any Bank
shall have any responsibility as to the use of any of such proceeds.
9.14 Certain Obligations Respecting Subsidiaries. The
Company will, and will cause each of its Subsidiaries to, take such action from
time to time as shall be necessary to ensure that each of its Subsidiaries
(other than Joint Venture Entities) is a Wholly-Owned Subsidiary. The Company
will not permit any of its Subsidiaries (other than Joint Venture Entities) to
enter into, after the date of this Agreement, any indenture, agreement,
instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of Indebtedness,
the granting of Liens, the declaration or payment of dividends, the making of
loans, advances or Investments or the sale, assignment, transfer or other
disposition of Property.
9.15 Additional Subsidiary Guarantors. The Company will take
such action, and will cause each of its Subsidiaries to take such action, from
time to time as shall be necessary to ensure that all Subsidiaries of the
Company (other than Inactive Subsidiaries and Joint Venture Entities) are
Subsidiary Guarantors and, thereby, "Obligors" hereunder. Without limiting the
generality of the foregoing, in the event that the Company or any of its
Subsidiaries shall form any new Subsidiary after the date hereof which the
Company or the respective Subsidiary anticipates will not be an Inactive
Subsidiary or a Joint Venture Entity (or, in the event that any Inactive
Subsidiary or Joint Venture Entity shall cease to be an Inactive Subsidiary or
Joint Venture Entity), the Company or the respective Subsidiary will cause such
new Subsidiary (or such Inactive Subsidiary or Joint Venture Entity which ceases
to be an Inactive Subsidiary or Joint Venture Entity) to become a "Subsidiary
Guarantor" (and, thereby, an "Obligor") hereunder pursuant to a written
instrument in form and substance satisfactory to each Bank and the
Administrative Agent, and to deliver such proof of corporate action, incumbency
of officers, opinions of counsel and other documents as is consistent with those
delivered by each Obligor pursuant to Section 7.01 hereof upon the Effective
Date or as any Bank or the Administrative Agent shall have requested.
Credit Agreement
9.16 Modifications of Certain Documents. The Company will not,
and will not permit any of its Subsidiaries to, (i) consent to any modification,
supplement or waiver of any of the provisions of the Barton Stock Purchase
Agreement (excluding adjustments agreed to by the Seller Representative, under
and as defined in the Barton Stock Purchase Agreement, and the Company pursuant
to Section 2.1(e) of the Barton Stock Purchase Agreement) or (ii) consent to any
modification, supplement or waiver in any material respect of the Glenmore
Acquisition Documents without, in the case of either of clauses (i) or (ii)
above, the prior consent of the Administrative Agent (with the approval of the
Majority Banks). In addition, notwithstanding the provisions of clause (f) or
(g) of the last sentence of Section 9.05 hereof, the Company will not consent to
any modification, supplement or waiver of its Certificate of Incorporation as in
effect on the date hereof without the prior consent of the Administrative Agent
(with the approval of the Majority Banks).
9.17 Subordinated Indebtedness. The Company may after the date
hereof incur additional Subordinated Indebtedness subject to the following
conditions each of which shall have been fulfilled in form and substance
satisfactory to the Majority Banks:
(a) such Indebtedness shall be subordinated to the obligations
of the Company to pay principal of and interest on the Loans, the
Reimbursement Obligations and all other amounts payable hereunder on
terms in form and substance satisfactory to the Majority Banks, it
being understood that the terms and provisions of the Senior
Subordinated Note Indenture are satisfactory to the Majority Banks;
(b) such Indebtedness shall be an obligation of the Company
only, and none of its Subsidiaries shall be contingently or otherwise
obligated in respect thereof, unless subordinated to the obligations of
such Subsidiary to pay principal of and interest on the Loans, the
Reimbursement Obligations and all other amounts payable hereunder on
terms in form and substance satisfactory to the Majority Banks, it
being understood that the terms and provisions of the Senior
Subordinated Note Indenture are satisfactory to the Majority Banks;
(c) the aggregate principal amount of such Indebtedness
together with the aggregate principal amount of all other Subordinated
Indebtedness of the Company shall not exceed $280,000,000 at any one
time (including interest that will accrue after the date of issuance);
Credit Agreement
(d) to the extent required pursuant to Section 2.12(f) hereof,
proceeds of such Indebtedness shall be applied to prepay Loans (and/or
provide cover for the Letter of Credit Liabilities) in the manner
provided in said Section 2.12(f), provided that in the event any such
proceeds shall be applied to refinance other Subordinated Indebtedness,
the aggregate principal amount of any such refinancing Subordinated
Indebtedness shall not exceed the aggregate principal amount, plus
accrued interest and premium, if any, on the Subordinated Indebtedness
being refinanced;
(e) the terms of such Indebtedness shall not provide for
payment of any portion of the principal thereof prior to the date six
months after the final maturity of the Loans hereunder;
(f) at the time of issuance of such Indebtedness, and after
giving effect thereto, the Interest Coverage Ratio shall not be less
than the ratio in effect at that time as set out in Section 9.10(c)
hereof (Interest Expense for such purpose to be calculated under the
assumption that such Indebtedness was issued at the beginning of such
period and that any other Indebtedness to be retired with the proceeds
thereof was in fact retired on such date of issuance);
(g) terms in respect of financial and other covenants, events
of default and mandatory prepayments applicable to such Indebtedness
shall have been reasonably determined by the Majority Banks to be terms
that are at the time customary in the market for subordinated debt
being incurred by borrowers, and in transactions, comparable in the
reasonable judgment of the Majority Banks to the Company and proposed
debt issuance, it being understood that the terms in respect of
financial and other covenants, events of default and mandatory
prepayments included in the Senior Subordinated Note Indenture are, in
the judgment of the Majority Banks, comparable to those customary in
such market;
(h) at the time of issuance of such Indebtedness, and after
giving effect thereto, the Company shall be in compliance with Section
9.10 hereof (the determination of such ratios (and such amount with
respect to Tangible Net Worth) to be calculated under the assumption
that such Indebtedness was issued, at the beginning of such period and
that any other Indebtedness to be retired with the proceeds thereof was
in fact retired on such date of issuance), and the Company shall have
delivered to the Administrative Agent a certificate of its chief
financial officer to such effect
Credit Agreement
setting forth in reasonable detail the computations
necessary to determine such compliance; and
(i) at the time of such issuance, and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing hereunder and the Company shall have delivered to the
Administrative Agent a certificate of its chief financial officer to
such effect.
Neither the Company nor any of its Subsidiaries shall
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 owing in respect of, any
Subordinated Indebtedness, except that the Company may (i) make payments on the
regularly-scheduled payment dates with respect to the principal of and interest
on the Subordinated Indebtedness as in effect on the date hereof (or, as to any
Subordinated Indebtedness issued after the date hereof, as originally in
effect), and (ii) so long as no Default shall have occurred and be continuing
(or will occur as a result of such payment), from the proceeds of Subordinated
Indebtedness issued in accordance with the first paragraph of this Section 9.17,
redeem Subordinated Indebtedness that is being refinanced as contemplated in
clause (d) of the first paragraph of this Section 9.17. Neither the Company nor
any of its Subsidiaries will consent to any modification, supplement or waiver
of any of the provisions of any Subordinated Indebtedness without the prior
consent of the Administrative Agent (with the approval of the Majority Banks).
9.18 Eligible Inventory Located in Off-Premises Warehouses.
The Company will not, nor will it permit any of its Subsidiaries to, maintain
Eligible Inventory at Off-Premises Warehouses in an amount in excess of
$50,000,000 (as to the Company and all Subsidiaries) at any time unless either
(a) the amount of such excess is subtracted from the amount of Eligible
Inventory in determining the Borrowing Base or (b) the Company or such
Subsidiary has taken such steps as are necessary to ensure that the Banks have a
valid prior perfected security interest in such Eligible Inventory (including,
without limitation, the filing of an appropriate uniform commercial code
financing statement in the respective jurisdiction in which such Eligible
Inventory is located naming the Company or such Subsidiary as "secured party"
and the delivery of satisfactory evidence that such an arrangement constitutes a
consignment or first priority perfected security interest under applicable law
and that such security interest has been validly assigned to the Administrative
Agent under the Security Agreement).
Credit Agreement
Section 10. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur
and be continuing:
(a) The Company or any Subsidiary Guarantor shall default in
the payment when due (whether at stated maturity or at mandatory or
optional prepayment) of any principal of any Loan or any Reimbursement
Obligation; or the Company or any Subsidiary Guarantor shall default in
the payment when due of any interest on any Loan or any Reimbursement
Obligation, or any fee or any other amount payable by it hereunder or
under any other Basic Document and such default shall continue
unremedied for two (or more) Business Days; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness, or in the payment when due of any amount under any
Interest Rate Protection Agreement, or in the payment when due of any
amount under the Barton Stock Purchase Agreement, provided that such
payment due and owing is in an amount greater than or equal to
$100,000; or any event specified in any note, agreement, indenture or
other document evidencing or relating to Indebtedness in an aggregate
principal amount greater than or equal to $100,000 or any event
specified in any Interest Rate Protection Agreement shall occur (and
shall continue beyond any applicable period of grace) if the effect of
such event is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset
to a level so that securities evidencing such Indebtedness trade at a
level specified in relation to the par value thereof or, in the case of
an Interest Rate Protection Agreement, to permit the payments owing
under such Interest Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made or
deemed made in any Basic Document (or in any modification or supplement
thereto) by any Obligor, or any certificate furnished to any Bank or
the Administrative Agent pursuant to the provisions thereof, shall
prove to have been false or misleading as of the time made or furnished
if the effect thereof could have a Material Adverse Effect; or any
representation or warranty made or deemed made in the Glenmore
Acquisition Documents by any of the Glenmore Entities, or any
certificate furnished to the Company
Credit Agreement
pursuant to the provisions of any thereof, shall prove to have been
false or misleading as of the time made or furnished if the effect
thereof could have a Material Adverse Effect; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 9.01(f), 9.01(g), 9.05, 9.06, 9.07,
9.08, 9.09, 9.10, 9.17 or 9.18 hereof or any Obligor shall default in
the performance of any of its obligations under Section 5.02 of the
Security Agreement or any provisions of Section 1.03, 1.04 or 1.11 of
the Mortgages; or any Obligor shall default in the performance of any
of its other obligations in this Agreement or any other Basic Document
and such default shall continue unremedied for a period of 45 (or more)
days after notice thereof to the Company by the Administrative Agent or
any Bank (through the Administrative Agent); or
(e) The Company or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) The Company or any of its Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of
all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code or
(vi) take any corporate action for the purpose of effecting any of the
foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Subsidiaries, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition
or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the Company or
such Subsidiary or of all or any substantial part of its Property, or
(iii) similar relief in respect of the Company or such Subsidiary under
any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition
Credit Agreement
or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against the
Company or such Subsidiary shall be entered in an involuntary case
under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in
excess of $500,000 in the aggregate (exclusive of judgment amounts
fully covered by insurance where the insurer has admitted liability in
respect of such judgment) or in excess of $5,000,000 in the aggregate
(regardless of insurance coverage) shall be rendered by a one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Company and/or any of its Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge),
or a stay of execution thereof shall not be procured, within 45 days
from the date of entry thereof and the Company or the relevant
Subsidiary shall not, within said period of 45 days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof
shall occur or exist with respect to any Plan or Multiemployer Plan
and, as a result of such event or condition, together with all other
such events or conditions, the Company or any ERISA Affiliate shall
incur or in the opinion of the Majority Banks shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan or the PBGC
(or any combination of the foregoing) which would constitute, in the
reasonable determination of the Majority Banks, a Material Adverse
Effect; or
(j) A reasonable basis shall exist for the assertion against
the Company or any of its Subsidiaries of (or there shall have been
asserted against the Company or any of its Subsidiaries) claims or
liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal
of Hazardous Materials by the Company or any of its Subsidiaries or
Affiliates, or any predecessor in interest of the Company or any of its
Subsidiaries or Affiliates, or relating to any site or facility owned,
operated or leased by the Company or any of its Subsidiaries or
Affiliates, which claims or liabilities (insofar as they are payable by
the Company or any of its Subsidiaries but after deducting
Credit Agreement
any portion thereof which is reasonably expected to be paid by other
creditworthy Persons jointly and severally liable therefor), in the
judgment of the Majority Banks are reasonably likely to be determined
adversely to the Company or any of its Subsidiaries, and the amount
thereof is, singly or in the aggregate, reasonably likely to have a
Material Adverse Effect; or
(k) Common stock of the Company (after giving effect to the
exercise of all outstanding Equity Rights), having by its terms voting
power to elect at least 50% (in number of votes) of the board of
directors of the Company, shall cease to be owned in the aggregate by
(i) Marvin Sands, his spouse, his children or his grandchildren, (ii) a
trust for the benefit of Marvin Sands, his spouse, his children or his
grandchildren, which trust is under the control of Marvin Sands, his
spouse, his children or his grandchildren or (iii) a partnership which
is controlled by (and the partnership interests in which are owned by)
Marvin Sands, his spouse or his children or his grandchildren or their
spouses or by a trust referred to in the foregoing clause (ii); or a
"Change in Control" under and as defined in the Barton Stock Purchase
Agreement shall occur and be continuing; or
(l) The face amount of the Barton Letter of Credit shall not
be reduced on any date in the respective amount specified in Section
2.12(a) of the Barton Stock Purchase Agreement for such date;
THEREUPON:
(1) in the case of an Event of Default other than one referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor,
the Administrative Agent may, by notice to the Company, terminate the
Commitments and/or terminate the Barton Letter of Credit (as provided
therein) and/or declare all or any portion of the principal amount then
outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and other amounts payable by the Obligors
hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 hereof) to be forthwith due and
payable (provided that (x) if so requested by the Majority Revolving
Credit Banks or, with respect to Swingline Loans, by the Swingline
Bank, the Administrative Agent shall take such action with respect to
the Revolving Credit Commitments and/or the Revolving Credit Loans,
Reimbursement Obligations in respect of Revolving Letters of Credit,
Swingline Loans, Money Market Loans and
Credit Agreement
such interest and other amounts to the extent owed to the Revolving
Credit Banks, or the Swingline Bank, as the case may be, (y) if so
requested by the Majority Term Banks, the Administrative Agent shall
take such action with respect to the Term Loan Commitments and the Term
Loans and such interest and other amounts to the extent owed to the
Term Loan Banks and (z) if so requested by the Majority Barton Letter
of Credit Banks, the Administrative Agent shall take such action with
respect to the Barton Letter of Credit Commitments and the termination
of the Barton Letter of Credit (as provided therein) and/or the
Reimbursement Obligations in respect of the Barton Letter of Credit and
such interest and other amounts to the extent owed to the Barton Letter
of Credit Banks), whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by each Obligor; and
(2) in the case of the occurrence of an Event of Default
referred to in clause (f) or (g) of this Section 10 with respect to any
Obligor, the Commitments shall automatically be terminated and all of
the principal amount then outstanding of, and the accrued interest on,
the Loans, the Reimbursement Obligations and all other amounts payable
by the Obligors hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 hereof) shall
automatically become immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor (and the Administrative Agent
may terminate the Barton Letter of Credit as provided therein).
In addition, upon the occurrence and during the continuance of
any Event of Default (if the Administrative Agent has declared the principal
amount then outstanding of, and accrued interest on, the Revolving Credit Loans
and/or the Barton Letter of Credit Loans and all other amounts payable by the
Company hereunder and under the Notes to be due and payable), the Company agrees
that it shall, if requested by the Administrative Agent or the Majority
Revolving Credit Banks or the Majority Barton Letter of Credit Banks, as the
case may be, through the Administrative Agent (and, in the case of any Event of
Default referred to in clause (f) or (g) of this Section 10 with respect to the
Company, forthwith, without any demand or the taking of any other action by the
Administrative Agent or such Banks) provide cover for the Letter of Credit
Liabilities by paying to the Administrative Agent immediately available funds in
an amount equal to the then aggregate undrawn face amount of all effected
Letters of Credit, which funds shall be held by the
Credit Agreement
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to withdrawal
only as therein provided.
Section 11. The Administrative Agent.
11.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Basic Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and of the other Basic Documents, together with such other powers as
are reasonably incidental thereto. The Administrative Agent (which term as used
in this sentence and in Section 11.05 and the first sentence of Section 11.06
hereof shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Basic Documents,
and shall not by reason of this Agreement or any other Basic Document
be a trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Basic Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement, any Note or any other Basic Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Basic Document or any other document
referred to or provided for herein or therein or for any failure by the
Company or any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Basic
Document (except for the exercise of remedies under the Security
Documents, as expressly provided therein); and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Basic Document or under
any other document or instrument referred to or provided for herein or
therein or in connection
Credit Agreement
herewith or therewith, except for its own gross negligence
or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or attorneys-
in-fact selected by it in good faith. The Administrative Agent may deem and
treat the payee (or Registered Holder, as the case may be) of any Note as the
holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent, together with the consent of the Company to such assignment or transfer
(to the extent provided in Section 12.06(b) hereof).
11.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Administrative Agent. As to any matters not expressly
provided for by this Agreement or any other Basic Document, the Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Majority Banks or, if provided herein, in accordance with the instructions given
by the Majority Revolving Credit Banks, the Majority Term Banks or all of the
Banks as is required in such circumstance, and such instructions of such Banks
and any action taken or failure to act pursuant thereto shall be binding on all
of the Banks.
11.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default. The Administrative
Agent shall (subject to Sections 11.01 and 11.07 hereof) take such action with
respect to such Default as shall be directed by the Majority Banks or, if
provided herein, the Majority Revolving Credit Banks or the Majority Term Banks,
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
Default as it shall deem advisable in the best interest of the Banks except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Banks, the Majority Revolving Credit Banks, the Majority Term Banks or all of
the Banks.
Credit Agreement
11.04 Rights as a Bank. With respect to its Commitments and
the Loans made by it, Chase (and any successor acting as Administrative Agent)
in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Bank" or "Banks" shall, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and Chase and its affiliates may accept fees and other consideration from
the Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Banks.
11.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Company under said Section 12.03,
and including in any event any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in Section
4.02 of the Security Agreement to which remittances in respect of Accounts, as
defined therein, are to be made) ratably in accordance with the aggregate
principal amount of the Loans and Reimbursement Obligations held by the Banks
(or, if no Loans or Reimbursement Obligations are at the time outstanding,
ratably in accordance with their respective Commitments), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent (including
by any Bank) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Basic Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses that the Company is obligated to pay under Section 12.03
hereof, and including also any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in Section
4.02 of the Security Agreement to which remittances in respect of Accounts, as
defined therein, are to be made, but excluding, unless a Default has occurred
and is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to
Credit Agreement
the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
11.06 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and its Subsidiaries and decision to enter into this Agreement and that
it will, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Basic
Documents. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by any Obligor of this Agreement or
any of the other Basic Documents or any other document referred to or provided
for herein or therein or to inspect the Properties or books of the Company or
any of its Subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company or any of
its Subsidiaries (or any of their affiliates) that may come into the possession
of the Administrative Agent or any of its affiliates.
11.07 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder and under the other Basic Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Banks of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Banks and shall have accepted such appointment
within 30 days after the retiring Administrative Agent's giving of notice of
Credit Agreement
resignation or the Majority Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, that shall be a bank which has an office in New
York, New York with a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon 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. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
11.09 Consents under Basic Documents. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Banks (but not
otherwise), consent to any modification, supplement or waiver under any of the
Basic Documents, provided that, without the prior consent of each Bank, the
Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Basic Document providing for collateral security, or agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Basic Document), except that no such consent shall
be required, and the Administrative Agent is hereby authorized and instructed,
to release any Lien covering Property which is the subject of a disposition of
Property permitted hereunder or to which the Majority Banks have consented.
11.10 Notices under the Senior Subordinated Debt Documents.
Without the authorization of the Majority Banks, neither the Administrative
Agent nor any Bank shall send to the Company or the Trustee under the Senior
Subordinated Note Indenture any notice of a Default or Event of Default
hereunder if such notice would result in a payment block in respect of the
Senior Subordinated Notes.
Credit Agreement
Section 12. Miscellaneous.
12.01 Waiver. No failure on the part of the Administrative
Agent or any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
12.02 Notices. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers or consents under, this Agreement)
shall be given or made in writing (including, without limitation, by telecopy),
or, with respect to notices given pursuant to Section 2.03 hereof, by telephone,
confirmed in writing by telecopier by the close of business on the day the
notice is given, delivered (or telephoned, as the case may be) to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof (below the name of the Company, in the case of any Subsidiary
Guarantor); or, as to any party, at such other address as shall be designated by
such party in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
received by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
12.03 Expenses, Etc. The Company agrees to pay or reimburse
(a) the Administrative Agent for paying all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy, special New
York counsel to Chase), in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Basic Documents and the
extension of credit hereunder and (ii) any modification, supplement or waiver of
any of the terms of this Agreement or any of the other Basic Documents; (b) each
of the Banks and the Administrative Agent for all reasonable costs and expenses
of the Banks and the Administrative Agent (including, without limitation,
reasonable counsels' fees and, to the extent permitted under applicable law,
allocated costs for in-house counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether
Credit Agreement
or not consummated), or the obligations of the Company hereunder and (ii) the
enforcement of this Section 12.03; (c) each of the Banks and the Administrative
Agent for all transfer, stamp, documentary or other similar taxes, assessments
or charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Basic Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by this Agreement or any other Basic Document
or any other document referred to herein or therein; (d) each of the Banks and
the Administrative Agent for all costs, expenses and other charges in respect of
title insurance procured with respect to the Liens created pursuant to the
Mortgages; and (e) each of the Banks and the Administrative Agent for all costs,
expenses and other charges in respect of any collateral audit requested by the
Administrative Agent or the Majority Banks pursuant to Section 9.01(f) hereof.
The Company hereby agrees to indemnify the Administrative
Agent and each Bank and their respective directors, officers, employees,
attorneys and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them
(including, without limitation, any and all losses, liabilities, claims, damages
or expenses incurred by the Administrative Agent to any Bank, whether or not the
Administrative Agent or any Bank is a party thereto) arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Company or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the negligence or willful misconduct). Without
limiting the generality of the foregoing, the Company will (x) indemnify the
Administrative Agent for any payments that the Administrative Agent is required
to make under any indemnity issued to any bank referred to in Section 4.02 of
the Security Agreement to which remittances in respect to Accounts, as defined
therein, are to be made and (y) indemnify the Administrative Agent and each Bank
from, and hold the Administrative Agent and each Bank harmless against, any
losses, liabilities, claims, damages or expenses described in the preceding
sentence (but excluding, as provided in the preceding sentence, any loss,
liability, claim, damage or expense incurred by reason of the negligence or
willful
Credit Agreement
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Company or any of
its Subsidiaries (or any predecessor in interest to the Company or any of its
Subsidiaries), or the past, present or future condition of any site or
facility owned, operated or leased by the Company or any of its Subsidiaries (or
any such predecessor in interest), or any Release or threatened Release of any
Hazardous Materials from any such site or facility, including any such Release
or threatened Release which shall occur during any period when the
Administrative Agent or any Bank shall be in possession of any such site or
facility following the exercise by the Administrative Agent or any Bank of any
of its rights and remedies hereunder or under any of the Security Documents.
12.04 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Company, the
Administrative Agent and the Majority Banks, or by the Company and the
Administrative Agent acting with the consent of the Majority Banks, and any
provision of this Agreement may be waived by the Majority Banks or by the
Administrative Agent acting with the consent of the Majority Banks; provided
that: (a) no modification, supplement or waiver shall, unless by an instrument
signed by all of the Banks or by the Administrative Agent acting with the
consent of all of the Banks: (i) increase, or extend the term of any of the
Commitments, or extend the time or waive any requirement for the reduction
or termination of any of the Commitments, (ii) extend the date fixed for the
payment of principal of or interest on any Loan, any Reimbursement Obligation or
any fee hereunder, (iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon or any fee is payable
hereunder, (v) alter the rights or obligations of the Company to prepay Loans,
(vi) alter the terms of this Section 12.04, (vii) modify the definition of the
term "Majority Banks", "Majority Revolving Credit Banks" or "Majority Term
Banks", or modify in any other manner the number or percentage of the Banks
required to make any determinations or waive any rights hereunder or to modify
any provision hereof, (viii) waive any of the conditions precedent set forth
in Section7 hereof or (ix) alter the obligations of or release any Subsidiary
Guarantor under Section 6 hereof provided that the Administrative Agent may,
with the consent of the Majority Banks, release any Subsidiary Guarantor which
is the subject of a disposition permitted by Section 9.05 hereof; (b) any
modification or supplement of any provision hereof relating to the rights or
obligations of Chase, in its capacity as the Swingline Bank, shall require the
consent of
Credit Agreement
Chase; and (c) any modification or supplement of Section 11 hereof shall require
the consent of the Administrative Agent.
12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Banks and
the Administrative Agent.
(b) Each Bank may assign any of its Loans, its Notes, its
Commitments, and, if such Bank is a Revolving Credit Bank, its Revolving Letter
of Credit Interest or, if such Bank is a Barton Letter of Credit Bank, its
Barton Letter of Credit Interest (but only with the consent (which consent
shall not be unreasonably withheld) of the Company and the Administrative Agent,
and in the case of a Revolving Credit Commitment, Revolving Letter of Credit
Interest, Barton Letter of Credit Commitment or Barton Letter of Credit
Interest, the appropriate Issuing Banks); provided that:
(i) no such consent by the Company or the
Administrative Agent shall be required in the case of any
assignment to another Bank;
(ii) except to the extent the Company and the
Administrative Agent shall otherwise consent, any such partial
assignment shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Bank of its Revolving
Credit Loans, Revolving Credit Note, Revolving Credit Commitment or
Revolving Letter of Credit Interest shall be made in such manner so
that the same portion of its Revolving Credit Loans, Revolving Credit
Note, Revolving Credit Commitment and Revolving Letter of Credit
Interest is assigned to the respective assignee;
(iv) each such assignment by a Bank of its Term Loans or
Term Loan Commitment shall be made in such manner so that the same
portion of its Term Loans and Term Loan Commitment is assigned to the
respective assignee; and
(v) upon each such assignment, the assignor and
assignee shall deliver to the Company, the Administrative
Credit Agreement
Agent and the Issuing Bank a Notice of Assignment in the form of
Exhibit J hereto.
Upon execution and delivery by the assignor and the assignee to the Company, the
appropriate Issuing Banks and the Administrative Agent of such Notice of
Assignment, and upon consent thereto by the Company, the appropriate Issuing
Banks and the Administrative Agent, the assignee shall have, to the extent of
such assignment (unless otherwise consented to by the Company, the
Administrative Agent and the Issuing Bank), the obligations, rights and benefits
of a Bank hereunder holding the Commitment(s), Loans, Revolving Letter of Credit
Interest and Barton Letter of Credit Interest (or portions thereof) assigned to
it and specified in such Notice of Assignment (in addition to the Commitment(s),
Loans, Revolving Letter of Credit Interest and Barton Letter of Credit Interest,
if any, theretofore held by such assignee) and the assigning Bank shall, to the
extent of such assignment, be released from the Commitment(s) (or portion(s)
thereof) so assigned. Upon each such assignment the assigning Bank shall pay the
Administrative Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans,
Revolving Letter of Credit Interest or Barton Letter of Credit Interest held by
it, or in its Commitments, provided that such Participant shall not have any
rights or obligations under this Agreement or any Note or any other Basic
Document (the Participant's rights against such Bank in respect of such
participation to be those set forth in the agreements executed by such Bank in
favor of the Participant). All amounts payable by the Company to any Bank under
Section 5 hereof in respect of Loans, Revolving Letter of Credit Interest or
Barton Letter of Credit Interest held by it, and its Commitments, shall be
determined as if such Bank had not sold or agreed to sell any participations in
such Loans, Revolving Letter of Credit Interest or Barton Letter of Credit
Interest and Commitments, and as if such Bank were funding each of such Loan,
Revolving Letter of Credit Interest or Barton Letter of Credit Interest and
Commitments in the same way that it is funding the portion of such Loan,
Revolving Letter of Credit Interest or Barton Letter of Credit Interest and
Commitments in which no participations have been sold. In no event shall a Bank
that sells a participation agree with the Participant to take or refrain from
taking any action hereunder or under any other Basic Document except that such
Bank may agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Bank's related
Commitment or extend the amount or date of any scheduled reduction of such
Commitment pursuant to Section 2.06 hereof,
Credit Agreement
(ii) extend the date fixed for the payment of principal of or interest on the
related Loan or Loans, Reimbursement Obligations or any portion of any fee
hereunder payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable thereon,
or any fee hereunder payable to the Participant, to a level below the rate at
which the Participant is entitled to receive such interest or fee or (v) consent
to any modification, supplement or waiver hereof or of any of the Security
Documents to the extent that the same, under Section 12.04 hereof, requires the
consent of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Bank may
(without notice to the Company, the Administrative Agent or any other Bank and
without payment of any fee) (i) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank
and (ii) assign all or any portion of its rights under this Agreement and its
Loans and its Notes to an affiliate. No such assignment shall release the
assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Company
or any of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Bank may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Company or any of its
Affiliates without the prior written consent of each Bank.
(g) Anything in this Section 12.06 to the contrary
notwithstanding, the Swingline Bank may not assign, or sell a participation in,
the Swingline Loans.
12.07 Survival. The obligations of the Company under Sections
5.01, 5.05, 5.06 and 12.03 hereof and the obligations of the Banks under Section
11.05 hereof shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments.
12.08 Captions. The table of contents and captions
and section headings appearing herein are included solely for
Credit Agreement
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
12.10 Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York. Each Obligor
hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and
of the Supreme Court of the State of New York sitting in New York
County (including its Appellate Division), and of any other
appellate court in the State of New York, for the purposes of all
legal proceedings arising out of or relating to this Agreement or
the transactions contemplated hereby. Each Obligor irrevocably
waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
12.11 Waiver of Jury Trial. EACH OBLIGOR, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
12.12 Treatment of Certain Information.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Bank or by one or more subsidiaries or affiliates
of such Bank and the Company hereby authorizes each Bank to share any
information delivered to such Bank by the Company and its Subsidiaries pursuant
to this Agreement, or in connection with the decision of such Bank to enter into
this Agreement, to any such subsidiary or affiliate.
(b) Each Bank and the Administrative Agent agrees (on behalf
of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures
Credit Agreement
for handling confidential information of this nature and in accordance with safe
and sound banking practices, any non-public information supplied to it by the
Company pursuant to this Agreement which is identified by the Company as being
confidential at the time the same is delivered to the Banks or the
Administrative Agent; provided that nothing herein shall limit the disclosure of
any such information (i) after such information shall become public, other than
through a violation of this Section 12.12(b), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Banks or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Bank or the Administrative
Agent), auditors or accountants, (v) to the Administrative Agent or any other
Bank (or to Chase Securities, Inc.), (vi) in connection with any litigation to
which any one or more of the Banks or the Administrative Agent is a party, (vii)
to a subsidiary or affiliate of such Bank as provided in clause (a) above or
(viii) to any assignee or participant (or prospective assignee or participant)
if such assignee or participant (or prospective assignee or participant) first
executes and delivers to the respective Bank a Confidentiality Agreement
substantially in the form of Exhibit G hereto; and provided further that in no
event shall any Bank or the Administrative Agent be obligated or required to
return any materials furnished by the Company.
Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
CANANDAIGUA WINE COMPANY, INC.
By /s/ Robert Sands
Title: Executive Vice President
Address for Notices:
116 Buffalo Street
Canandaigua, New York 14424-1086
Attention: Robert Sands, Esq.
Telecopier No.: (716) 394-6017
Telephone No.: (716) 394-7900
Credit Agreement
SUBSIDIARY GUARANTORS
BATAVIA WINE CELLARS, INC.
BISCEGLIA BROTHERS WINE CO.
CALIFORNIA PRODUCTS COMPANY
GUILD WINERIES & DISTILLERIES, INC. (formerly known as Canandaigua
California Acquisition Corp.)
WIDMER'S WINE CELLARS, INC.
VINTNERS INTERNATIONAL COMPANY, INC. (formerly known as
Canandaigua/Vintners Acquisition Corp.)
CANANDAIGUA WEST, INC.
By_____/s/Robert Sands____________
Name: Robert Sands
Title: Secretary
BARTON INCORPORATED
BARTON BRANDS, LTD.
BARTON BEERS, LTD.
BARTON BRANDS OF CALIFORNIA, INC.
BARTON BRANDS OF GEORGIA, INC.
BARTON DISTILLERS IMPORT CORP.
STEVENS POINT BEVERAGE COMPANY
MONARCH WINE COMPANY,
LIMITED PARTNERSHIP
By Barton Management, Inc.,
Corporate General Partner
BARTON MANAGEMENT, INC.
V ACQUISITION CORP.
By_____/s/Robert Sands___________
Name: Robert Sands
Title: Vice President
TENNER BROTHERS, INC.
By:____/s/ Richard Sands_________
Name: Richard Sands
Title: President
BARTON FINANCIAL CORPORATION
By____/s/ David S. Sorce_________
Name: David S. Sorce
Title: Vice President
Credit Agreement
BANKS
Barton Letter of Credit THE CHASE MANHATTAN BANK
Commitment (NATIONAL ASSOCIATION),
$2,796,052.63 ROCHESTER DIVISION
Revolving Credit Commitment
$20,690,789.46 By /s/ Diana Lauria
Title: Vice President
Term Loan Commitment
$27,513,157.91
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association),
Rochester Division
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
Chase Manhattan Bank, N.A.,
Rochester Division
1 Chase Square
Corporate Industries Dept.
Rochester, New York 14643
Attention: Diana Lauria
Vice President
Telecopier No.: (716) 258-4258
Telephone No.: (716) 258-5458
Credit Agreement
Barton Letter of Credit THE FIRST NATIONAL BANK OF CHICAGO
Commitment
$2,247,807.02
Revolving Credit Commitment
$16,633,771.93 By /s/ J. Garland Smith
Title: Managing Director
Term Loan Commitment
$22,118,421.05
Lending Office for all Loans:
The First National Bank of Chicago
One First National Plaza, Suite 0173
Chicago, Illinois 60670
Address for Notices:
The First National Bank of Chicago
One First National Plaza, Suite 0173
Chicago, Illinois 60670
Attention: Mary L. Hart
Vice President
Telecopier No.: (312) 732-2715
Telephone No.: (312) 732-6137
Credit Agreement
Barton Letter of Credit WELLS FARGO BANK, N.A.
Commitment
$2,247,807.02
Revolving Credit Commitment
$16,663,771.93 By /s/ Lee Jensen
Title: Vice President
Term Loan Commitment
$22,118,421.05
Lending Office for all Loans:
Wells Fargo Bank, N.A.
420 Montgomery Street, 9th Floor
San Francisco, California 94104
Address for Notices:
Wells Fargo Bank, N.A.
420 Montgomery Street, 9th Floor
San Francisco, California 94104
Attention: Richard DaCosta
Telecopier No.: (415) 396-6462
Telephone No.: (415) 989-6462
Credit Agreement
Barton Letter of Credit MANUFACTURERS AND TRADERS TRUST
Commitment COMPANY
$1,699,561.40
Revolving Credit Commitment
$12,576,754.39 By /s/ Philip M. Smith
Title: Regional Senior
Term Loan Commitment Vice President
$16,723,684.21
Lending Office for all Loans:
Manufacturers and Traders Trust
Company
44 Exchange Street
Rochester, New York 14614
Address for Notices:
Manufacturers and Traders Trust
Company
44 Exchange Street
Rochester, New York 14614
Attention: Philip M. Smith
Regional Senior
Vice-President
Telecopier No.: (716) 325-5105
Telephone No.: (716) 258-8261
Credit Agreement
Barton Letter of Credit FLEET BANK
Commitment
$1,480,263.16
Revolving Credit Commitment By /s/ Martin K. Birmingham
$10,953,947.37 Title: Assistant Vice President
Term Loan Commitment
$14,565,789.47
Lending Office for all Loans:
Fleet Bank
Corporate Banking -- NY/RO/3016
One East Avenue
Rochester, New York 14638
Address for Notices:
Fleet Bank
Corporate Banking -- NY/RO/3016
One East Avenue
Rochester, New York 14638
Attention: Martin K. Birmingham
Telecopier No.: (716) 546-9278
Telephone No.: (716) 546-9126
Credit Agreement
Barton Letter of Credit PNC BANK, NATIONAL ASSOCIATION
Commitment
1,480,263.16
Revolving Credit Commitment
$10,953,947.37 By /s/ Kenneth J. Laudano
Title: Commercial Banking Officer
Term Loan Commitment
$14,565,789.47
Lending Office for all Loans:
PNC Bank, National Association
One PNC Plaza
5th Avenue and Wood Street
Pittsburgh, PA 15265
Address for Notices:
PNC Bank, National Association
335 Madison Avenue
10th Floor
New York, New York 10017
Attention: Thomas R. Colwell
Telecopier No.: (212) 557-5461
or 5359
Telephone No.: (212) 557-5345
Credit Agreement
Barton Letter of Credit NATIONAL CITY BANK
Commitment
$1,425,438.60
Revolving Credit Commitment
$10,548,245.61 By /s/ Lisa Beth Lisi
Title: Account Officer
Term Loan Commitment
$14,026,315.79
Lending Office for all Loans:
National City Bank
1900 East Ninth Street
Cleveland, Ohio 44114
Address for Notices:
National City Bank
1900 East Ninth Street, Locator 2102
Cleveland, Ohio 44114
Attention: Lisa B. Lisi
Telecopier No.: (216) 575-9396
Telephone No.: (216) 575-9166
Credit Agreement
Barton Letter of Credit NATWEST BANK N.A.
Commitment
$1,315,789.47
Revolving Credit Commitment By /s/ Michael M. Dwyer
$9,736,842.11 Title: Vice President
Term Loan Commitment
$12,947,368.42
Lending Office for all Loans:
NatWest Bank N.A.
244 Westchester Avenue
White Plains, New York 10604
Address for Notices:
NatWest Bank N.A.
244 Westchester Avenue
White Plains, New York 10604
Attention: Michael M. Dwyer
Telecopier No.: (914) 681-5045
Telephone No.: (914) 681-5022
with a copy to:
Ms. Cheri Sgrulletta
Telcopier No.: (914) 681-5027
Telephone No.: (914) 681-5016
Credit Agreement
Barton Letter of Credit NBD BANK
Commitment
$1,206,140.35
Revolving Credit Commitment
$8,925,438.60 By /s/ Karl I. Bell
Title: Vice President
Term Loan Commitment
$11,868,421.05
Lending Office for all Loans:
NBD Bank
National Banking Division - East
611 Woodward Avenue
Detroit, Michigan 48226
Address for Notices:
NBD Bank
National Banking Division - East
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Karl I. Bell
Vice President
Telecopier No.: (313) 225-1586
Telephone No.: (313) 225-3368
Credit Agreement
Barton Letter of Credit THE BANK OF NOVA SCOTIA
Commitment
$1,096,491.23
Revolving Credit Commitment By /s/ J. Alan Edwards
$8,114,035.09 Title: Authorized Signatory
Term Loan Commitment
$10,789,473.68
Lending Office for all Loans:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Address for Notices:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Tilsa Cora
Telecopier No.: (212) 225-5145
Telephone No.: (212) 225-5044
with a copy to:
Dan Foote
Telecopier No.: (212) 225-5145
Telephone No.: (212) 225-5012
Credit Agreement
Barton Letter of Credit CREDIT SUISSE
Commitment
$1,096,491.23
Revolving Credit Commitment By /s/ Christopher J. Eldin
$8,114,035.09 Title:Member of Senior Management
Term Loan Commitment
$10,789,473.68 By /s/ Thomas G. Muoio
Title: Associate
Lending Office for all Loans:
Credit Suisse
12 East 49th Street
New York, New York 10017
Address for Notices:
Credit Suisse
12 East 49th Street
New York, New York 10017
Attention: Adrian Germann
Telecopier No.: (212) 238-5362
Telephone No.: (212) 238-5343
Credit Agreement
Barton Letter of Credit THE DAIWA BANK, LIMITED
Commitment
$1,096,491.23 By /s/ James Drum
Title: Vice President
Revolving Credit Commitment
$8,114,035.09 By /s/ W.N. Paty
Title: Vice President & Manager
Term Loan Commitment N.Y. Office
$10,789,473.68
Lending Office for all Loans:
The Daiwa Bank, Ltd. (Chicago Branch)
233 South Wacker Drive, Suite 4500
Chicago, Illinois 60606
Address for Notices (copy to Chicago
Branch):
The Daiwa Bank, Ltd.
450 Lexington Avenue, Suite 1700
New York, New York 10017
Attention: James Drum
Vice President
Telecopier No.: (212) 818-0865
Telephone No.: (212) 808-2340
Credit Agreement
Barton Letter of Credit KEY BANK OF NEW YORK
Commitment
$986,842.10
Revolving Credit Commitment By /s/ Kenneth K. Conte
$7,302,631.58 Title: Vice President
Term Loan Commitment
$9,710,526.32
Lending Office for all Loans:
Key Bank of New York
39 State Street, Second Floor
Rochester, New York 14614
Address for Notices:
Key Bank of New York
39 State Street, Second Floor
Rochester, New York 14614
Attention: Kenneth K. Conte
Vice President
Telecopier No.: (716) 232-6651
Telephone No.: (716) 263-4715
Credit Agreement
Barton Letter of Credit CHEMICAL BANK
Commitment
$822,368.42
Revolving Credit Commitment By /s/ Jack Spillane
$6,085,526.32 Title: Vice President
Term Loan Commitment
$8,092,105.26
Lending Office for all Loans:
Chemical Bank
300 Linden Oaks
Rochester, New York 14625
Address for Notices:
Chemical Bank
300 Linden Oaks
Rochester, New York 14625
Attention: Jack Spillane
Telecopier No.: (716) 586-6305
Telephone No.: (716) 387-3618
Credit Agreement
Barton Letter of Credit COOPERATIVE CENTRAL RAIFFEISEN-
Commitment BOERENLEENBANK B.A. "RABOBANK
$822,368.42 NEDERLAND", NEW YORK BRANCH
Revolving Credit Commitment
$6,085,526.32 By /s/ John W. Ball
Title: Vice President
Term Loan Commitment
$8,092,105.26
By /s/ Robert Bucklin
Title: Senior Vice President
Lending Office for all Loans:
Cooperative Central Raiffeisen-
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
245 Park Avenue
New York, New York 10167
Address for Notices:
Cooperative Central Raiffeisen-
Boerenleenbank B.A. "Rabobank
Nederland", New York Branch
245 Park Avenue
New York, New York 10167
Attention: John Ball
Vice President
Telecopier No.: (212) 916-7837
Telephone No.: (212) 916-7980
Credit Agreement
Barton Letter of Credit LTCB TRUST COMPANY
Commitment
$767,543.86
By /s/ Rene O. LeBlanc
Revolving Credit Commitment Title: Senior Vice President
$5,679,824.56
Term Loan Commitment
$7,552,631.58
Lending Office for all Loans:
LTCB Trust Company
165 Broadway
New York, New York 10006
Address for Notices:
LTCB Trust Company
165 Broadway
New York, New York 10006
Attention: Yoshihide Nakagawa
Telecopier No.: (212) 608-2371
Telephone No.: (212) 335-4464
Credit Agreement
Barton Letter of Credit CORESTATES BANK, N.A.
Commitment
$657,894.74
Revolving Credit Commitment By /s/ Brian M. Haley
$4,868,421.05 Title: Vice President
Term Loan Commitment
$6,473,684.21
Lending Office for all Loans:
CoreStates Bank, N.A.
1345 Chestnut Street
P.O. Box 7618
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19101-7618
Address for Notices:
CoreStates Bank, N.A.
1345 Chestnut Street
P.O. Box 7618
F.C. 1-8-3-14
Philadelphia, Pennsylvania 19101-7618
Attention: Sharon Burgess
Telecopier No.: (215) 973-2045
Telephone No.: (215) 973-4448
Credit Agreement
Barton Letter of Credit DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
Commitment CAYMAN ISLAND BRANCH
$657,894.74
Revolving Credit Commitment By /s/ Linda J. O'Connell
$4,868,421.05 Title: Vice President
Term Loan Commitment By /s/ Pamela D. Ingram
$6,473,684.21 Title: Assistant Vice President
Lending Office for all Loans:
DG Bank
609 Fifth Avenue
New York, New York 10017
Address for Notices:
DG Bank
609 Fifth Avenue
New York, New York 10017
Attention: Norah E. McCann
Telecopier No.: (212) 745-1556
Telephone No.: (212) 745-1584
Credit Agreement
Barton Letter of Credit THE FUJI BANK LIMITED, NEW YORK BRANCH
Commitment
$548,245.61
Revolving Credit Commitment By /s/ Katsunori Nozawa
$4,057,017.54 Title: Vice President & Manager
Term Loan Commitment
$5,394,736.85
Lending Office for all Loans:
The Fuji Bank Limited
New York Branch
Two World Trade Center
New York, New York 10048
Address for Notices:
The Fuji Bank Limited
New York Branch
Two World Trade Center
New York, New York 10048
Attention: Kevin Dooley
Telecopier No.: (212) 912-0516
Telephone No.: (212) 898-2061
Credit Agreement
Barton Letter of Credit THE SUMITOMO BANK, LIMITED
Commitment NEW YORK BRANCH
$548,245.61
Revolving Credit Commitment By /s/ Shuntaro Higashi
$4,057,017.54 Title: Joint General Manager
Term Loan Commitment
$5,394,736.85
Lending Office for all Loans:
The Sumitomo Bank, Limited,
New York Branch
One World Trade Center
Suite 9651
New York, New York 10008
Address for Notices:
The Sumitomo Bank, Limited,
New York Branch
One World Trade Center
Suite 9651
New York, New York 10008
Attention: Diana Hurtzig
Telecopier No.: (212) 323-0366
Telephone No.: (212) 323-0486
Credit Agreement
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ Diana Lauria
Title: Vice President
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
(National Association)
4 MetroTech Center
13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Telecopier No.: (718) 242-6910
Telephone No.: (718) 242-7979
Credit Agreement
Third Amended and Restated Credit Agreement
between the Registrant, its principal operating subsidiaries,
and certain banks for which
The Chase Manhattan Bank (National Association) acts as Administrative Agent
List of Omitted Schedules and Exhibits
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Hazardous Materials
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Litigation
SCHEDULE V - Real Property
SCHEDULE VI - Life Insurance Agreements
SCHEDULE VII - Stock Options
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT A-3 - Form of Money Market Note
EXHIBIT A-4 - Form of Swingline Note
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C-1 - Copy, as Executed, of Security Agreement
EXHIBIT C-2 - Form of Security Agreement Amendment
EXHIBIT D - Copy, as Executed, of Barton Letter of Credit
EXHIBIT E-1 - Form of Opinion of Special Counsel to Obligors
EXHIBIT E-2 - Form of Opinion of California Counsel to Obligors
EXHIBIT E-3 - Form of Opinion of Kentucky Counsel to Obligors
EXHIBIT F - Form of Opinion of Special New York Counsel to Chase
EXHIBIT G - Form of Confidentiality Agreement
EXHIBIT H - Form of Money Market Quote Request
EXHIBIT I - Form of Money Market Quote
EXHIBIT J - Form of Notice of Assignment