Published CUSIP Deal Number: 81154LAA5
Published CUSIP Revolver Number: 81154LAB3
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 10, 2008
among
SEABOARD CORPORATION
and
CERTAIN SUBSIDIARIES OF SEABOARD COPORATION,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative
Agent, Swing Line Lender and an L/C Issuer,
and
The
Other Lenders Party Hereto
BANK OF NOVA SCOTIA,
as the Syndication Agent
SUNTRUST BANK
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.,
"RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC
and
SCOTIA CAPITAL, INC.,
as
Joint Lead Arrangers and Joint Book Managers
<PAGE>
TABLE OF CONTENTS
Section
Page
ARTICLE I.
AMENDMENT AND
RESTATEMENT; DEFINITIONS AND ACCOUNTING TERMS
1.01 Amendment and Restatement
1
1.02 Defined Terms
3
1.03 Other Interpretive Provisions
28
1.04 Accounting Matters
29
1.05 Rounding
30
1.06 Exchange Rates; Currency Equivalents
30
1.07 Additional Alternative Currencies
30
1.08 Change of Currency
31
1.09 Times of Day
32
1.10 Letter of Credit Amounts
32
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans
32
2.02 Borrowings, Conversions and Continuations of Committed
Loans
32
2.03 Letters of Credit
35
2.04 Swing Line Loans
44
2.05 Prepayments
47
2.06 Termination or Reduction of Commitments
48
2.07 Repayment of Loans
49
2.08 Interest
49
2.09 Fees
50
2.10 Computation of Interest and Fees; Retroactive
Adjustments of Applicable Rate
50
2.11 Evidence of Debt
51
2.12 Payments Generally; Administrative Agent's Clawback
52
2.13 Sharing of Payments by Lenders
54
2.14 Designated Borrowers
54
2.15 Increase in Commitments
56
<PAGE> i
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes
57
3.02 Illegality
62
3.03 Inability to Determine Rates
62
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans
63
3.05 Compensation for Losses
65
3.06 Mitigation Obligations; Replacement of Lenders
66
3.07 Survival
66
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension
66
4.02 Conditions to all Credit Extensions
68
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with
Laws
69
5.02 Authorization; No Contravention
69
5.03 Governmental Authorization; Other Consents
69
5.04 Binding Effect
69
5.05 Financial Statements; No Material Adverse Effect
69
5.06 Litigation
70
5.07 No Default
70
5.08 Ownership of Property; Liens
70
5.09 Environmental Compliance
70
5.10 Insurance
71
5.11 Taxes
71
5.12 ERISA Compliance
71
5.13 Subsidiaries; Equity Interests
72
5.14 Margin Regulations; Investment Company Act
72
5.15 Disclosure
72
5.16 Compliance with Laws
72
5.17 Intellectual Property; Licenses, Etc
73
5.18 Taxpayer Identification Number; Other Identifying
Information
73
<PAGE> ii
5.19 Representations as to Foreign Obligors
73
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements
74
6.02 Certificates; Other Information
75
6.03 Notices
77
6.04 Payment of Obligations
77
6.05 Preservation of Existence, Etc
77
6.06 Maintenance of Properties
78
6.07 Maintenance of Insurance
78
6.08 Compliance with Laws
78
6.09 Books and Records
78
6.10 Inspection Rights
78
6.11 Use of Proceeds
79
6.12 Approvals and Authorizations
79
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Negative Pledge
79
7.02 Investments
80
7.03 Subsidiary Indebtedness
81
7.04 Fundamental Changes
82
7.05 Dispositions
83
7.06 Restricted Payments
84
7.07 Change in Nature of Business
85
7.08 Transactions with Affiliates
85
7.09 Burdensome Agreements
85
7.10 Use of Proceeds
85
7.11 Acquisitions
86
7.12 Financial Covenants
86
7.13 Amendments to Senior Note Agreements
86
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default
87
<PAGE> iii
8.02 Remedies Upon Event of Default
89
8.03 Application of Funds
89
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority
90
9.02 Rights as a Lender
90
9.03 Exculpatory Provisions
90
9.04 Reliance by Administrative Agent
91
9.05 Delegation of Duties
92
9.06 Resignation of Administrative Agent
92
9.07 Non-Reliance on Administrative Agent and Other Lenders
93
9.08 No Other Duties, Etc
93
9.09 Administrative Agent May File Proofs of Claim
93
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc
94
10.02 Notices; Effectiveness; Electronic Communication
95
10.03 No Waiver; Cumulative Remedies; Enforcement
97
10.04 Expenses; Indemnity; Damage Waiver
98
10.05 Payments Set Aside
100
10.06 Successors and Assigns
100
10.07 Treatment of Certain Information; Confidentiality
104
10.08 Right of Setoff
105
10.09 Interest Rate Limitation
106
10.10 Counterparts; Integration; Effectiveness
106
10.11 Survival of Representations and Warranties
106
10.12 Severability
106
10.13 Replacement of Lenders
107
10.14 Governing Law; Jurisdiction; Etc
107
10.15 Waiver of Jury Trial
108
10.16 No Advisory or Fiduciary Responsibility
108
10.17 Electronic Execution of Assignments and Certain
Other
Documents
109
10.18 USA PATRIOT Act Notice
109
<PAGE> iv
10.19 Judgment Currency
109
SIGNATURES
S-1
<PAGE> v
SCHEDULES
1.01
Mandatory
Cost Formulae
1.01(a)
Applicable Rate
1.01(b)
Definition of "Excluded Transaction"
2.01
Commitments and Applicable Percentages
5.05
Supplement
to Interim Financial Statements
5.13
Subsidiaries; Other Equity Investments
5.18
Identification Numbers for Designated Borrowers
that are Foreign Subsidiaries
10.02 Administrative
Agent's Office;
Certain
Addresses for Notices
EXHIBITS
Form
of
A
Committed
Loan Notice
B
Swing Line
Loan Notice
C
Note
D
Compliance
Certificate
E-1 Assignment and Assumption
E-2
Administrative
Questionnaire
F
Letter of
Credit Information Report
G
Designated
Borrower Request and Assumption Agreement
H
Designated
Borrower Notice
I
Opinion
J
Company
Guaranty
<PAGE> vi
AMENDED AND RESTATED CREDIT AGREEMENT
This
AMENDED
AND RESTATED CREDIT AGREEMENT (this
"Agreement") is
entered into as of July 10, 2008 among SEABOARD
CORPORATION, a
Delaware corporation (the "Company"), certain
Subsidiaries of the Company party hereto pursuant to Section
2.14
(each a "Designated Borrower" and, together with the Company,
the
"Borrowers" and, each
a "Borrower"), each lender from time to
time party hereto
(collectively, the "Lenders" and individually,
a "Lender"), and BANK
OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and an L/C Issuer.
Preliminary Statements
A.
The
Company, the lenders
party thereto (the "Existing
Lenders") and Bank of America, N.A., as administrative agent,
are
parties to that
certain Credit Agreement among the Company, the
lenders party
thereto,
and Bank of America, N.A., as
administrative agent, dated as of December 3, 2004 (as amended,
amended and
restated, extended, supplemented or otherwise
modified prior to the date hereof, the "Existing Five-Year
Credit
Agreement"), pursuant
to which the lenders
party thereto
(the
"Existing Lenders") originally agreed to provide the Company
with
a revolving
credit facility, including a letter of credit
subfacility and a swing line subfacility.
B.
The
Company has requested
that the Existing Five-Year
Credit Agreement
be amended and restated, subject to the
conditions set forth herein, in order to, among other things,
(a)
add additional borrowers, (b) provide for credit extensions to
be
in alternative
currencies, (c) extend the maturity date of the
revolving credit
facility, (d) increase
the maximum
aggregate
principal amount
of the revolving credit facility from the
existing $100,000,000
to $300,000,000 (subject to an increase
option provided in
this Agreement), and (e) make certain other
amendments to
the Existing Five-Year Credit Agreement (the
"Amendment and Restatement").
C.
The parties
hereto are willing to amend and restate the
Existing Five-Year
Credit Agreement and to make and continue to
make certain
revolving credit and
letter of credit
facilities
available to the Company upon the terms and conditions set
forth
herein
In
consideration
of the mutual covenants and agreements
herein contained,
the parties hereto covenant and agree as
follows:
ARTICLE I.
AMENDMENT AND
RESTATEMENT; DEFINITIONS AND ACCOUNTING TERMS
1.01
Amendment and Restatement. In order to facilitate
the
Amendment and Restatement and otherwise to effectuate the
desires
of the Company, the Administrative Agent and the Lenders agree
as
follows:
(a)
As of the Closing Date (immediately
prior to the
effectiveness of
this Agreement) (i)
the Aggregate
Commitments
under (and as defined in) the Existing Five-Year Credit
Agreement
are $100,000,000, (ii)
the principal amount
of the Loans (as
defined in
the Existing Five-Year
Credit Agreement) outstanding
under the Existing
Five-Year Credit Agreement is $0,
<PAGE> 1
(iii) there are no
Swing Line Loans (as
defined in the Existing
Five-Year Credit
Agreement) outstanding under the Existing Five-
Year Credit Agreement,
and (iv) the aggregate amount of L/C
Obligations (as
defined in the Existing Five-Year Credit
Agreement) outstanding
under the Existing Five-Year Credit
Agreement is $56,470,803.67.
(b)
Simultaneously
with the Closing Date,
but immediately
prior to giving
effect to Section 1.01(e), the parties hereby
agree that (i) the
Commitments of each Lender and its Applicable
Percentage shall
be as set forth in Schedule 2.01, and the
Outstanding Amounts
of Loans and Applicable Percentage of
the
Outstanding Amounts
of L/C Obligations
under the Existing Five-
Year Credit Agreement
(each as defined in the Existing Five-Year
Credit Agreement)
shall be reallocated as outstanding Loans
hereunder in accordance with such Commitments, and the requisite
assignments shall be deemed to be made in such amounts among the
Lenders and
from each Lender to each other Lender (and, if
necessary, to
Lenders from Existing Lenders who elect not to
become Lenders
under this Agreement or who reduce their
commitments in connection with this Agreement), with the same
force and effect as if such assignments were evidenced by
applicable Assignments
and Assumptions (as defined in the
Existing Five-Year Credit Agreement) under the Existing
Five-Year
Credit Agreement,
but without the payment of any related
assignment fee, (ii) the Letter of Credit Sublimit (as defined
in
the Existing
Five-Year Credit Agreement) shall continue
as the
Letter of Credit Sublimit hereunder as such Letter of Credit
Sublimit has
been increased as set forth herein and (iii)
all
Letters of
Credit (as
defined in the
Existing Five-Year Credit
Agreement) outstanding
under the Existing Five-Year Credit
Agreement (the
"Existing Letters
of Credit") shall
continue as
Letters of Credit outstanding under this Agreement.
(c)
The parties hereby consent to all reallocations and
assignments of
Commitments
and Outstanding Amounts effected
pursuant to Sections 1.01(b) and 1.01(c) and subject to Article
V
hereof, waive
any requirement for any other document or
instrument, including any Assignment and Assumption (as defined
in the Existing Five-Year Credit Agreement) under
the Existing
Five-Year Credit
Agreement or Assignment and Assumption
hereunder, necessary
to give effect to any reallocation or
assignment. On the
Closing Date the Lenders shall make full cash
settlement with each other (and with the Existing Lenders
whose
Commitments are
being decreased) through the Administrative
Agent, as the Administrative Agent may direct or
approve, with
respect to all assignments and reallocations in Commitments as
reflected in this Section 1.01 such that after giving effect to
such settlements
each Lender's Applicable Percentage of the
Commitments equals
(with customary rounding) its Applicable
Percentage of
(i) the Outstanding
Amount of all Loans, and (ii)
the Outstanding Amount of all L/C Obligations.
(d)
The parties hereto hereby agree that upon the
effectiveness of this
Agreement, the terms and provisions of the
Existing Five-Year Credit Agreement which in any manner govern
or
evidence the
Obligations, the obligations of the Company and the
other Loan
Parties,
the rights and interests of the
Administrative Agent and the Lenders and any terms, conditions
or
matters related
to any thereof, shall
be and hereby are amended
and restated
in their entirety by the terms, conditions and
provisions of this Agreement, and the terms and provisions of
the
Existing Five-Year
Credit Agreement, except as otherwise
expressly provided herein or therein, shall be superseded by
this
Agreement.
<PAGE> 2
(e)
Notwithstanding
this Amendment and Restatement of
the
Existing Five-Year
Credit Agreement,
including anything in this
Section 1.01, and
in any related Loan Documents (as
defined in
the Existing Five-Year
Credit Agreement and
referred to herein,
individually or
collectively, as the "Existing Loan Documents"),
(i) all of the indebtedness, liabilities and obligations owing
by
any Person under the
Existing Five-Year Credit Agreement and
other Existing
Loan Documents shall continue as Obligations
hereunder, and (ii) each of this Agreement and the Notes and any
other Loan
Document (as defined herein) that is amended and
restated in
connection
with this Agreement is given as a
substitution of,
and not as a payment of, the indebtedness,
liabilities and
obligations of
the Company or any other Loan
Party under
the Existing Five-Year Credit Agreement or any
Existing Loan Document and neither the execution and delivery of
such documents
nor the consummation of any other transaction
contemplated hereunder
is intended to constitute a novation
of
the Existing Five-Year Credit Agreement or of any of the other
Existing Loan Documents or any obligations thereunder.
Upon the
effectiveness of this Agreement, unless otherwise agreed to and
arranged by the Administrative Agent, all Loans (as defined in
the Existing
Five-Year Credit Agreement) owing and
outstanding
under the Existing
Five-Year Credit Agreement shall be converted
to and, subject to
conversion after
the Closing Date, shall
continue as
Base Rate Loans hereunder and shall constitute
advances hereunder, and all Letters of Credit (as defined in the
Existing Five-Year
Credit Agreement) outstanding under the
Existing Five-Year Credit Agreement and any of the Existing Loan
Documents, if any, shall continue as Letters of Credit
hereunder;
provided that
if any Eurodollar Rate Loans (as defined
in the
Existing Five-Year
Credit Agreement) are
converted to Base Rate
Loans pursuant to this
Section 1.01(e)
on a day other than
the
last day of an Interest Period, the Borrowers shall compensate
the Lenders holding such Eurodollar Rate Loans (as defined in
the
Existing Five-Year Credit Agreement) pursuant to Section 3.05
for
any loss, cost or expense arising from such conversion on the
Closing Date of Eurodollar Rate Loans under (and as defined in)
the Existing Five-Year
Credit Agreement to Base Rate Loans
hereunder; provided
further, that on and after the Closing Date,
the Applicable Rate
and fees applicable to
Loans and Letters of
Credit hereunder shall
apply without regard to any margins or
fees otherwise applicable thereto under the Existing Five-Year
Credit Agreement
prior to the Closing Date (which fees and
margins applicable
prior to the Closing Date shall be paid
in
full on the Closing Date).
1.02
Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Acquisition" means
any transaction or
series of related
transactions for
the purpose of or resulting, directly or
indirectly, in (a) the acquisition by the Company or a
Subsidiary
of all or
substantially all of the assets of a Person, or of any
line of business or
division of a Person, or (b) the acquisition
by the Company or a
Subsidiary of in excess of 50% of the Equity
Interests of
any Person (other than a Person already a
Subsidiary), or
otherwise causing any Person to become a
Subsidiary.
"Administrative Agent" means Bank of America in its capacity
as administrative
agent under any of the Loan Documents, or any
successor administrative agent.
"Administrative Agent's Office" means, with respect to any
currency, the Administrative Agent's address and, as
appropriate,
account as
set forth on Schedule 10.02 with
respect to such
<PAGE> 3
currency, or such other address or account with respect
to such
currency as the Administrative Agent may from time to time
notify
to the Company and the Lenders.
"Administrative
Questionnaire" means
an Administrative
Questionnaire in
substantially the form of Exhibit E-2 or any
other form approved by the Administrative Agent.
"Affiliate" means,
with respect
to any Person, another
Person that
directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Aggregate
Commitments" means the Commitments of all the
Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Canadian Dollars,
Yen, Rands and each
other currency (other than Dollars) that is
approved in accordance with Section 1.07.
"Alternative Currency Equivalent" means, at any time, with
respect to
any amount denominated in Dollars,
the equivalent
amount thereof
in the applicable Alternative Currency as
determined by the Administrative Agent or the L/C Issuer, as
the
case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the
lesser of the Aggregate Commitments and $50,000,000. The
Alternative Currency Sublimit is part of, and not in addition
to,
the Aggregate Commitments.
"Amendment and Restatement" has the meaning specified in the
Preliminary Statements hereto.
"Applicable Percentage" means, with respect to any Lender at
any time, the percentage (carried out to the ninth decimal
place)
of the
Aggregate Commitments represented by such Lender's
Commitment at
such time.
If the commitment of
each Lender
to
make Loans
and the obligation of the L/C Issuer
to make L/C
Credit Extensions have
been terminated pursuant to Section 8.02
or if the Aggregate Commitments have expired, then the
Applicable
Percentage of
each Lender shall be determined based on the
Applicable Percentage
of such Lender most
recently in
effect,
giving effect
to any subsequent assignments. The initial
Applicable Percentage
of each Lender is set forth opposite the
name of such Lender on Schedule 2.01 or in the
Assignment and
Assumption pursuant to which such Lender becomes a party
hereto,
as applicable.
"Applicable Rate"
means the percentages
per annum,
based
upon the Consolidated Leverage Ratio as set
forth in the
most
recent Compliance
Certificate received
by the Administrative
Agent pursuant to
Section 6.02(a) determined in accordance with
the table set forth in Schedule 1.01(a). Any increase or
decrease in the
Applicable Rate resulting from a change in the
Consolidated Leverage
Ratio shall become
effective as
of the
first Business Day
immediately following the date a Compliance
Certificate is
delivered pursuant to Section 6.02(a); provided,
however, that if a
Compliance Certificate is not delivered when
due in accordance with
such Section, then Pricing Level 5 shall
apply as of the first
Business Day after
<PAGE> 4
the date on which
such Compliance Certificate was required to
have been delivered
until the first
Business Day after the date
on which such
Compliance Certificate is actually delivered. The
Applicable Rate in effect from the Closing Date through the
first
Business Day
immediately
following the date a Compliance
Certificate is
delivered or required to be pursuant to
Section
6.02(b) for the fiscal quarter ended June 28, 2008 shall be
determined based
upon the Consolidated
Leverage
Ratio set
forth in the Compliance Certificate
delivered on the
Closing
Date pursuant
to Section 4.01(a)(vii).
"Applicable Time" means, with respect to any borrowings
and
payments in any Alternative Currency, the local time in the
place
of settlement for such
Alternative Currency as may be determined
by the Administrative Agent or the L/C
Issuer, as the case
may
be, to be necessary for timely settlement on the relevant date
in
accordance with
normal banking procedures in the place of
payment.
"Applicant Borrower"
has the meaning specified in Section
2.14.
"Approved Fund"
means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an
entity or an Affiliate of an entity that administers or manages
a
Lender.
"Arrangers" means BAS
and Scotia Capital,
Inc., in their
capacities as joint lead arrangers and joint book managers.
"Assignee Group" means
two or more Eligible Assignees that
are Affiliates
of one another or two or more Approved Funds
managed by the same investment advisor.
"Assignment and
Assumption"
means an assignment and
assumption entered
into by a Lender and
an Eligible Assignee
(with the consent of any party whose consent
is required by
Section 10.06(b)), and
accepted by the Administrative Agent, in
substantially the form of Exhibit E-1 or any other form
approved
by the Administrative Agent.
"Attributable
Indebtedness" means,
on any date, (a) in
respect of
any capital lease of any Person, the capitalized
amount thereof
that would appear on a balance
sheet of such
Person prepared as of
such date in accordance with GAAP, (b) in
respect of any Synthetic Lease Obligation, the capitalized
amount
of the remaining lease payments under the
relevant lease
that
would appear
on a balance sheet of
such Person prepared
as of
such date in accordance with GAAP if such
lease were
accounted
for as a capital lease, and (c) in respect of any asset
securitization transaction of any Person, (i) the actual amount
of any unrecovered investment of
purchasers or
transferees of
assets so transferred, plus (ii) in the case of any other
recourse, repurchase, or debt obligation described in clause
(a)
of the
definition
of "Off-Balance Sheet Liabilities," the
capitalized amount of
such obligation that
would appear
on a
balance sheet of such
Person prepared on such date in accordance
with GAAP if such sale
or transfer or assets were accounted for
as a secured loan.
"Audited
Financial
Statements"
means the
audited
consolidated balance
sheet of the Company and its Subsidiaries
and Consolidated
Entities for the fiscal year ended December 31,
2007, and the related consolidated statements of earnings,
shareholders' equity and cash flows
<PAGE> 5
for such fiscal year
of the Company and its Subsidiaries and
Consolidated Entities, including the notes thereto.
"Availability Period"
means the period from
and including
the Closing Date to
the earliest of (a) the Maturity Date, (b)
the date of termination of the Aggregate Commitments pursuant
to
Section 2.06, and (c)
the date of termination of the commitment
of each Lender to make Loans and of the
obligation of the
L/C
Issuer to make L/C Credit Extensions pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means
Banc of America Securities LLC and its
successors.
"Base Rate" means for
any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of
1%
and (b) the rate of interest in effect for
such day as publicly
announced from
time to time by Bank
of America as
its "prime
rate." The
"prime rate" is a rate set by Bank of America based
upon various
factors including Bank of America's costs and
desired return,
general economic conditions and other factors,
and is used as a reference point for
pricing some loans,
which
may be priced at, above, or below such announced
rate. Any
change in such rate announced by Bank of
America shall take
effect at the opening of business on the day
specified in
the
public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is
a
Base Rate Loan.
"Base Rate Loan" means
a Loan that bears interest based on
the Base Rate. All Base Rate Loans shall
be denominated in
Dollars.
"Borrower" and "Borrowers" each has the meaning specified in
the introductory paragraph hereto.
"Borrower Materials"
has the meaning specified in Section
6.02.
"Borrowing" means a
Committed Borrowing or
a Swing Line
Borrowing, as the context may require.
"Bresky Group" means (a) the estate of H. Harry Bresky, Otto
Bresky, Jr. (brother of the late H. Harry Bresky) and the
estate
of Marjorie
Shifman (deceased sister of the late H. Harry
Bresky), (b)
spouses, heirs,
legatees, lineal descendants, and
spouses of
lineal descendants, other blood relatives, step-
children, adopted children, and/or estates or representatives
of
estates of
H. Harry Bresky, Otto Bresky, Jr. and Marjorie
Shifman, (c)
trusts established for the benefit of spouses,
lineal descendants and spouses of lineal descendants, other
blood
relatives,
step-children, and/or adopted children of H. Harry
Bresky, Otto Bresky, Jr., and Marjorie Shifman and (d) any
person
which is directly or
indirectly Controlled by a person described
in the preceding clauses (a), (b) or (c).
"Business Day" means
any day other than a Saturday, Sunday
or other day on which commercial banks are
authorized to
close
under the Laws of, or are in fact closed in, the state
<PAGE> 6
where the
Administrative
Agent's
Office
with respect to
Obligations denominated in Dollars is located and:
(a) if such day
relates to any interest rate settings
as
to a Eurocurrency Rate
Loan denominated in Dollars, any
fundings, disbursements, settlements and payments in Dollars
in
respect of any such
Eurocurrency Rate Loan, or any other
dealings in
Dollars to be carried out pursuant to this
Agreement in
respect of any such
Eurocurrency Rate
Loan,
means any such day on
which dealings in deposits in Dollars
are
conducted by and
between banks in the London interbank
eurodollar market;
(b) if such day
relates to any interest rate settings
as
to a Eurocurrency Rate Loan denominated
in Euro, any
fundings, disbursements, settlements and payments in Euro in
respect of
any such Eurocurrency
Rate Loan, or any
other
dealings in
Euro to be carried out pursuant to this
Agreement in
respect of any such
Eurocurrency Rate
Loan,
means a TARGET Day;
(c) if such day
relates to any interest rate settings
as
to a Eurocurrency Rate Loan denominated
in a currency
other than
Dollars or Euro, means
any such day
on which
dealings in deposits
in the relevant currency are conducted
by
and between banks in the London or other applicable
offshore interbank market for such currency; and
(d) if
such
day relates to any fundings,
disbursements, settlements and payments in a currency other
than
Dollars or Euro in
respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any
other dealings in any currency other than Dollars or Euro to
be
carried out pursuant
to this Agreement in respect of any
such Eurocurrency Rate Loan (other than
any interest
rate
settings), means any
such day on which banks are open for
foreign exchange business in the principal financial center
of
the country of such currency.
"Canadian Dollar" means the lawful currency of Canada.
"Cash Collateralize"
has the meaning specified in Section
2.03(g).
"Change in Law" means the occurrence, after the date of this
Agreement, of any of
the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change
in
any law, rule, regulation or treaty or in the
administration,
interpretation
or application
thereof by any Governmental
Authority or (c) the making or issuance of any request,
guideline
or directive
(whether or not having
the force of law)
by any
Governmental Authority.
"Change of Control"
means an event or series of events by
which any "person" or "group" (as such terms are used in
Sections
13(d) and 14(d) of the Securities Exchange Act
of 1934, but
excluding (x)
any employee benefit
plan of such person or
its
subsidiaries, and any person or entity acting in its capacity
as
trustee, agent or
other fiduciary or administrator of any such
plan, (y) Seaboard
Flour and (z) any member of the Bresky Group)
(i) becomes the "beneficial owner" (as defined in Rules 13d-3
and
13d-5 under the
Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership"
of
all securities that such person or group has the right to
acquire
(such right,
an "option right"),
<PAGE> 7
whether such right is exercisable immediately or only after the
passage of
time), directly or
indirectly, of 50% or more of the
equity securities of
the Company entitled to vote for members
of the board of
directors or
equivalent
governing body of
the
Company on
a fully-diluted basis (and taking into account
all
such securities
that such person or group has the right to
acquire pursuant
to any option right), or (ii) shall have
acquired by contract or otherwise, or shall have entered into a
contract or
arrangement that,
upon consummation thereof, will
result in its or their
acquisition of
the power to exercise,
directly or
indirectly,
a controlling influence over the
management or policies of the Company, or control over the
equity
securities of the Company entitled to vote for members of the
board of directors or equivalent governing body of the Company
on
a fully-diluted
basis
(and
taking into account all such
securities that such Person or group has the right to acquire
pursuant to any option right) representing 50% or more of the
combined voting power
of such securities.
"Closing Date"
means the first date all the conditions
precedent in Section
4.01 are satisfied or waived in accordance
with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a)
make Committed Loans
to the Borrowers pursuant to Section 2.01,
(b) purchase
participations in L/C Obligations, and (c) purchase
participations in
Swing Line Loans, in
an aggregate
principal
amount at any one time outstanding not to exceed
the Dollar
amount set forth opposite such Lender's name on Schedule 2.01
or
in the Assignment and Assumption pursuant
to which such
Lender
becomes a party hereto, as applicable, as
such amount
may be
adjusted from time to time in accordance with this Agreement.
"Committed Borrowing"
means a borrowing consisting of
simultaneous Committed
Loans of the
same Type, in the same
currency and, in the case of Eurocurrency Rate Loans, having
the
same Interest
Period made by each of
the Lenders
pursuant to
Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan
Notice" means a notice of (a) a Committed
Borrowing, (b) a conversion of Committed Loans from one
Type to
the other,
or (c) a continuation of Eurocurrency
Rate Loans,
pursuant to
Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Company" has
the meaning specified in the introductory
paragraph hereto.
"Company Guaranty"
means a Guaranty Agreement in favor of
the Administrative
Agent and the Lenders, in substantially the
form of Exhibit J, executed by the Company
on behalf of a
Designated Borrower that is a Foreign Obligor.
"Compliance
Certificate" means a certificate substantially
in the form of Exhibit D.
"Consolidated Adjusted Leverage Ratio" means, as of any date
of determination, the
ratio of (a) the remainder of Consolidated
Funded Indebtedness as of such date, minus all unencumbered
cash
and cash equivalents of the Company and its
Subsidiaries
and
Consolidated
<PAGE> 8
Entities as
of such date with adjustments for international
tax effects at an assumed withholding rate of 35%, as
applicable,
to (b) Consolidated EBITDA for the period of the four fiscal
quarters most recently ended.
"Consolidated EBITDA" means, for any period, for the Company
and its Subsidiaries
and Consolidated Entities on a consolidated
basis, an amount equal to Consolidated Net Income for such
period
plus (a) the following to the extent deducted in calculating
such
Consolidated Net
Income: (i) Consolidated Interest Charges for
such period,
(ii) the provision for
Federal, state, local
and
foreign income taxes
payable by the Company and its Subsidiaries
for such period, (iii)
depreciation and amortization expense and
(iv) other
expenses, losses or
charges of the Company
and its
Subsidiaries and Consolidated Entities reducing such
Consolidated
Net Income which do
not represent a cash item in such period or
any future
period, and minus (b)
the following to
the extent
included in
calculating
such Consolidated Net Income: (i)
Federal, state,
local and foreign
income tax
credits of the
Company and its
Subsidiaries and Consolidated Entities for such
period and
(ii) all non-cash
items and all other extraordinary,
unusual or nonrecurring gains of the Company and its
Subsidiaries
and Consolidated
Entities increasing Consolidated Net Income for
such period.
"Consolidated Entity"
means an entity, other than a
Subsidiary, that is subject to consolidation under GAAP.
"Consolidated Funded Indebtedness" means, as of any date
of
determination,
for the Company and its Subsidiaries and
Consolidated
Entities on
a consolidated basis, without
duplication, the sum of (a) the outstanding principal amount of
all obligations, whether current or long-term, for borrowed
money
(including Obligations
hereunder) and all obligations evidenced
by bonds, debentures, notes, loan agreements
or other similar
instruments, (b) the outstanding principal amount of all
purchase
money Indebtedness,
(c) all direct obligations
arising under
letters of
credit (including
standby and commercial), bankers'
acceptances,
bank guaranties,
surety bonds and similar
instruments, (d)
the outstanding amount
of all obligations
in
respect of
the deferred purchase
price of property or
services
(other than trade
accounts payable and accrued expenses in the
ordinary course
of business), (e)
Attributable Indebtedness in
respect of capital leases, Synthetic Lease Obligations and
other
Off-Balance Sheet
Liabilities,
(f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the
types
specified in clauses (a) through (e) above of Persons other
than
the Company, any
Subsidiary or any Consolidated Entity, and (g)
all Indebtedness of
the types referred to in clauses (a) through
(f) above of any partnership or joint venture (other than a
joint
venture that
is itself a corporation or limited liability
company) in which the Company or a Subsidiary or any
Consolidated
Entity is a general partner or joint venturer, unless such
Indebtedness is
non-recourse to the Company, such Subsidiary or
such Consolidated Entity.
"Consolidated Interest Charges" means, for any period, for
the Company and its
Subsidiaries and Consolidated Entities on a
consolidated basis,
the sum of (a) all interest, premium
payments, debt
discount, fees, charges and related expenses of
the Company
and its Subsidiaries
and Consolidated
Entities in
connection with
borrowed money (including capitalized interest)
or in connection with
the deferred purchase price of assets, in
each case to the extent treated as interest
in accordance with
GAAP, (b) the portion of rent expense of the
Company and
its
Subsidiaries and
Consolidated Entities
with respect to such
period under
capital
<PAGE> 9
leases that is treated
as interest in
accordance with GAAP, and
(c) all implicit interest in connection with Synthetic Lease
Obligations and other
Off-Balance Sheet
Liabilities.
"Consolidated Leverage
Ratio" means, as
of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness
as of such date to (b)
Consolidated EBITDA for the period of the
four fiscal quarters most recently ended.
"Consolidated Net
Income" means, for any
period, for
the
Company and
its Subsidiaries and Consolidated
Entities on a
consolidated basis,
the net income of the Company and its
Subsidiaries and
Consolidated Entities (excluding extraordinary
gains but including extraordinary losses) for that period.
"Consolidated Tangible Net Worth" means, as of any date of
determination,
for the Company and its Subsidiaries and
Consolidated Entities
on a consolidated basis, Shareholders'
Equity on such date minus the Intangible
Assets of the
Company
and its Subsidiaries and Consolidated Entities on such date.
"Consolidated Total Capitalization" means, as of any date of
determination, the
sum of (a)
Consolidated Funded
Indebtedness
and (b) Shareholders' Equity on such date.
"Contractual
Obligation" means,
as to any Person, any
provision of
any security issued by such Person or of any
agreement, instrument
or other undertaking to which such Person
is a party or by which it or any of its property is bound.
"Control" means the
possession, directly or indirectly, of
the power to direct or
cause the direction of the management or
policies of
a Person, whether
through the ability to
exercise
voting power,
by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
"Cost of
Acquisition"
means, with respect to any
Acquisition, as
at the date of entering into any agreement
therefor, the
sum of the following
(without duplication): (a)
the value of the Equity Interests of the Company or any
Subsidiary to
be transferred in
connection therewith,
(b) the
amount of any cash and fair market value of other property
(excluding property
described in
clause (a) and the unpaid
principal amount of
any debt instrument) given as consideration,
(c) the amount (determined by using the face amount or the
amount
payable at
maturity, whichever is
greater) of any
Indebtedness
incurred, assumed or acquired by the Company or any Subsidiary
in
connection with
such Acquisition, (d)
all additional
purchase
price amounts
in the form of earnouts and other contingent
obligations that
should be recorded on the financial statements
of the Company and its
Subsidiaries in accordance with GAAP, (e)
all amounts
paid in respect of covenants not to compete,
consulting agreements
that should be recorded on financial
statements of the Company and its Subsidiaries in accordance
with
GAAP, and other affiliated contracts in connection
with such
Acquisition, (f) the
aggregate fair market value of all other
consideration
given by the Company or any Subsidiary in
connection with
such Acquisition, and (g) out of pocket
transaction costs
for the services and
expenses of
attorneys,
accountants and
other consultants
incurred in
effecting such
transaction, and
other similar
transaction costs so
incurred.
For purposes
of determining the Cost of
Acquisition
for any
transaction, the
capital stock of the Company or a Subsidiary
shall be valued (A) in the case of capital
stock that is
then
designated
<PAGE> 10
as a
national
market
system
security
by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed
on a national securities exchange, the
average of the last
reported bid
and ask quotations or the last
prices reported
thereon, and (B) with
respect to any other Equity Interests, as
determined by a
committee composed of the disinterested members
of the Board of Directors of the Company and, if requested by
the
Administrative Agent, determined to be a reasonable valuation
by
the independent
public accountants referred to in Section
6.01(a), and
(C) with respect to any Acquisition
accomplished
pursuant to the exercise of options or warrants or the
conversion
of securities,
the Cost of
Acquisition shall include both the
cost of acquiring such option, warrant or convertible security
as
well as the cost of exercise or conversion.
"Credit Extension"
means each
of the following: (a) a
Borrowing and (b) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and
all other liquidation,
conservatorship, bankruptcy,
assignment
for the
benefit
of creditors, moratorium,
rearrangement,
receivership,
insolvency,
reorganization,
or
similar debtor
relief Laws of the United States or other
applicable
jurisdictions from
time to time in effect and
affecting the rights of creditors generally.
"Default" means any
event or condition that constitutes an
Event of Default or that, with the giving
of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate"
means (a) when used with respect to
Obligations other than
Letter of Credit Fees, an interest rate
equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any,
applicable to Base Rate Loans plus (iii) 2% per annum; provided,
however, that
with respect to a Eurocurrency
Rate Loan, the
Default Rate shall be an interest rate equal to the interest
rate
(including any Applicable Rate and any Mandatory Cost) otherwise
applicable to such Loan plus 2% per annum, and (b) when used
with
respect to Letter of
Credit Fees, a rate equal to the Applicable
Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed
to
fund any portion of
the Committed Loans, participations in L/C
Obligations or participations in Swing Line Loans required to
be
funded by it hereunder within one Business
Day of the date
required to
be funded by it
hereunder unless such
failure has
been cured,
(b) has otherwise failed to pay over to the
Administrative Agent
or any other Lender any other amount
required to be paid by
it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute
or
unless such
failure has been cured, or (c) has been deemed
insolvent or
become the subject of
a bankruptcy or
insolvency
proceeding.
"Designated Borrower"
has the meaning specified in the
introductory paragraph hereto.
"Designated Borrower Sublimit" means an amount equal to
the
lesser of the Aggregate Commitments and $50,000,000. The
Designated Borrower Sublimit is part of, and not in addition
to,
the Aggregate Commitments.
"Designated Borrower
Notice" has the meaning specified in
Section 2.14.
<PAGE> 11
"Designated Borrower
Request and Assumption Agreement" has
the meaning specified in Section 2.14.
"Disposition" or
"Dispose" means the sale, transfer,
license, sales
type or direct financing lease or other
disposition (including any sale and leaseback transaction) of
any
property by any
Person, including any sale, assignment, transfer
or other disposal, with or without
recourse, of any
notes or
accounts
receivable or
any rights and claims associated
therewith.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect
to
any amount
denominated in
Dollars, such amount,
and (b) with
respect to
any amount denominated
in any Alternative
Currency,
the equivalent
amount thereof in
Dollars as determined
by the
Administrative Agent or the L/C Issuer, as the case may be, at
such time on the basis of the Spot Rate (determined in respect
of
the most recent Revaluation Date) for the
purchase of
Dollars
with such Alternative Currency.
"Domestic Subsidiary"
means any Subsidiary that is organized
under the laws of any
state of the United States or the District
of Columbia.
"Eligible
Assignee" means
any Person that meets the
requirements to be an assignee under Section 10.06(b)(iii),
(v),
(vi) and (vii) subject to such consents, if
any, as may be
required under Section 10.06(b)(iii)).
"EMU" means
the economic and
monetary union in
accordance
with the Treaty of Rome 1957, as amended by
the Single European
Act 1986, the
Maastricht Treaty of 1992 and the Amsterdam Treaty
of 1998.
"EMU
Legislation"
means the legislative
measures of the
European Council
for the introduction of, changeover to or
operation of a single or unified European currency.
"Environmental Laws"
means any and all Federal, state,
local, and
foreign statutes, laws, regulations, ordinances,
rules, judgments,
orders, decrees, permits, concessions, grants,
franchises, licenses,
agreements or
governmental
restrictions
relating to
pollution and the
protection of the environment or
the release
of any materials into the environment,
including
those related
to hazardous
substances or wastes, air emissions
and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or
otherwise (including
any liability for damages, costs of
environmental
remediation, fines, penalties or indemnities), of
the Company,
any other Loan Party or any of
their respective
Subsidiaries directly or indirectly resulting from or based
upon
(a) violation of any
Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal
of any
Hazardous Materials, (c) exposure to any Hazardous Materials,
(d)
the release or threatened release of any Hazardous Materials
into
the environment
or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed
or
imposed with respect to any of the foregoing.
<PAGE> 12
"Equity Interests" means, with respect to any Person, all of
the shares
of capital stock of (or other
ownership or
profit
interests in) such Person, all of the warrants, options or
other
rights for the purchase or acquisition from such Person of
shares
of capital stock of
(or other ownership or profit interests in)
such Person,
all of the securities convertible into or
exchangeable for
shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of
such
shares (or such other
interests), and all of the other ownership
or profit interests in such Person (including partnership,
member
or trust interests therein), whether voting
or nonvoting,
and
whether or not such
shares, warrants, options, rights or other
interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate"
means any trade or business (whether or
not incorporated)
under common control with the Company within
the meaning
of Section 414(b) or
(c) of the Code (and
Sections
414(m) and (o) of the Code for purposes of provisions relating
to
Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan;
(b) a withdrawal by the Company
or any ERISA
Affiliate from a
Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a
substantial employer
(as
defined in
Section 4001(a)(2) of ERISA) or a cessation of
operations that
is treated as such a
withdrawal under
Section
4062(e) of
ERISA; (c) a complete
or partial withdrawal
by the
Company or
any ERISA Affiliate from a Multiemployer
Plan or
notification that a Multiemployer Plan is in reorganization;
(d)
the filing of a notice of intent to terminate, the treatment of
a
Plan amendment as a
termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment
of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any
liability under Title IV of ERISA, other than
for PBGC premiums due
but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Euro" and
"EUR"
mean the lawful currency of the
Participating Member States introduced in accordance with the
EMU
Legislation.
"Eurocurrency Rate"
means, for any
Interest Period with
respect to a Eurocurrency Rate Loan, the rate per annum equal
to
the British
Bankers Association
LIBOR Rate ("BBA
LIBOR"), as
published by
Reuters (or other commercially
available source
providing
quotations of
BBA LIBOR as designated by the
Administrative Agent
from time to time) at
approximately
11:00
a.m., London time, two Business Days prior to the commencement
of
such Interest Period,
for deposits in the relevant currency (for
delivery on the first
day of such Interest Period) with a term
equivalent to
such Interest Period. If such rate is not
available at
such time for any reason, then the
"Eurocurrency
Rate" for such Interest Period shall be
the rate per annum
determined by the
Administrative Agent to be the rate at which
deposits in the
relevant currency for delivery on the first day
of such Interest Period in Same Day Funds in
the approximate
amount of the Eurocurrency Rate Loan being
made, continued
or
converted by Bank of America and with a term equivalent
to such
Interest Period
would be offered by
Bank of America's London
Branch (or other Bank
of America branch or Affiliate) to major
banks in the London or
other offshore
<PAGE> 13
interbank market
for such currency at their request at
approximately 11:00
a.m. (London time) two
Business Days
prior
to the commencement of such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears
interest at a rate
based on the Eurocurrency Rate. Eurocurrency
Rate Loans
may be denominated in Dollars or in an
Alternative
Currency. All
Committed Loans
denominated in
an Alternative
Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified
in Section
8.01.
"Excluded
Assets" has
the meaning specified in the
definition of "Excluded Transaction".
"Excluded Transaction" has the meaning specified in Schedule
1.01(b).
"Excluded Taxes"
means, with respect to the Administrative
Agent, any Lender, the
L/C Issuer or any other recipient of any
payment to
be made by or on account of any
obligation of
any
Borrower hereunder,
(a) taxes imposed on
or measured by its
overall net
income (however
denominated), and
franchise taxes
imposed on it (in lieu
of net income taxes), by the jurisdiction
(or any political subdivision thereof)
under the Laws of
which
such recipient is
organized or in which its principal office is
located or,
in the case of any
Lender, in which its
applicable
Lending Office is
located, (b) any branch profits taxes imposed
by the United States or any similar tax
imposed by
any other
jurisdiction in which
such Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld
from
amounts payable to a Lender that has failed to comply with
clause
(A) of Section 3.01(e)(ii), and (d) , in
the case of a
Foreign
Lender (other
than an assignee
pursuant to a
request by the
Company under Section
10.13), any United States withholding tax
that (i) is required to be imposed on
amounts payable to
such
Foreign Lender
pursuant to the Laws in force at the time such
Foreign Lender
becomes a party hereto (or designates a new
Lending Office) or
(ii) is attributable to such Foreign Lender's
failure or inability (other than as a result of a Change in
Law)
to comply with clause
(B) of Section 3.01(e)(ii), except to the
extent that
such Foreign Lender
(or its assignor, if
any) was
entitled, at the time of designation of a new Lending Office
(or
assignment), to
receive additional
amounts from such
Borrower
with respect
to such withholding tax pursuant to Section
3.01(a)(i) or
(ii). Notwithstanding anything to
the contrary
contained in this definition, "Excluded Taxes" shall not
include
any withholding tax imposed at any time on payments made by or
on
behalf of a Foreign Obligor to any Lender hereunder or under
any
other Loan
Document, provided that such Lender shall have
complied with Section 3.01(e)(i).
"Existing Five-Year
Credit Agreement" has the meaning
specified in the Preliminary Statements hereto.
"Existing
Lender" has
the meaning specified in the
Preliminary Statements hereto.
"Existing Letters of
Credit" has the meaning specified in
Section1.01(b) hereto.
"Federal Funds Rate" means, for any day, the rate per annum
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
<PAGE> 14
such day 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 no such
rate is so published
on such next succeeding
Business Day, the
Federal Funds Rate for such day shall be
the
average rate (rounded
upward, if necessary,
to a whole multiple
of 1/100 of 1%)
charged to Bank of America on such day on
such
transactions as determined by the Administrative Agent.
"Fee
Letter" means the letter agreement, dated June 3, 2008,
among the Company, the Administrative Agent and BAS.
"Foreign Lender"
means, with respect to any Borrower, any
Lender that is
organized under the Laws of a jurisdiction other
than that in which such Borrower is resident
for tax purposes
(including such a Lender when acting in the capacity of
the L/C
Issuer). For
purposes of this
definition, the United
States,
each State thereof and
the District of Columbia shall be deemed
to constitute a single jurisdiction.
"Foreign Obligor"
means a Loan Party
that is a Foreign
Subsidiary.
"Foreign Subsidiary"
means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States,
a
State thereof or the District of Columbia.
"FRB" means
the Board of Governors
of the Federal
Reserve
System of the United States.
"Fund" means any
Person (other than a natural person) that
is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions
of
credit in the ordinary course of its business activities.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of
the
Accounting Principles
Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board or such other
principles
as may be approved by a significant segment
of the accounting
profession in
the United States, that are
applicable
to the
circumstances as
of the date of determination, consistently
applied.
"Governmental Authority" means the government of the United
States or any other nation, or of any political subdivision
thereof, whether
state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity
exercising executive,
legislative,
judicial, taxing,
regulatory or administrative powers or functions of or
pertaining
to government
(including any supra-national bodies such as the
European Union or the European Central Bank).
"Guarantee" means,
as to any Person, any
(a) obligation,
contingent or
otherwise, of such Person guaranteeing or having
the economic
effect of guaranteeing
any Indebtedness or
other
obligation payable or performable by another Person (the
"primary
obligor") in
any manner, whether directly or
indirectly,
and
including any obligation of such Person, direct or indirect,
(i)
to purchase or pay (or
advance or supply funds for the purchase
or payment
of) such Indebtedness
or other obligation,
(ii) to
purchase or
lease property, securities or services for the
purpose of
assuring the obligee
in respect of such Indebtedness
or other obligation of the payment or performance of such
Indebtedness or
other obligation, (iii) to maintain working
capital, equity
capital or any other financial statement
condition or liquidity
or level of income or cash flow of the
primary obligor so as
to enable the primary obligor to pay such
Indebtedness or other
obligation, or (iv) entered into for the
<PAGE> 15
purpose of assuring in any other manner the obligee in respect
of
such
Indebtedness or
other obligation of the payment or
performance thereof or
to protect such obligee against loss in
respect thereof (in whole or in part), or (b) Lien on any
assets
of such Person
securing any Indebtedness or other obligation of
any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent
or
otherwise, of any holder of such Indebtedness to obtain any
such
Lien); provided, that
"Guarantee" shall not include obligations
relating to
the endorsement of checks or other items for
collection in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated
or
determinable amount of the related primary obligation, or
portion
thereof, in respect of
which such Guarantee is made or, if not
stated or
determinable,
the maximum reasonably anticipated
liability in
respect thereof as
determined by the
guaranteeing
Person in good faith. The term "Guarantee" as
a verb has a
corresponding meaning.
"Hazardous Materials"
means all explosive
or radioactive
substances or
wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum
or petroleum
distillates, asbestos or asbestos-containing
materials,
polychlorinated
biphenyls, radon
gas, infectious or medical
wastes and all other substances or wastes of any nature
regulated
pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time,
without duplication,
all of the following, whether or not
included as indebtedness or liabilities in accordance with
GAAP:
(a) all obligations of such Person for
borrowed money
and
all obligations of such Person evidenced by bonds,
debentures, notes,
loan
agreements
or other similar
instruments;
(b) all direct or contingent obligations of such
Person arising under
letters of credit (including standby
and
commercial), bankers'
acceptances,
bank guaranties,
surety bonds and similar instruments;
(c) net obligations of such Person under any Swap
Contract;
(d) all obligations of
such Person to pay the deferred
purchase price
of property or services (other than trade
accounts payable in
the ordinary course of business and, in
each
case, not past due for more than 60 days and other than
accrued expenses in the ordinary course of business);
(e) indebtedness
(excluding prepaid
interest thereon)
secured by a
Lien on property owned or being
purchased by
such
Person
(including
indebtedness
arising
under
conditional sales
or other title retention agreements),
whether or not such indebtedness shall have been assumed by
such
Person or is limited in recourse;
<PAGE> 16
(f) capital
leases, Synthetic
Lease Obligations and
other Off-Balance Sheet Liabilities;
(g) all obligations of such Person to purchase,
redeem, retire,
defease or
otherwise make any payment in
respect of any Equity
Interest in such
Person or any other
Person, valued, in the
case of a redeemable preferred
interest, at
the greater of its voluntary or
involuntary
liquidation preference
plus accrued and unpaid dividends;
and
(h) all Guarantees of
such Person in respect of any of
the
foregoing.
For
all purposes hereof, the Indebtedness
of any Person
shall include
the Indebtedness of any partnership or joint
venture (other than a
joint venture that is itself a corporation
or limited liability
company) in which such Person is a general
partner or
a joint venturer,
unless such Indebtedness is non-
recourse to such Person. The amount of any net obligation
under
any Swap Contract on any date shall be
deemed to be
the Swap
Termination Value
thereof as of such date. The amount of any
capital lease,
Synthetic Lease
Obligation or other
Off-Balance
Sheet Liability as of
any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such
date.
Notwithstanding the foregoing, obligations of the Company or
its Subsidiaries
under or with respect to the Excluded
Transaction that are not obligations for borrowed money shall
not
constitute Indebtedness for purposes of this Agreement.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Information" has the meaning specified in Section 10.07.
"Intangible Assets" means assets that are considered to be
intangible assets under GAAP, including customer lists,
goodwill,
computer software,
copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges (but
excluding
any deferred
taxes), unamortized
debt discount and
capitalized
research and development costs.
"Interest Payment Date" means, (a) as to any Loan other than
a Base Rate Loan, the last day of each Interest Period
applicable
to such Loan and the Maturity Date;
provided, however, that if
any Interest
Period for a
Eurocurrency Rate Loan exceeds three
months, the respective
dates that fall every three months after
the beginning
of such Interest Period shall also
be Interest
Payment Dates;
and (b) as to any Base
Rate Loan (including a
Swing Line
Loan), the last Business Day of each
March, June,
September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan,
the period commencing on the date such Eurocurrency Rate Loan
is
disbursed or
converted to or
continued as a
Eurocurrency Rate
Loan and ending on the date one, two, three or six months
thereafter, as
selected by the
Company in its
Committed Loan
Notice or such other period that is twelve months or less
requested by
the Company and
consented to by all
the Lenders;
provided that:
<PAGE> 17
(i) any Interest
Period that would otherwise end on a
day
that is not a Business Day shall be extended to the next
succeeding Business
Day unless such Business Day falls in
another calendar
month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day
of a calendar month
(or on a day
for which
there is no numerically corresponding day
in the calendar
month at the end of
such Interest Period) shall end on the
last
Business Day of the
calendar month at the end of such
Interest Period; and
(iii) no
Interest Period shall
extend beyond the
Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of
(a)
the purchase
or other acquisition of capital
stock or other
securities of
another Person, (b) a
loan, advance
or capital
contribution to, Guarantee or assumption of debt of, or
purchase
or other acquisition of any other debt or equity participation
or
interest in, another
Person, including any partnership or joint
venture interest
in such other Person and any arrangement
pursuant to which the
investor Guarantees Indebtedness of such
other Person, or (c)
the purchase or other acquisition (in one
transaction or
a series of
transactions) of assets of another
Person that constitute a business unit. For purposes of covenant
compliance, the
amount of any
Investment shall be
the amount
actually invested, without adjustment for subsequent increases
or
decreases in the value of such Investment.
"IP
Rights" has the meaning specified in Section 5.17.
"IRS" means the United States Internal Revenue Service.
"ISP" means,
with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the
Institute
of International
Banking Law &
Practice, Inc. (or
such later
version thereof as may be in effect at the time of issuance).
"Issuer Documents"
means with respect
to any Letter of
Credit, the Letter of Credit Application, and any other
document,
agreement and instrument entered into by the L/C Issuer
and the
Company (or
any Subsidiary) or in
favor of the L/C
Issuer and
relating to such Letter of Credit.
"Laws" means,
collectively,
all international, foreign,
Federal, state and
local statutes, treaties, rules, guidelines,
regulations,
ordinances, codes and
administrative or
judicial
precedents or
authorities,
including the interpretation or
administration thereof by any Governmental Authority charged
with
the enforcement,
interpretation or administration thereof, and
all applicable
administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with,
any
Governmental
Authority, in each case whether or not having the
force of law.
"L/C
Advance" means, with respect to each Lender, such
Lender's funding
of its participation
in any L/C Borrowing
in
accordance with
its Applicable
Percentage. All
L/C Advances
shall be denominated in Dollars.
<PAGE> 18
"L/C
Borrowing" means an
extension of credit resulting from
a drawing under any Letter of Credit which has not been
reimbursed on
the date when made or
refinanced as a
Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.
"L/C
Credit Extension" means, with respect to any Letter of
Credit, the
issuance thereof or
extension of the
expiry date
thereof, or the increase of the amount thereof.
"L/C
Issuer" means (a) Bank
of America in its
capacity as
issuer of Letters of Credit hereunder, (b) Bank of Nova Scotia
in
its capacity
as issuer of Letters of Credit hereunder, (c)
CoBank, ACB
in its capacity as issuer of Letters of Credit
hereunder, (d)
The Bank of New York
Mellon in its capacity
as
issuer of Letters of
Credit hereunder, (e) SunTrust Bank in its
capacity as issuer of
Letters of Credit hereunder, and (f) any
successor issuer(s) of Letters of Credit hereunder. All singular
references to
the L/C Issuer shall
mean any L/C Issuer,
either
L/C Issuer, the L/C
Issuer that has issued the applicable Letter
of Credit, or all L/C Issuers, as the context may require.
"L/C
Obligations"
means, as at any date
of determination,
the aggregate amount
available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed
Amounts,
including all
L/C Borrowings.
For purposes
of computing the
amount available
to be drawn under any
Letter of Credit, the
amount of such Letter of Credit shall be determined in
accordance
with Section 1.10. For
all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its
terms
but any amount may still be drawn
thereunder by reason
of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall
be
deemed to be "outstanding" in the amount so
remaining available
to be drawn.
"Lender" has
the meaning specified in the introductory
paragraph hereto and, as the context requires, includes the
Swing
Line Lender and each L/C Issuer.
"Lending Office"
means, as to any
Lender, the
office or
offices of
such Lender described as such in such Lender's
Administrative Questionnaire, or such other office or offices
as
a Lender may from time to time notify the Company and the
Administrative Agent.
"Letter of
Credit" means any letter of credit issued
hereunder and shall
include the Existing Letters of Credit. A
Letter of Credit may be a commercial letter
of credit or a
standby letter of
credit. Letters of
Credit may be
issued in
Dollars or in an Alternative Currency.
"Letter of
Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit
in
the form from time to time in use by the L/C Issuer.
"Letter of
Credit Expiration
Date" means the day
that is
seven days prior to the Maturity Date then in effect (or, if
such
day is not a Business Day, the next preceding Business Day).
"Letter of Credit Fee"
has the meaning specified in Section
2.03(i).
"Letter of
Credit Sublimit" means an amount equal to
$100,000,000. The
Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Commitments.
<PAGE> 19
"Lien"
means any
mortgage,
pledge,
hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory
or
other), charge,
or preference, priority or other security
interest or
preferential arrangement in the nature of a security
interest of
any kind or nature whatsoever (including any
conditional sale
or other title retention agreement, any
easement, right
of way or other
encumbrance on title
to real
property, and any financing lease having substantially the same
economic effect as any of the foregoing).
"Loan" means
an extension of credit by a Lender to a
Borrower under Article
II in the form of a Committed Loan or a
Swing Line Loan.
"Loan Documents"
means this Agreement, each Designated
Borrower Request and Assumption Agreement, each Note, each
Issuer
Document and the Fee Letter.
"Loan Parties"
means, collectively,
the Company and
each
Designated Borrower.
"Mandatory Cost"
means, with respect to
any period, the
percentage rate per annum determined in accordance with
Schedule
1.01.
"Material Adverse
Effect" means
(a) a material adverse
change in,
or a material adverse effect upon,
the operations,
business,
properties,
liabilities (actual
or contingent),
condition (financial or otherwise) or prospects of the Company
or
the Company and its
Subsidiaries and Consolidated Entities taken
as a whole; (b) a
material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document to
which
it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against
any
Loan Party of any Loan Document to which it is a party.
"Material Subsidiary" means a Subsidiary that,
(a) at any time during
the then current fiscal year or
the
two then preceding fiscal years of the Company,
constituted more
than three percent (3%) of consolidated
total assets (as shown on the Company's consolidated balance
sheet) or Shareholders' Equity; or
(b) accounted
for more than three
percent (3%) of the
revenues of the
Company and its Subsidiaries, determined on
a
consolidated basis,
in respect of any one
or more of the
then
preceding twelve (12) fiscal quarters of the Company.
For purposes of this
definition, a Designated Borrower
shall be
deemed
to be a "Material Subsidiary"
hereunder.
"Maturity Date" means July 10, 2013.
"Multiemployer Plan" means any employee benefit plan of
the
type described
in Section 4001(a)(3) of ERISA,
to which the
Company or
any ERISA Affiliate makes or is
obligated to
make
contributions, or during the preceding five plan years, has
made
or been obligated to make contributions.
<PAGE> 20
"Net
Cash Proceeds" means,
with respect to the sale of any
asset by the Company or any Subsidiary, the remainder, if any,
of
(a) the sum of cash and cash equivalents
received in connection
with such sale (including any cash received
by way of deferred
payment pursuant to, or by monetization of, a note receivable
or
otherwise, but only as and when so received) minus (b) the sum
of
(i) the principal
amount of any Indebtedness that is secured by
such asset and that is
required to be repaid in connection with
the sale thereof, (ii) the out-of-pocket expenses incurred by
the
Company or any Subsidiary in connection with such sale and
(iii)
income taxes
reasonably estimated to be actually payable within
two years of the date
of the relevant asset sale as a result of
any gain recognized in connection therewith.
"Non-Material Subsidiary" means any Subsidiary that is not a
Material Subsidiary.
"Note" means a
promissory note made by a Borrower in favor
of a Lender evidencing Loans made by such Lender to such
Borrower, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants
and duties of, any
Loan Party arising
under any Loan Document or otherwise with respect to any Loan
or
Letter of Credit, whether direct or indirect
(including
those
acquired by assumption), absolute or contingent, due or to
become
due, now existing or hereafter arising and including interest
and
fees that accrue after
the commencement by or against any Loan
Party or any Affiliate thereof of any proceeding under any
Debtor
Relief Laws naming
such Person as the debtor in such proceeding,
regardless of whether
such interest and fees are allowed claims
in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any
Person as
of any date of determination thereof, without
duplication and to the extent not included as a liability on
the
consolidated balance sheet of such Person and its Subsidiaries
in
accordance with
GAAP:
(a) with respect to any asset
securitization
transaction (including
any accounts
receivable
purchase facility),
the unrecovered investment of purchasers or
transferees of assets so transferred and the principal amount
of
any recourse,
repurchase
or debt obligations incurred in
connection therewith; and (b) the monetary obligations under
any
financing lease or so-called "synthetic," tax retention
or off-
balance sheet
lease transaction
which, upon the application of
any Debtor Relief Law
to such Person or any of its Subsidiaries,
would be characterized as indebtedness.
"Organization
Documents" means, (a)
with respect
to any
corporation, the certificate or articles of incorporation and
the
bylaws (or equivalent
or comparable constitutive documents with
respect to any
non-U.S. jurisdiction); (b) with respect to any
limited liability
company, the certificate or articles of
formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form
of
business entity,
the partnership, joint venture or other
applicable agreement
of formation or organization and any
agreement, instrument,
filing or notice
with respect thereto
filed in connection
with its formation or organization with the
applicable
Governmental Authority
in the jurisdiction
of its
formation or organization and, if applicable, any certificate
or
articles of formation or organization of such entity.
"Other Taxes"
means all present or future stamp or
documentary taxes or any other excise or property taxes,
charges
or similar
levies arising from any payment made
hereunder or
<PAGE> 21
under any other Loan Document or from the execution, delivery
or
enforcement of, or
otherwise with respect to, this Agreement or
any other Loan Document.
"Outstanding Amount"
means (a) with respect
to Committed
Loans on any date, the
Dollar Equivalent amount of the aggregate
outstanding principal amount thereof after giving effect
to any
borrowings and prepayments or repayments of such Committed
Loans
occurring on such date; (b) with respect to Swing Line Loans on
any date, the aggregate outstanding principal
amount thereof
after giving
effect to any borrowings and prepayments or
repayments of such Swing Line Loans occurring on such date; and
(c) with respect to
any L/C Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such
L/C
Obligations on such
date after giving effect to any L/C Credit
Extension occurring on
such date and any other changes in the
aggregate amount
of the L/C Obligations as of such date,
including as
a result of any
reimbursements by the
Company of
Unreimbursed Amounts.
"Overnight Rate" means, for any day, (a) with respect to any
amount denominated in
Dollars, the greater of (i) the Federal
Funds Rate
and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender,
as the case may be, in
accordance with banking industry rules on
interbank
compensation, and (b)
with respect to any amount
denominated in an Alternative Currency, the rate of interest
per
annum at which overnight deposits in the
applicable Alternative
Currency, in
an amount
approximately equal to the amount with
respect to which such
rate is being determined, would be offered
for such day by a
branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 10.06(d).
"Participating Member State" means each state so described
in any EMU Legislation.
"PBGC" means the Pension
Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA),
other than
a
Multiemployer Plan, that is subject to Title IV of ERISA
and is
sponsored or maintained by the Company or any ERISA Affiliate
or
to which the Company or any ERISA Affiliate contributes or has
an
obligation to
contribute, or in the case of a multiple employer
or other plan described in Section 4064(a)
of ERISA, has
made
contributions at any
time during the immediately preceding five
plan years.
"Permitted Lines
of Business" means (a) meat (including
chicken, turkey,
beef, lamb and pork), poultry and seafood
production and
processing, (b) ocean transportation and related
ground transportation and support, (c) animal feed production
and
processing, (d) flour and feed milling, (e) power production,
(f)
commodity
merchandising, (g) baking, (h) citrus production and
processing, (i)
sugar production and processing, (j) the
production and
marketing
of alternative energy products
(including bio-diesel
and ethanol) and (k) the holding of cash
and investments
held for future use by the Company and its
Subsidiaries in
connection
with any of the aforementioned
Permitted Lines of Business.
<PAGE> 22
"Person" means
any natural person, corporation, limited
liability company,
trust, joint venture,
association,
company,
partnership, Governmental Authority or other entity.
"Plan" means any
"employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by the Company
or,
with respect to any
such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Priority
Indebtedness" means,
as of any date of
determination, the
sum (without duplication) of (a) all
Indebtedness of the Company secured by Liens permitted by
Section
7.01(n), plus (b) all
Indebtedness of Subsidiaries permitted by
Sections 7.03(c) and (j).
"Public Lender" has the meaning specified in Section 6.02.
"Purchase
Money Liens" means Liens securing Indebtedness
(including renewals,
extensions and
refinancings
thereof) in
respect of
capital leases, Synthetic Lease Obligations and
purchase money
obligations for fixed or capital assets; provided
in each case, that (a) such Liens do not at any time encumber
any
property other than
the property financed by such Indebtedness,
(b) the Indebtedness secured thereby does not exceed the cost
or
fair market
value, whichever is lower, of the
property being
acquired on
the date of
acquisition, (c) such
Lien shall
not
extend to or cover any
property other than property acquired or
constructed after
the Closing Date with
the proceeds of the
Indebtedness secured
thereby, and shall not secure Indebtedness
other than
such Indebtedness, (d) such property is either
expansionary in nature and thus not intended to replace
existing
assets of the company, or replaces formerly leased property,
and
(e) if
the Indebtedness secured thereby is owing to any
Subsidiary, the
property being
financed thereby has
not been
previously owned by the Company or any Subsidiary.
"Qualifying
Lender" shall
mean a Lender which is
beneficially entitled
to interest payable
to that Lender in
respect of an advance under a Loan Document and is:
(a)
a Lender: (i) which is a bank (as defined
for the
purpose of section 349
of the Taxes Act) making an advance
under a Loan Document; or (ii) in respect of an advance made
under a Loan Document by a person that
was a bank (as
defined for the purpose of section 349 of the Taxes Act)
at
the
time that that advance was made, and which is within the
charge to United Kingdom corporation tax as
respects any
payments of interest made in respect of that advance; or
(b) a Lender
which is (i) a company
resident in the
United Kingdom
for United Kingdom tax
purposes; (ii) a
partnership each
member of which is:
(aa) a company so
resident in the United
Kingdom; or (bb) a
company not
so
resident in the United
Kingdom which carries on a trade in
the
United Kingdom through a permanent
establishment
and
which brings
into account in computing its chargeable
profits (for the purposes of section 11(2) of the Taxes Act)
the
whole of any share of interest payable
in respect
of
that
advance that falls to it by reason of sections 114 and
115
of the Taxes Act; (iii) a company not so resident in the
United Kingdom
which carries on a trade in the United
Kingdom through a
permanent establishment and which brings
into
account
<PAGE> 23
interest payable in respect of that advance in computing the
chargeable profits (for the purposes of section 11(2) of the
Taxes Act) of the company; or;
(c) a Treaty
Lender.
"Rand" means the
lawful currency of the Republic of South
Africa.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties"
means, with respect to any Person, such
Person's
Affiliates and
the partners, directors, officers,
employees, agents
and advisors of such Person and of such
Person's Affiliates.
"Reportable Event"
means any of the
events set
forth in
Section 4043(c) of ERISA, other than events for which the 30
day
notice period has been waived.
"Request for Credit Extension" means (a) with respect to a
Borrowing, conversion
or continuation
of Committed Loans, a
Committed Loan
Notice, (b) with respect to an L/C Credit
Extension, a Letter of
Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders"
means, as of any date of determination,
Lenders having more than 50% of the Aggregate Commitments or,
if
the commitment of each Lender to make Loans and the obligation
of
the L/C Issuer to make L/C Credit Extensions have been
terminated
pursuant to Section
8.02, Lenders holding in the aggregate more
than 50% of the Total Outstandings (with the aggregate amount
of
each Lender's risk participation and funded participation in
L/C
Obligations and
Swing Line Loans being
deemed "held"
by such
Lender for
purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held
or
deemed held
by, any Defaulting Lender shall
be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer"
means the chief
executive officer,
president, chief
financial officer, treasurer or assistant
treasurer or
any vice president of
a Loan Party. Any
document
delivered hereunder that is signed by a Responsible Officer of
a
Loan Party shall be conclusively presumed to have been
authorized
by all necessary corporate, partnership
and/or other action
on
the part of such Loan Party and such Responsible Officer shall
be
conclusively presumed to have acted on behalf of such Loan
Party.
"Restricted
Payment" means
any dividend or other
distribution (whether in cash, securities or other property)
with
respect to
any capital stock or other Equity
Interest of
the
Company or
any Subsidiary, or any payment
(whether in cash,
securities or
other property),
including any sinking
fund or
similar deposit,
on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any
such
capital stock
or other Equity
Interest, or on
account of
any
return of capital to the Company's stockholders,
partners or
members (or the equivalent Person thereof).
"Revaluation Date" means (a) with respect to any Loan, each
of the following: (i)
each date of a Borrowing of a Eurocurrency
Rate Loan denominated
in an Alternative Currency, (ii)
<PAGE> 24
each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section
2.02,
and (iii) such additional dates as the Administrative Agent
shall
determine or
the Required Lenders shall require; and (b)
with
respect to any Letter
of Credit, each of the following:
(i)
each date of issuance
of a Letter of Credit denominated in
an
Alternative Currency,
(ii) each date of an amendment of any such
Letter of Credit
having the effect of increasing or
decreasing
the amount thereof
(solely with
respect to
the increased or
decreased amount),
(iii) each date of any payment by the L/C
Issuer under any
Letter of Credit
denominated in an Alternative
Currency, and (iv)
such additional dates as the
Administrative
Agent or the L/C
Issuer shall determine
or the Required Lenders
shall require.
"Same Day Funds" means (a) with respect to disbursements and
payments in Dollars,
immediately available funds, and (b) with
respect to disbursements and payments in an Alternative
Currency,
same day
or other funds as may be determined by the
Administrative Agent or the L/C Issuer, as the case may be, to
be
customary in
the place of disbursement or payment for the
settlement of international banking transactions in the
relevant
Alternative Currency.
"SEC" means the
Securities and Exchange Commission, or any
Governmental Authority
succeeding
to any of its principal
functions.
"Seaboard Flour"
means Seaboard Flour LLC, a Delaware
limited liability company.
"Senior Note
Agreements" means the Note Purchase Agreements
dated as of September 30, 2002, among the Company and the
purchasers of the Senior Notes.
"Senior Notes" means, collectively, the Company's (a) 5.80%
Senior Notes,
Series A, due
September 30, 2009,
issued in an
initial aggregate
principal amount of
$32,500,000,
(b) 6.21%
Senior Notes,
Series B, due
September 30, 2009,
issued in an
initial aggregate
principal amount of
$38,000,000,
(c) 6.21%
Senior Notes,
Series C, due
September 30, 2012,
issued in an
initial aggregate
principal amount of $7,500,000, and (d) 6.92%
Senior Notes,
Series D, due
September 30, 2012,
issued in an
initial aggregate principal amount of $31,000,000.
"Shareholders'
Equity" means,
as of any date of
determination, consolidated shareholders' equity of the Company
and its Subsidiaries and Consolidated
Entities as of that
date
determined in accordance with GAAP.
"Special Notice
Currency" means at any time an Alternative
Currency, other than the currency of a country that is a member
of the Organization
for Economic Cooperation and Development at
such time located in North America or Europe.
"Spot Rate" for a currency means the rate determined by
the
Administrative Agent or the L/C Issuer, as applicable, to be
the
rate quoted
by the Person acting
in such capacity as
the spot
rate for the purchase by such Person of such currency with
another currency
through its principal foreign exchange trading
office at approximately 11:00 a.m. on the date two Business
Days
prior to the date as of which the foreign exchange computation
is
made; provided that
the Administrative Agent or the L/C Issuer
may obtain
such spot rate from another financial
institution
designated by the Administrative Agent or the L/C Issuer
if the
Person acting in
such
<PAGE> 25
capacity does not have as of the date of determination a spot
buying rate for any
such currency;
and provided
further that
the L/C Issuer may use
such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.
"Subsidiary" of a
Person means a corporation, partnership,
joint venture, limited liability company or other business
entity
of which a majority of the shares of securities or other
interests having
ordinary voting power for the election of
directors or
other governing body (other than securities or
interests having such power only by reason of the happening of
a
contingency) are at
the time beneficially owned by such Person.
Unless otherwise
specified,
all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary
or
Subsidiaries of the Company.
"Swap Contract"
means
(a) any and all rate swap
transactions,
basis swaps,
credit derivative transactions,
forward rate
transactions,
commodity swaps, commodity options,
forward commodity
contracts, equity or
equity index
swaps or
options, bond
or bond price or bond
index swaps or options
or
forward bond
or forward bond price or forward bond index
transactions, interest
rate options, forward
foreign exchange
transactions,
cap transactions,
floor transactions, collar
transactions, currency
swap transactions,
cross-currency
rate
swap transactions, currency options, spot contracts, or any
other
similar transactions
or any combination of any of the foregoing
(including any
options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject
to
any master
agreement, and (b) any
and all transactions
of any
kind, and the related confirmations, which
are subject to
the
terms and conditions of, or governed by,
any form of master
agreement published by
the International Swaps and Derivatives
Association, Inc.,
any International Foreign Exchange Master
Agreement, or
any other master agreement (any such master
agreement, together
with any related schedules, a "Master
Agreement"), including any such obligations or liabilities
under
any Master Agreement.
"Swap Termination
Value" means, in respect of any one or
more Swap Contracts, after taking into account the effect of
any
legally enforceable
netting agreement
relating to such Swap
Contracts, (a)
for any date on or after the date such Swap
Contracts have
been
closed out and termination value(s)
determined in
accordance therewith,
such termination
value(s),
and (b) for any date
prior to the date referenced in clause (a),
the amount(s)
determined as the mark-to-market value(s) for such
Swap Contracts, as
determined based upon one or more mid-market
or other readily
available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or
any
Affiliate of a Lender).
"Swing Line
Borrowing" means a
borrowing of a Swing
Line
Loan pursuant to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line
lender
hereunder.
"Swing Line
Loan" has the meaning specified in Section
2.04(a).
"Swing Line
Loan Notice" means a
notice of a
Swing Line
Borrowing pursuant
to Section 2.04(b),
which, if in writing,
shall be substantially in the form of Exhibit B.
<PAGE> 26
"Swing Line Sublimit" means an amount equal to the lesser of
(a) $25,000,000
and (b) the Aggregate
Commitments. The
Swing
Line Sublimit is part
of, and not in addition to, the Aggregate
Commitments.
"Synthetic Lease
Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic, off-balance sheet
or
tax retention
lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear
on
the balance sheet of
such Person but which, upon the insolvency
or bankruptcy
of such Person, would be characterized as the
indebtedness of
such Person (without regard to accounting
treatment).
"TARGET Day"
means any day on which the Trans-European
Automated Real-time
Gross Settlement Express Transfer (TARGET)
payment system
(or, if such payment system ceases to be
operative, such other payment system (if any) determined
by the
Administrative Agent to be a suitable replacement) is open for
the settlement of payments in Euro.
"Tax
Confirmation"
means a
confirmation
by the
Administrative Agent, any Lender or an L/C Issuer, as
applicable,
that the person beneficially entitled to interest payable to
that
Lender in respect of
an advance under a Loan Document is either:
(a) a company resident in the United
Kingdom for United Kingdom
tax purposes; (b) a
partnership each member of which is: (i) a
company so resident in the United Kingdom; or (ii) a company
not
so resident in the United Kingdom which carries on a trade in
the
United Kingdom through a permanent establishment and which
brings
into account
in computing its chargeable profits (for the
purposes of
section 11(2) of the
Taxes Act) the whole
of any
share of interest
payable in respect of that advance that falls
to it by reason of
sections 114 and 115 of the Taxes Act; or (c)
a company not so
resident in the United Kingdom which carries on
a trade in the United Kingdom through a
permanent establishment
and which brings into account interest payable in respect of
that
advance in computing the chargeable profits (for the purposes
of
section 11(2) of the Taxes Act) of that company.
"Tax
Deduction" shall mean a deduction or withholding for or
on account of Taxes
from a payment under a Loan Document or Swap
Contract.
"Taxes" means all
present or future taxes, levies, imposts,
duties, deductions,
withholdings (including backup withholding),
assessments, fees or
other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties
applicable thereto.
"Taxes Act" shall mean the Income and Corporation Taxes
Act
1988.
"Total Outstandings"
means the aggregate Outstanding Amount
of all Loans and all L/C Obligations.
"Treaty Lender" shall mean a Lender which (a) is treated
as
a resident
of a Treaty State for the purposes of a double
taxation agreement
(a Treaty) and (b) does not carry on a
business in the United
Kingdom through a permanent establishment
with which that Lender's participation in the Loan is
effectively
connected.
<PAGE> 27
"Treaty State"
shall mean a
jurisdiction having a
double
taxation agreement (a Treaty) with the United Kingdom which
makes
provision for
full exemption from tax imposed
by the United
Kingdom on interest.
"Type" means,
with respect to a Committed Loan, its
character as a Base Rate Loan or a Eurocurrency Rate Loan.
"Unfunded Pension
Liability" means the excess of a Pension
Plan's benefit
liabilities under Section 4001(a)(16) of ERISA,
over the current value
of that Pension Plan's assets, determined
in accordance with the
assumptions used for funding the Pension
Plan pursuant to
Section 412 of the Code for the applicable plan
year.
"United States"
and "U.S." mean the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
"Yen" and "Y" mean the lawful currency of Japan.
1.03
Other Interpretive
Provisions. With
reference to this
Agreement and
each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
definitions
of terms herein shall apply
equally to
the singular and plural forms of the terms
defined.
Whenever the context
may require,
any pronoun
shall include
the corresponding masculine,
feminine and
neuter forms.
The
words "include," "includes" and
"including" shall be
deemed to be followed
by the phrase
"without limitation."
The word "will" shall be construed to
have
the same meaning and effect as the word "shall."
Unless the context requires otherwise, (i) any definition of
or
reference to any
agreement, instrument or other document
(including any Organization Document) shall be construed
as
referring to such agreement, instrument or other document as
from
time
to time amended, supplemented or otherwise
modified (subject to
any restrictions on
such amendments,
supplements or
modifications set
forth herein or
in any
other Loan
Document),
(ii) any reference
herein to any
Person shall
be construed to include such Person's
successors and
assigns, (iii) the words "herein," "hereof"
and
"hereunder," and words
of similar import when
used in
any
Loan Document, shall
be construed to refer to such Loan
Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer
to
Articles and Sections
of, and Exhibits and Schedules to,
the
Loan Document in which
such references appear, (v) any
reference to
any law shall include all statutory and
regulatory provisions consolidating, amending, replacing
or
interpreting such
law and any reference to any law or
regulation shall, unless otherwise specified, refer to such
law
or regulation as
amended, modified or supplemented from
time
to time, and (vi) the words "asset"
and "property"
shall be construed to
have the same meaning and effect and
to
refer to any and all
tangible and intangible assets and
properties,
including cash,
securities,
accounts
and
contract rights.
<PAGE> 28
(b) In
the computation of periods of
time from a
specified date to a
later specified date, the word "from"
means "from and including;" the words "to" and "until" each
mean
"to but excluding;" and the word
"through" means
"to
and
including."
(c) Section
headings herein and in
the other Loan
Documents are included for convenience of reference only and
shall not affect the interpretation of this Agreement or any
other Loan Document.
1.04
Accounting Matters. (a) Generally. All accounting terms
not specifically or
completely defined herein shall be construed
in conformity with,
and all financial data (including financial
ratios and other financial calculations) required to be
submitted
pursuant to this Agreement shall be prepared in conformity
with,
GAAP applied
on a consistent basis,
as in effect from time
to
time, applied in a
manner consistent with that used in preparing
the Audited
Financial
Statements,
except
as otherwise
specifically prescribed herein.
(b)
Changes in GAAP. If at any time any change in GAAP
would affect
the computation of any financial ratio or
requirement set forth
in any Loan Document, and either the
Company or
the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall
negotiate
in good faith to amend
such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP
(subject
to the approval of the
Required Lenders);
provided that,
until
so amended,
(i) such ratio
or requirement shall
continue to be
computed in accordance with GAAP prior to such change therein
and
(ii) the Company shall provide to the Administrative Agent and
the Lenders financial
statements and
other documents
required
under this Agreement or as reasonably requested hereunder
setting
forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change
in
GAAP.
(c)
Accounting for
Acquisitions and Dispositions. (i) With
respect to
any Acquisition having a Cost of Acquisition of
at
least $50,000,000 consummated on or after the Closing Date, for
each of the four fiscal quarter periods ending next following
the
date of any Acquisition, (x) Consolidated EBITDA shall include
the historical results of operations of the Person or assets so
acquired, and which amounts may include such adjustments as are
permitted under
Regulation
S-X of the SEC and reasonably
satisfactory to the Administrative Agent but (y) for purposes of
determining compliance with the provisions of Section 7.12(a),
any increase in
Consolidated Net
Income resulting
solely from
such pro forma treatment of such Acquisition shall be
disregarded;
(ii)For each
of the four periods of four fiscal
quarters ending next following the date of any Disposition
of a
Material Subsidiary or all or substantially all of the assets
of
a Material Subsidiary,
(i) Consolidated EBITDA shall exclude the
results of operations of the Person or assets so disposed of on
a
historical pro forma basis, and which amounts shall include
only
adjustments reasonably satisfactory to the Administrative
Agent;
and
(iii) For each of the four periods of four
fiscal
quarters ending next following the date of any Disposition
of a
Material Subsidiary or all or substantially all of the assets
of
a Material
Subsidiary,
Consolidated Interest Charges shall be
adjusted on
a historical pro forma
basis to eliminate
interest
expense accrued during such period on (i) any Indebtedness
repaid
or
<PAGE> 29
assumed from
the Material Subsidiary in connection with
such
Disposition or (ii) if such Disposition is of all of the Equity
Interests of the
Material Subsidiary, any Indebtedness of such
Material Subsidiary for which neither the Borrower nor any
other
Subsidiary is directly or indirectly liable.
(d)
Consolidation
of Variable Interest Entities. All
references herein
to consolidated financial statements of the
Company and
its Subsidiaries or to the determination of any
amount for the Company
and its Subsidiaries on a consolidated
basis or any similar
reference shall, in each case, be deemed to
include each variable
interest entity that the Company is
required to consolidate pursuant to FASB Interpretation
No. 46-
Consolidation of
Variable Interest Entities: an interpretation
of ARB No. 51 (January 2003), or any successor
pronouncement,
standard or
interpretation thereof, as if such variable interest
entity were a Subsidiary as defined herein.
1.05
Rounding. Any
financial ratios required to be
maintained by
the Company pursuant to the Agreement shall be
calculated by
dividing the appropriate component by the
other component,
carrying the result to
one place more than the
number of places by which such ratio is expressed herein
and
rounding the result up
or down to the nearest number (with a
rounding-up if there is no nearest number).
1.06
Exchange Rates;
Currency
Equivalents.
(a) The
Administrative Agent or the L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be
used
for calculating Dollar Equivalent amounts of Credit Extensions
and Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall
become effective
as of such Revaluation
Date and shall be the
Spot Rates employed in converting any
amounts between
the applicable currencies until the next
Revaluation Date
to occur. Except for purposes of financial
statements delivered
by Loan Parties hereunder or
calculating
financial covenants
hereunder or except as otherwise provided
herein, the
applicable
amount of any currency (other than
Dollars) for purposes of the Loan Documents shall be such
Dollar
Equivalent amount as so determined by the Administrative Agent
or
the L/C Issuer, as applicable.
(b)
Wherever in this Agreement in connection with a
Committed Borrowing, conversion, continuation or prepayment of
a
Eurocurrency Rate Loan or the issuance, amendment or extension
of
a Letter of Credit, an amount, such as a
required minimum
or
multiple amount,
is expressed in
Dollars, but
such Committed
Borrowing,
Eurocurrency Rate
Loan or Letter of Credit is
denominated in an Alternative Currency, such amount shall be
the
relevant Alternative
Currency Equivalent of such Dollar amount
(rounded to the
nearest unit of such Alternative Currency, with
0.5 of a unit being rounded upward), as determined by the
Administrative Agent or the L/C Issuer, as the case may be.
1.07
Additional Alternative Currencies. (a) The Company may
from time to time request that Eurocurrency
Rate Loans be made
and/or Letters of
Credit be issued in a currency other than
those specifically
listed in the definition of "Alternative
Currency;" provided
that such requested currency is a lawful
currency (other
than Dollars) that is readily available and
freely transferable and convertible into Dollars. In the case of
any such request with respect to the making of Eurocurrency
Rate
Loans, such
request shall be subject to the approval of the
Administrative Agent and the Lenders; and in the case of any
such
request with respect
to the
<PAGE> 30
issuance of Letters of Credit, such request shall
be subject to the
approval of the Administrative Agent and the
L/C Issuer.
(b)
Any such request shall
be made to
the Administrative
Agent not later than 10:00 a.m., 20 Business Days
prior to the
date of the desired
Credit Extension (or such other time or date
as may be agreed by the Administrative Agent and, in the case
of
any such request pertaining to Letters of Credit, the L/C
Issuer,
in its or their sole discretion). In the case of any such
request
pertaining to
Eurocurrency Rate Loans, the Administrative Agent
shall promptly notify each Lender thereof; and in the case of
any
such request
pertaining to Letters of Credit, the Administrative
Agent shall promptly
notify the L/C Issuer thereof. Each Lender
(in the case of any
such request pertaining to Eurocurrency Rate
Loans) or the L/C Issuer (in the case of a request pertaining
to
Letters of
Credit) shall notify
the Administrative
Agent, not
later than 10:00 a.m.,
ten Business Days after receipt of such
request whether
it consents, in its sole discretion, to the
making of Eurocurrency
Rate Loans or the issuance of Letters of
Credit, as the case may be, in such requested currency.
(c)
Any failure by a
Lender or the L/C Issuer, as the case
may be, to respond to such request within the time period
specified in
the preceding sentence shall be deemed to be a
refusal by such Lender
or the L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit
to
be issued in such requested currency. If the Administrative
Agent
and all the Lenders consent to making Eurocurrency Rate Loans in
such requested currency, the Administrative Agent shall so
notify
the Company and such currency shall thereupon be deemed for
all
purposes to be an Alternative Currency hereunder for purposes of
any Committed Borrowings of Eurocurrency Rate Loans; and if the
Administrative Agent and the L/C Issuer consent to the
issuance
of Letters
of Credit in such requested currency, the
Administrative Agent
shall so notify the Company and such
currency shall
thereupon be deemed for all purposes to be an
Alternative Currency
hereunder for purposes of any Letter of
Credit issuances.
If the Administrative Agent shall fail to
obtain consent
to any request for an additional
currency under
this Section 1.07, the
Administrative Agent
shall promptly so
notify the Company.
1.08
Change of Currency. (a) Each obligation of the
Borrowers to make a
payment denominated in the national currency
unit of any member
state of the European
Union that adopts
the
Euro as its lawful currency after the date hereof shall be
redenominated into
Euro at the time of such adoption (in
accordance with
the EMU Legislation). If, in relation to the
currency of any such
member state, the basis of accrual of
interest expressed in this Agreement in respect of that
currency
shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest
in respect of
the Euro, such expressed basis shall
be replaced
by such convention or practice with effect from the date on
which
such member
state adopts the Euro as its lawful currency;
provided that if any Committed Borrowing in the currency of such
member state is outstanding immediately prior to such date, such
replacement shall
take effect, with respect to such Committed
Borrowing, at the end
of the then current
Interest Period.
(b)
Each provision of this Agreement shall be subject
to
such reasonable
changes of construction as the
Administrative
Agent may from time to
time specify to be appropriate to reflect
the adoption
of the Euro by any member state of the
European
Union and any relevant market conventions or
practices relating
to the Euro.
<PAGE> 31
(c)
Each provision of this Agreement also
shall be subject
to such reasonable
changes of construction as the Administrative
Agent may from time to
time specify to be appropriate to reflect
a change in currency of any other country and any relevant
market
conventions or practices relating to the change in currency.
1.09
Times of Day. Unless otherwise specified,
all
references herein
to times of day shall be references to
Pacific time (daylight
or standard, as applicable).
1.10
Letter of Credit Amounts. Unless otherwise specified
herein, the amount of
a Letter of Credit at any time shall be
deemed to be the Dollar Equivalent of the stated amount of such
Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one
or
more automatic increases in the stated amount thereof, the
amount
of such Letter of
Credit shall
be deemed to be the Dollar
Equivalent of the
maximum stated amount of such Letter of Credit
after giving effect to
all such increases, whether or not
such
maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01
Committed Loans.
Subject to
the terms and
conditions
set forth herein, each Lender severally agrees to make
loans
(each such loan, a
"Committed Loan") to the Borrowers in Dollars
or in one or more Alternative Currencies from time to time, on
any Business Day during the Availability Period, in an aggregate
amount not to exceed
at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving
effect
to any Committed
Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate
Commitments, (ii) the aggregate Outstanding
Amount of the
Committed Loans of any Lender, plus such Lender's
Applicable Percentage
of the Outstanding Amount of all L/C
Obligations, plus
such Lender's
Applicable Percentage
of the
Outstanding Amount of all Swing Line Loans shall not exceed
such
Lender's Commitment,
(iii) the aggregate Outstanding Amount of
all Committed Loans
made to the Designated Borrowers shall not
exceed the Designated
Borrower Sublimit, and (iv) the aggregate
Outstanding
Amount of all Committed Loans denominated in
Alternative Currencies shall not exceed the Alternative
Currency
Sublimit. Within
the limits of each
Lender's Commitment,
and
subject to the other
terms and conditions hereof, the Borrowers
may borrow
under this Section
2.01, prepay under Section 2.05,
and reborrow
under this Section
2.01. Committed Loans
may be
Base Rate Loans or
Eurocurrency Rate Loans, as further provided
herein.
2.02
Borrowings,
Conversions and Continuations of Committed
Loans.
(a)
Each Committed
Borrowing, each conversion of Committed
Loans from
one Type to the other, and each continuation of
Eurocurrency Rate
Loans shall be made upon the Company's
irrevocable notice
to the Administrative Agent, which may be
given by telephone.
Each such notice must be received by the
Administrative Agent
not later than 10:00 a.m. (i) three
Business Days
prior to the requested date of any
Borrowing of,
conversion to
or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate
Loans denominated in Dollars to Base Rate Committed Loans, (ii)
four Business Days
(or five
<PAGE> 32
Business Days in the case of a Special Notice Currency) prior
to
the requested
date
of any Borrowing or continuation of
Eurocurrency Rate
Loans denominated in
Alternative
Currencies,
and (iii) on the requested date of any
Borrowing of Base
Rate
Committed Loans; provided, however, that if the Company wishes
to
request Eurocurrency
Rate Loans having an Interest Period other
than one, two, three or six months in duration as provided in
the
definition of
"Interest Period", the applicable notice must be
received by the
Administrative Agent not later than 10:00 a.m.
(i) four Business Days prior to the requested
date of such
Borrowing, conversion or continuation of Eurocurrency Rate
Loans
denominated in
Dollars, or (ii) five Business Days (or six
Business days in the case of a Special Notice Currency) prior
to
the requested date of
such Borrowing, conversion or continuation
of Eurocurrency Rate Loans denominated in Alternative
Currencies,
whereupon the
Administrative Agent shall give prompt notice to
the Lenders of such
request and determine whether the requested
Interest Period is
acceptable to all of them. Not later than
10:00 a.m., (i) three Business Days before the requested date
of
such Borrowing,
conversion or continuation of Eurocurrency Rate
Loans denominated in Dollars, or (ii) four Business Days (or
five
Business days in the case of a Special Notice Currency) prior
to
the requested date of
such Borrowing, conversion or continuation
of Eurocurrency Rate Loans denominated in Alternative
Currencies,
the Administrative
Agent shall notify the Company (which notice
may be by telephone) whether or not the requested Interest
Period
has been consented to by all the Lenders. Each telephonic notice
by the Company pursuant to this Section 2.02(a) must be
confirmed
promptly by
delivery to the
Administrative Agent of a written
Committed Loan Notice,
appropriately completed and signed by a
Responsible
Officer of
the Company. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans shall
be
in a principal amount of $5,000,000 or
a whole multiple of
$1,000,000 in
excess thereof.
Except as provided
in Sections
2.03(c) and 2.04(c), each Committed Borrowing of or conversion
to
Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof.
Each
Committed Loan
Notice (whether telephonic or written) shall
specify (i)
whether the Company is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type
to the
other, or a continuation of Eurocurrency
Rate Loans, (ii)
the
requested date of the
Borrowing, conversion or continuation, as
the case may be (which shall be a Business
Day), (iii) the
principal amount of Committed Loans to be borrowed, converted
or
continued, (iv) the Type of Committed Loans to be borrowed or
to
which existing
Committed Loans are
to be converted, (v) if
applicable, the
duration of the
Interest Period
with respect
thereto, (vi) the currency of the Committed Loans to be
borrowed,
and (vii) if applicable, the Designated Borrower. If the Company
fails to specify a currency in a Committed Loan Notice
requesting
a Borrowing, then the
Committed Loans so requested shall be made
in Dollars.
If the Company fails
to specify a Type of Committed
Loan in a Committed Loan Notice or if the Company fails to give
a
timely notice
requesting a conversion or continuation, then the
applicable Committed
Loans shall be made as, or converted to,
Base Rate Loans; provided, however, that in the case of a
failure
to timely request a continuation of
Committed Loans denominated
in an Alternative Currency, such Loans
shall be continued as
Eurocurrency Rate
Loans in their original currency with an
Interest Period of one month. Any automatic conversion
to Base
Rate Loans shall be
effective as of the last day of the Interest
Period then in effect with respect to the applicable
Eurocurrency
Rate Loans.
If the Company
requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice,
but fails to specify an Interest Period,
it will be deemed to have specified an
Interest Period of
one
month. No Committed
Loan may be converted into or continued as a
Committed Loan
<PAGE> 33
denominated in a different currency, but instead must be prepaid
in the original currency of such Committed Loan and reborrowed
in
the other currency.
(b)
Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the
amount (and
currency) of its Applicable Percentage of the
applicable Committed
Loans, and if no timely notice of a
conversion or
continuation
is provided by the Company, the
Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans or continuation of
Committed Loans denominated in a currency other than Dollars, in
each case as described in the preceding subsection. In the case
of a Committed Borrowing, each Lender shall make the amount of
its Committed Loan available to the Administrative Agent in Same
Day Funds at the Administrative Agent's Office for the
applicable
currency not later than 12:00 p.m., in the case of any Committed
Loan denominated in Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any
Committed Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Committed Loan Notice.
Upon satisfaction of
the applicable
conditions
set forth in
Section 4.02 (and,
if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make
all
funds so received available to the Company or the other
applicable Borrower
in like funds as received by the
Administrative Agent either by (i) crediting the account of
such
Borrower on the books of Bank of America with the amount of
such
funds or (ii) wire transfer of such funds, in each case in
accordance with
instructions provided
to (and reasonably
acceptable to) the Administrative Agent by the Company;
provided,
however, that
if, on the date the Committed Loan Notice
with
respect to such Borrowing denominated in Dollars is given by
the
Company, there are L/C
Borrowings outstanding, then the proceeds
of such Borrowing, first, shall be applied to the payment in
full
of any such L/C Borrowings, and, second, shall be made
available
to the applicable Borrower as provided above.
(c)
Except as otherwise provided herein, a Eurocurrency
Rate Loan may be continued or converted only
on the last day of
an Interest
Period for such
Eurocurrency Rate Loan. During the
existence of a
Default, no Loans may
be requested as, converted
to or continued as Eurocurrency Rate Loans (whether in Dollars
or
any Alternative
Currency) without
the consent of the Required
Lenders, and the Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an
Alternative Currency be prepaid, or redenominated into Dollars
in
the amount of the Dollar Equivalent thereof, on the last day of
the then current Interest Period with respect thereto.
(d)
The Administrative Agent shall promptly notify the
Company and
the Lenders of the interest rate
applicable to any
Interest Period for Eurocurrency Rate Loans upon determination
of
such interest
rate. At any time that Base Rate Loans are
outstanding, the
Administrative
Agent shall notify the
Company
and the Lenders of
any change in Bank of America's prime rate
used in determining
the Base Rate promptly
following the public
announcement of such change.
(e)
After giving effect to all Committed
Borrowings, all
conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there
shall not be more than
ten Interest Periods in effect with
respect to Committed Loans.
<PAGE> 34
2.03 Letters of Credit.
(a) The Letter of
Credit Commitment.
(i)
Subject to the terms and conditions set forth
herein,
(A) the L/C Issuer agrees, in reliance upon the agreements of
the
Lenders set forth in
this Section 2.03, (1) from time to time on
any Business
Day during the period from the Closing
Date until
the Letter of Credit
Expiration Date, to issue Letters of Credit
denominated in
Dollars or in one or
more Alternative Currencies
for the account of the
Company or its Subsidiaries, and to amend
or extend
Letters
of Credit previously issued by it, in
accordance with
subsection (b) below,
and (2) to honor drawings
under the Letters of
Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of
the
Company or its Subsidiaries and any drawings thereunder;
provided
that after giving effect to any L/C Credit Extension with
respect
to any Letter of Credit, (x) the Total Outstandings
shall not
exceed the
Aggregate Commitments,
(y) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such
Lender's
Applicable Percentage
of the Outstanding Amount of all L/C
Obligations, plus
such Lender's Applicable Percentage of the
Outstanding Amount of
all Swing Line Loans shall not exceed such
Lender's Commitment,
and (z) the Outstanding Amount of the
L/C
Obligations shall not exceed the Letter of Credit Sublimit.
Each
request by the Company
for the issuance or amendment of a Letter
of Credit shall be
deemed to be a
representation by the Company
that the L/C Credit
Extension so
requested complies with the
conditions set forth in the proviso to the preceding sentence.
Within the foregoing
limits, and
subject to the terms and
conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Company
may,
during the foregoing
period, obtain Letters of Credit to replace
Letters of Credit that
have expired or that have been drawn upon
and reimbursed.
All Existing Letters of Credit shall
be deemed
to have
been issued pursuant hereto, and from and after the
Closing Date shall be subject to and governed by the terms and
conditions hereof.
(ii)
The L/C Issuer shall not issue any Letter of Credit, if:
(A) subject
to Section
2.03(b)(iii), the expiry date
of
such requested Letter
of Credit (other than the Existing
Letters of Credit or
extensions or renewals
thereof) would
occur more than twelve
months after the date of issuance or
last
extension, unless
the Required Lenders have approved
such
expiry date; or
(B) the expiry date of
such requested Letter of Credit
would occur
after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date.
(iii) The L/C
Issuer shall not
be under any
obligation to
issue any Letter of Credit if:
(A) any order,
judgment or decree of
any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or
restrain the L/C Issuer from issuing such Letter of
Credit, or any Law
applicable to
the L/C Issuer or any
<PAGE> 35
request or directive (whether or not having the force of
law)
from any Governmental Authority with jurisdiction over
the
L/C Issuer shall
prohibit, or
request that the L/C
Issuer refrain
from, the issuance of letters of credit
generally or
such Letter
of Credit in
particular or shall
impose upon
the L/C Issuer with respect to such
Letter of
Credit any
restriction, reserve or capital requirement (for
which the L/C Issuer is not otherwise compensated hereunder)
not
in effect on the
Closing Date, or shall impose upon the
L/C
Issuer any
unreimbursed loss, cost or expense which was
not applicable on
the Closing Date and
which the L/C Issuer
in
good faith deems material to it;
(B) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer;
(C) except
as otherwise agreed by the
Administrative
Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount
less than $100,000, in
the case of a
commercial Letter of
Credit, or $50,000, in
the case of a
standby Letter of Credit;
(D) except
as otherwise agreed by the
Administrative
Agent and the
L/C Issuer,
such Letter of Credit is to be
denominated in
a currency other than Dollars or an
Alternative Currency;
(E) the L/C Issuer
does not as of the issuance date of
such
requested Letter of Credit issue Letters of
Credit in
the
requested currency;
(F) such Letter of Credit (other than the Existing
Letters of
Credit or extensions or renewals thereof)
contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(G) a default of any Lender's obligations to fund
under Section 2.03(c) exists or any Lender is at such time a
Defaulting Lender
hereunder, unless
the L/C Issuer has
entered into satisfactory arrangements with the Company or
such
Lender to eliminate the L/C Issuer's risk with respect
to
such Lender.
(iv)
The L/C Issuer shall not amend any Letter of
Credit,
excluding, except
with respect to the
requirement under Section
2.03(ii)(B) that
the expiry date of such Letter of Credit
not
occur after the Letter of Credit Expiration Date, all Existing
Letters of Credit, if the L/C Issuer would not be permitted at
such time to issue
such Letter
of Credit in its amended form
under the terms hereof.
(v)
The L/C Issuer shall be under no obligation to
amend
any Letter
of Credit if (A) the L/C Issuer would have no
obligation at
such time to issue such Letter of Credit in its
amended form under
the terms hereof, or (B) the
beneficiary of
such Letter of Credit
does not accept the
proposed amendment to
such Letter of Credit.
(vi)
The L/C Issuer shall
act on behalf of the Lenders with
respect to
any Letters of Credit
issued by it and the documents
associated therewith,
and the L/C Issuer shall have all of
the
benefits and immunities (A) provided to the Administrative
Agent
in
<PAGE> 36
Article IX
with
respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C
Issuer with
respect to such acts or omissions, and (B) as
additionally provided herein with respect to the L/C Issuer.
(b)
Procedures
for Issuance and Amendment of Letters
of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued
or amended,
as
the case may be, upon the request of the Company
delivered to
the L/C Issuer (with a copy to the
Administrative Agent)
in the form of a Letter of Credit
Application,
appropriately
completed and
signed
by a
Responsible Officer
of the Company.
Such Letter of
Credit
Application must
be received by the
L/C Issuer and the
Administrative Agent not later than 10:00 a.m. at least
two
Business Days
(or such other date and time as the
Administrative Agent
and the L/C Issuer may agree in a
particular instance in
their sole discretion)
prior to the
proposed issuance date or date of amendment, as the case may
be.
In the case of a
request for an
initial issuance of
a
Letter of Credit, such Letter of Credit Application
shall
specify in form and detail satisfactory to the L/C Issuer:
(A)
the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name
and
address
of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any
drawing thereunder; (F) the full text of any certificate
to
be
presented by such beneficiary in case of any drawing
thereunder; (G) the
purpose and nature of the requested
Letter of Credit; and
(H) such other matters as the L/C
Issuer may require.
In the case of a request for an
amendment of
any outstanding Letter
of Credit, such Letter
of
Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (A) the Letter of Credit to
be
amended; (B) the proposed date of amendment thereof
(which shall
be a Business Day); (C) the nature of the
proposed amendment;
and (D) such other matters as the
L/C
Issuer may require.
Additionally, the Company shall furnish
to
the L/C Issuer
and the Administrative Agent such
other
documents and
information
pertaining
to such requested
Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may
require.
(ii) Promptly after
receipt of any Letter of Credit
Application,
the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of
Credit Application from the Company and, if not, the L/C
Issuer will provide the Administrative Agent with a copy
thereof. Unless the
L/C Issuer has
received written notice
from
any Lender, the Administrative Agent or any Loan Party,
at
least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit,
that
one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on
the
requested date, issue
a Letter of Credit for the account of
the
Company (or the applicable Subsidiary) or enter into the
applicable amendment,
as the case may be, in each case
in
accordance with
the L/C Issuer's usual and customary
business practices.
Immediately
upon the issuance of
each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and
<PAGE> 37
unconditionally agrees
to, purchase from the L/C Issuer a
risk
participation
in such Letter of Credit in an amount
equal to the product
of such Lender's Applicable Percentage
times the amount of such Letter of Credit.
(iii) If the
Company so requests in any applicable
Letter of Credit Application, the L/C Issuer may, in its
sole
and absolute
discretion, agree
to issue a Letter of
Credit that
has automatic extension provisions (each, an
"Auto-Extension Letter of Credit"); provided that any such
Auto-Extension Letter of Credit must permit the L/C Issuer
to
prevent any such
extension at least once in each twelve-
month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary
thereof not
later than a day (the "Non-Extension Notice
Date") in each such twelve-month period to be
agreed upon
at
the time such Letter of Credit is issued. Unless
otherwise directed by
the L/C Issuer, the Company shall not
be
required to make a specific request to the L/C Issuer for
any
such extension. Once
an Auto-Extension Letter of Credit
has
been issued, the
Lenders shall
be deemed to have
authorized (but
may not require) the L/C Issuer to
permit
the
extension of such
