Exhibit 4.1
Execution Version
Lance, Inc.
(Name to be changed to SnydersLance, Inc.)
$100,000,000 5.72
% Senior Notes due June 12, 2017
Amended and Restated Note Purchase Agreement
Dated as of December 7, 2010
Table of Contents
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Section
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Heading
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Page
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Section 1.
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Notes
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2
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Section 1.1.
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Description of Notes
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2
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Section 1.2.
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Interest Rate
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3
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Section 1.3.
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Subsidiary Guaranty Agreement
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3
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Section 2.
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Amendment and Restatement; Continuance of Obligations
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3
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Section 2.1.
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Amendment and Restatement of Original Note Agreement and Original Notes
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3
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Section 2.2.
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Several Obligations
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3
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Section 2.3.
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Survival of Obligations
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3
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Section 2.4
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Amendment of Agreement and Notes Upon Name Change
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4
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Section 3.
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Closing
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4
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Section 4.
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Conditions to Closing
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4
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Section 4.1.
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Representations and Warranties
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4
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Section 4.2.
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Performance; No Default
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5
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Section 4.3.
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Compliance Certificates
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5
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Section 4.4.
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Opinions of Counsel
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5
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Section 4.5.
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Exchange of Notes Permitted By Applicable Law, Etc.
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5
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Section 4.6.
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Merger Agreement
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5
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Section 4.7.
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Bank Credit Agreements
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6
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Section 4.8.
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Payment of Special Counsel Fees
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6
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Section 4.9.
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Private Placement Number
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6
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Section 4.10.
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Changes in Corporate Structure
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7
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Section 4.11.
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Amendment Fee
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7
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Section 4.12.
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Proceedings and Documents
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7
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Section 5.
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Representations and Warranties of the Note Parties
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7
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Section 5.1.
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Organization; Power and Authority
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7
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Section 5.2.
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Authorization, Etc.
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8
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Section 5.3.
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Disclosure
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8
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Section 5.4.
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Organization and Ownership of Shares of Subsidiaries; Affiliates
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8
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Section 5.5.
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Financial Statements; Material Liabilities
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9
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Section 5.6.
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Compliance with Laws, Other Instruments, Etc.
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9
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Section 5.7.
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Governmental Authorizations, Etc.
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9
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-i-
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Section
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Heading
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Page
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Section 5.8.
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Litigation; Observance of Agreements, Statutes and Orders
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9
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Section 5.9.
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Taxes
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10
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Section 5.10.
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Title to Property; Leases
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10
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Section 5.11.
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Licenses, Permits, Etc.
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10
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Section 5.12.
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Compliance with ERISA
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11
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Section 5.13.
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Private Offering
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11
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Section 5.14.
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Margin Regulations
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11
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Section 5.15.
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Existing Indebtedness; Future Liens
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12
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Section 5.16.
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Foreign Assets Control Regulations, Etc.
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12
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Section 5.17.
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Status under Certain Statutes
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13
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Section 5.18.
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Environmental Matters
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13
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Section 5.19.
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No Guarantors of Material Debt Facilities
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13
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Section 6.
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Representations of the Noteholders
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14
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Section 6.1.
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Purchase for Investment
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14
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Section 6.2.
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Source of Funds
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14
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Section 7.
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Information as to Company
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16
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Section 7.1.
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Financial and Business Information
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16
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Section 7.2.
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Officers Certificate
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18
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Section 7.3.
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Visitation
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19
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Section 8.
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Payment and Prepayment of the Notes
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19
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Section 8.1.
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Maturity
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19
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Section 8.2.
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Optional Prepayments with Make-Whole Amount
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19
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Section 8.3.
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Allocation of Partial Prepayments
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20
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Section 8.4.
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Maturity; Surrender, Etc.
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20
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Section 8.5.
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Purchase of Notes
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20
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Section 8.6.
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Make-Whole Amount
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20
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Section 8.7.
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Change in Control
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22
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Section 9.
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Affirmative Covenants
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24
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Section 9.1.
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Compliance with Law
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24
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Section 9.2.
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Insurance
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24
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Section 9.3.
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Maintenance of Properties
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24
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Section 9.4.
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Payment of Taxes and Claims
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25
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Section 9.5.
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Corporate Existence, Etc.
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25
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Section 9.6.
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Books and Records
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25
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Section 9.7.
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Subsidiary Guarantors
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25
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Section 9.8.
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Priority of Obligations
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26
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Section 10.
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Negative Covenants
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27
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Section 10.1.
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Transactions with Affiliates
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27
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-ii-
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Section
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Heading
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Page
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Section 10.2.
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Merger, Consolidation, Etc.
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27
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Section 10.3.
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Line of Business
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28
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Section 10.4.
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Terrorism Sanctions Regulations
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28
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Section 10.5.
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Liens
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28
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Section 10.6.
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Sale of Assets, Etc.
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30
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Section 10.7.
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Certain Financial Ratios
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31
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Section 10.8.
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Limitation on Subsidiary Indebtedness
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31
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Section 10.9.
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Restricted Payments
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32
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Section 11.
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Events of Default
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32
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Section 12.
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Remedies on Default, Etc.
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34
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Section 12.1.
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Acceleration
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34
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Section 12.2.
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Other Remedies
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35
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Section 12.3.
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Rescission
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35
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Section 12.4.
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No Waivers or Election of Remedies, Expenses, Etc.
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35
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Section 13.
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Registration; Exchange; Substitution of Notes
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36
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Section 13.1.
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Registration of Notes
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36
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Section 13.2.
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Transfer and Exchange of Notes
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36
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Section 13.3.
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Replacement of Notes
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37
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Section 14.
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Payments on Notes
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37
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Section 14.1.
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Place of Payment
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37
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Section 14.2.
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Home Office Payment
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37
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Section 15.
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Expenses, Etc.
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38
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Section 15.1.
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Transaction Expenses
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38
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Section 15.2.
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Survival
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38
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Section 16.
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Survival of Representations and Warranties; Entire Agreement
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38
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Section 17.
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Amendment and Waiver
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39
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Section 17.1.
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Requirements
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39
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Section 17.2.
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Solicitation of Holders of Notes
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39
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Section 17.3.
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Binding Effect, Etc.
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39
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Section 17.4.
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Notes Held by Company, Etc.
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40
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Section 18.
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Notices
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40
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Section 19.
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Reproduction of Documents
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40
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-iii-
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Section
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Heading
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Page
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Section 20.
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Confidential Information
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41
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Section 21.
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Assignment and Assumption; Indemnification; Consent
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42
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Section 21.1.
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Assignment of Obligations
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42
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Section 21.2.
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Assumption of Obligations
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42
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Section 21.3.
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Indemnification
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42
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Section 21.4.
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Consent
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42
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Section 22.
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Release of Guarantee Agreement
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42
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Section 23.
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Miscellaneous
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42
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Section 23.1.
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Successors and Assigns
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42
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Section 23.2.
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Payments Due on Non-Business Days
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43
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Section 23.3.
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Accounting Terms
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43
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Section 23.4.
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Severability
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43
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Section 23.5.
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Construction, etc.
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43
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Section 23.6.
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Counterparts
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43
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Section 23.7.
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Governing Law
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44
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Section 23.8.
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Jurisdiction and Process; Waiver of Jury Trial
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44
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Signature
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45
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-iv-
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Schedule A
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Information Relating to Noteholders
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Schedule B
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Defined Terms
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Schedule 5.3
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Disclosure Materials
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Schedule 5.4
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Subsidiaries, Affiliates, Directors and Senior Officers
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Schedule 5.5
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Financial Statements
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Schedule 5.15
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Existing Indebtedness
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Exhibit 1
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Form of 5.72% Senior Note due June 12, 2017
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Exhibit
4.4(a)
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Form of Opinion of Special Counsel for the Company
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Exhibit
4.4(b)
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Form of Opinion of Special Counsel for the Noteholders
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Exhibit
9.7
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Form of Subsidiary Guaranty Agreement
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-v-
Lance, Inc.
8600 South Boulevard
Charlotte, North Carolina 28273
$100,000,000 5.72% Senior Notes due June 12, 2017
Dated as of
December 7, 2010
To Each of the Noteholders Listed in
Schedule A Hereto
:
Ladies and Gentlemen:
This
Amended and Restated Note Purchase Agreement
(this
Agreement
) is entered into
as of December 7, 2010 by and among
Lance, Inc.,
a company incorporated under the laws of
North Carolina (the
Company
),
Snyders of Hanover Manufacturing, Inc.,
a company
incorporated under the laws of Pennsylvania (
Snyders Manufacturing
),
Snyders of Hanover,
Inc.
, a company incorporated under the laws of Pennsylvania (
Snyders
), and the noteholders
named in Schedule A attached hereto (each a
Noteholder
and collectively the
Noteholders
).
Recitals
A. Snyders Manufacturing, Snyders and certain institutional investors (the
Original
Noteholders
) previously entered into that certain Note Purchase and Guarantee Agreement dated as
of June 12, 2007 (the
Original Note Agreement
), pursuant to which, among other things, (i)
Snyders Manufacturing sold to the Original Noteholders its 5.72% Senior Notes due June 12, 2017 in
the original aggregate principal amount of $100,000,000 (the
Original Notes
) and (ii) Snyders
agreed to guarantee the Guaranteed Obligations pursuant to the Guarantee Agreement (each as defined
in the Original Note Agreement).
B. Pursuant to that certain Agreement and Plan of Merger, dated as of July 21, 2010, as
amended by that certain Amendment No. 1 to Agreement and Plan of Merger, dated as of September 30,
2010 (the
Merger Agreement
), by and among the Company, Snyders, and LIMA Merger Corp., a company
incorporated under the laws of Pennsylvania (
Merger Sub
), Merger Sub will merge with and into
Snyders, with Snyders being the surviving corporation (the
Merger
).
C. Shortly after the consummation of the Merger, the Company will change its name from Lance,
Inc. to Snyders-Lance, Inc.
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Lance, Inc.
|
|
Amended and Restated Note Purchase Agreement
|
D. In connection with the Merger, each of Snyders and Snyders Manufacturing desires to
assign all of their right, title and interest in and to the Original Note Agreement and their
obligations thereunder and under the Original Notes (in the case of Snyders Manufacturing) to the
Company, and the Company desires to assume all of such obligations and be bound by each of the
covenants, terms and provisions of the Original Note Agreement and the Original Notes, as amended
and restated by this Agreement and the Notes (referred to below), respectively, all in accordance
with and as set forth in Section 21 of this Agreement (the
Assignment and Assumption
).
E. In further connection with the Merger and the Assignment and Assumption, the Company
desires to have Snyders released from the Guarantee Agreement and its obligation to guaranty the
Original Notes and the other Guaranteed Obligations under the Original Note Agreement, all as
further set forth in Section 22 of this Agreement (the
Guaranty Release
).
F. The consummation of the Assignment and Assumption and the Guaranty Release requires the
prior written consent of the Noteholders, and as a condition to granting such prior written
consent, the Noteholders have required, among other things, that the Company, Snyders
Manufacturing and Snyders amend and restate the Original Note Agreement, the Original Notes and
certain other Financing Agreements all on the terms and conditions set forth herein.
Agreements
In consideration of the recitals and the mutual covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree that the Original Note Agreement (including all Schedules and Exhibits thereto)
and the Original Notes shall be amended and restated in their entirety as of the date hereof as
follows:
Section 1.
Notes
.
Section 1.1. Description of Notes
. Upon satisfaction of the conditions set forth in Sections
3 and 4, as of the date of Closing, the outstanding Original Notes shall be amended and restated in
their entirety (other than the principal amount thereof and the payee named therein) in the form
set forth in Exhibit 1 and shall be reissued by the Company to the respective Noteholders, as
provided in Section 3. The term
Notes
as used herein and in the other Financing Agreements shall
include each amended and restated Note delivered pursuant to this Agreement to replace the
outstanding Original Note and any notes issued in substitution therefor pursuant to Section 13 of
this Agreement. Each amended and restated Note shall be deemed outstanding under and issued
pursuant to the terms of this Agreement and entitled to all the benefits and agreements of this
Agreement. All principal, interest and other amounts owed as of the Closing on the Original Notes
shall continue from and after the Closing to be owing and due and payable in accordance with the
terms of the Notes, respectively. Certain capitalized terms used in this Agreement are defined in
Schedule B; references to a
Schedule
or an
Exhibit
are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement.
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Section 1.2. Interest Rate
.
Each Note will be dated the date to which interest has been paid
on the Original Note surrendered in exchange therefor, and will bear interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal thereof from such date at
the rate of 5.72% per annum, payable semi-annually in arrears on the 12th day of June and December
in each year and at maturity commencing on December 12, 2010, until such principal sum shall have
become due and payable (whether at maturity, upon notice of prepayment or otherwise) and interest
(so computed) on any overdue principal, interest or Make-Whole Amount from the due date thereof
(whether by acceleration or otherwise) at the Default Rate until paid. Each Note will be expressed
to mature on June 12, 2017 and will otherwise be substantially in the form attached hereto as
Exhibit 1. Accrued and unpaid interest in respect of any of the Original Notes as of the date of
Closing will be due and payable on December 12, 2010.
Section 1.3. Subsidiary Guaranty Agreement
. The payment and performance by the Company of its
covenants and agreements hereunder and under the Notes may from time to time be unconditionally
guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty Agreement. As of the
date of Closing there are no Subsidiary Guarantors.
Section 2.
Amendment and Restatement; Continuance of Obligations
.
Section 2.1. Amendment and Restatement of Original Note Agreement and Original Notes
. Upon
execution and delivery of this Agreement by each of the Company, Snyders Manufacturing, Snyders
and each Noteholder, and the satisfaction of the conditions set forth in Sections 3 and 4 hereof,
the Original Note Agreement and the Original Notes shall be amended and restated in their entirety
into this Agreement and the Notes, respectively.
Section 2.2. Several Obligations
. The obligations of each Noteholder hereunder are several and
not joint obligations, and no Noteholder shall have any obligation or liability to any Person for
the performance or nonperformance by any other Noteholder hereunder.
Section 2.3. Survival of Obligations
. All payment obligations of Snyders Manufacturing and
Snyders under the Original Note Agreement and the Original Notes (in the case of Snyders
Manufacturing) (including, in each case, without limitation, reimbursement obligations in respect
of costs, expenses and fees of or incurred by the Noteholders) shall survive the amendment and
restatement of the Original Note Agreement into this Agreement and the amendment and restatement of
the Original Notes into the Notes, and all such payment obligations, together with all other
obligations, covenants and agreements therein, shall continue in full force and effect without
novation or amendment or modification (other than as amended or modified by the terms of this
Agreement and the Notes, respectively). Each of Snyders Manufacturing and Snyders hereby
reaffirms, ratifies and
confirms in all respects each and every such obligation, covenant and agreement made in the
Original Note Agreement and the Original Notes and, pursuant to Section 21, hereby assigns to the
Company all of their right, title and interest to, and all of their obligations under, such
Original Note Agreement and Original Notes (in the case of Snyders Manufacturing), as amended and
restated by this Agreement and the Notes, respectively, and the Company hereby ratifies and
confirms that all such obligations,
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covenants and agreements are its legal, valid and binding
obligations enforceable against it in accordance with their respective terms.
Section 2.4 Amendment of Agreement and Notes Upon Name Change.
Concurrently with the filing
and effectiveness of an amendment, if any, to the Companys Articles of Incorporation changing the
Companys name from Lance, Inc. to Snyders-Lance, Inc., this Agreement and the Notes will
automatically be amended to reflect such name change and each reference herein and therein, as the
case may be, to Lance, Inc. will be deemed to refer to Snyders-Lance, Inc.. At the option of
each Noteholder, such Noteholder may, pursuant to Section 13, request that each of its Notes be
exchanged for a replacement Note in the form of Exhibit 1, with such changes thereto as giving
effect to the amendment, if any, in this Section 2.4.
Section 3.
Closing
.
The execution and delivery of this Agreement and of the Notes to be exchanged for the Original
Notes shall occur at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago,
Illinois 60603, at 10:00 a.m
.
Chicago time, at a closing (the
Closing
) on December 7,
2010 or on such other Business Day thereafter as may be mutually agreed upon by the Company and the
Noteholders. At such Closing, the Company will deliver to each Noteholder a Note for the full
outstanding principal amount of each Original Note held by such Noteholder (unless different
denominations are specified by such Noteholder), dated the date through which interest has been
paid on the corresponding Original Note and registered in such Noteholders name (or in the name of
such Noteholders nominee) as provided in Schedule A. If at the Closing the Company shall fail to
tender such Notes to any Noteholder as provided above in this Section 3, or any of the conditions
specified in Section 4 shall not have been fulfilled to such Noteholders satisfaction, then such
Original Note Agreement and such Original Notes, together with all other agreements, instruments
and documents delivered in connection therewith shall continue in full force and effect without
amendment as contemplated by this Agreement.
If for any reason the Original Note held by any Noteholder is not delivered to the Company on
the date of Closing, the Company shall deposit the Note to be delivered to the Noteholder with the
Noteholders special counsel, Chapman and Cutler LLP, for delivery against receipt of the Original
Note held by the Noteholder.
Section 4.
Conditions to Closing
.
Each Noteholders obligation to consent to (i) the Assignment and Assumption, (ii) the
Guaranty Release and (iii) the amendment and restatement of the Original Note Agreement into
this Agreement and the Original Notes into the Notes at the Closing, is subject to the
fulfillment to such Noteholders satisfaction, prior to or at the Closing, of the following
conditions:
Section 4.1. Representations and Warranties
. The representations and warranties of the
Company and each other Note Party, as applicable, in this Agreement shall be correct when made and
at the time of the Closing.
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Section 4.2. Performance; No Default
. The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed or complied with by
the Company prior to or at the Closing and after giving effect to the issuance of the Notes and the
execution and delivery of this Agreement no Default or Event of Default shall have occurred and be
continuing.
Section 4.3. Compliance Certificates
.
(a)
Officers Certificate
. The Company shall have delivered to such Noteholder an Officers
Certificate, dated the date of Closing, certifying that the conditions specified in Sections 4.1,
4.2, 4.6 and 4.10 have been fulfilled.
(b)
Secretarys Certificate
. The Company shall have delivered to such Noteholder a
certificate of its Secretary or an Assistant Secretary, dated the date of Closing, certifying as to
the resolutions attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes, this Agreement and the Merger Agreement.
Section 4.4. Opinions of Counsel
. Such Noteholder shall have received opinions in form and
substance satisfactory to such Noteholder, dated the date of Closing (a) from K&L Gates, LLP,
counsel for the Company, covering the matters set forth in Exhibit 4.4(a) and covering such other
matters incident to the transactions contemplated hereby as such Noteholder or its counsel may
reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the
Noteholders) and (b) from Chapman and Cutler LLP, the Noteholders special counsel in connection
with such transactions, substantially in the form set forth in Exhibit 4.4(b) and covering such
other matters incident to such transactions as such Noteholder may reasonably request.
Section 4.5. Exchange of Notes Permitted By Applicable Law, Etc
. On the date of the Closing
the transactions contemplated by this Agreement, including the exchange of the Original Notes of
such Noteholder for the Notes, shall (a) be permitted by the laws and regulations of each
jurisdiction to which such Noteholder is subject, without recourse to provisions (such as
section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance
companies without restriction as to the character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Noteholder to any tax,
penalty or liability under or pursuant to any applicable law or regulation, which law or regulation
was not in effect on the date hereof. If requested by such Noteholder, such Noteholder shall have
received an Officers Certificate certifying as to such matters of fact as such Noteholder may
reasonably specify to enable such Noteholder to determine whether such purchase is so permitted.
Section 4.6. Merger Agreement
. The Merger Agreement shall be in full force and effect, shall
not have been amended or modified in any material respect, and the conditions set forth in the
Merger Agreement shall have been satisfied in full unless waived by the Company. The transactions
contemplated by the Merger Agreement shall be consummated in accordance
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with the terms and
provisions of the Merger Agreement. The Company shall have furnished to the Noteholders and their
special counsel an executed copy of the Merger Agreement, the Certificate of Merger filed with the
Secretary of State of the State of Pennsylvania evidencing the merger of Snyders and Merger Sub
and all material documents and instruments to be delivered pursuant thereto.
Section 4.7. Bank Credit Agreements
. (a) The Bank Credit Agreement shall have been executed
and delivered by the Company, the Lenders and the Administrative Agent. The Company shall have
furnished to the Noteholders and their special counsel an executed copy of the Bank Credit
Agreement, including all amendments thereto, certified as true and correct by a Senior Financial
Officer on behalf of the Company.
(b) A Second Amendment to be dated December 7, 2010 to the Existing Credit Agreement shall
have been executed and delivered by the Company, Tamming Foods Ltd., the applicable lenders and the
administrative agent, which Second Amendment provides for, among other things, (i) consent to the
Merger, (ii) the amendment of certain covenants and events of default to be in line with the Bank
Credit Agreement, (iii) upon the effectiveness of the Bank Credit Agreement, the repayment in full
of all revolving loans and other extensions of credit under the Existing Credit Agreement (other
than the $50,000,000 term loan) and the termination of all revolving loan credit commitments under
the Existing Credit Agreement, and (d) if the Bank Credit Agreement is not effective concurrently
with the occurrence of the Merger, permitting revolving loans under the Existing Credit Agreement
to be used to fund the dividends in connection with the Merger. The Company shall have furnished
to the Noteholders and their special counsel an executed copy of the Second Amendment to the
Existing Credit Agreement, certified as true and correct by a Senior Financial Officer on behalf of
the Company.
(c) An instruction letter by the Company to the Administrative Agent under the Bank Credit
Agreement shall have been executed and delivered, which instruction letter provides that the
Administrative Agent apply the initial borrowings under the Bank Credit Agreement to payment of all
outstanding obligations under the Existing Credit Agreement, other than the principal of and
interest on the $50,000,000 term loan outstanding thereunder, and to terminate all revolving loan
credit commitments thereunder. The Company shall have furnished to the Noteholders and their
special counsel an executed copy of such instruction letter, certified as true and correct by a
Senior Financial Officer on behalf of the Company (with such further
certification that such instruction letter has been delivered to the Administrative Agent under the
Bank Credit Agreement).
Section 4.8. Payment of Special Counsel Fees
. Without limiting the provisions of
Section 15.1, the Company shall have paid on or before the Closing the fees, charges and
disbursements of the Noteholders special counsel referred to in Section 4.4 to the extent
reflected in a statement of such counsel rendered to the Company at least one Business Day prior to
the Closing.
Section 4.9. Private Placement Number
. A Private Placement Number issued by Standard & Poors
CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.
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Section 4.10. Changes in Corporate Structure
. Neither the Company nor any other Note Party
shall have changed its jurisdiction of incorporation or been a party to any merger or consolidation
(other than the Merger) or succeeded to all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent financial statements referred to in
Schedule 5.5.
Section 4.11. Amendment Fee
. Each Noteholder shall have received from the Company an
amendment fee equal to 0.05% of the outstanding principal balance of the Notes held by such
Noteholder as of the date of Closing, paid to each Noteholders account specified in Schedule A to
this Agreement.
Section 4.12. Proceedings and Documents
. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to such Noteholder and its special counsel, and such
Noteholder and its special counsel shall have received all such counterpart originals or certified
or other copies of such documents as such Noteholder or such special counsel may reasonably
request.
It is hereby agreed that the effectiveness of each of (i) the Assignment and Assumption, (ii)
the Guaranty Release and (iii) the amendment and restatement of the Original Note Agreement into
this Agreement and the Original Notes into the Notes, shall be deemed to have occurred upon the
exchange of signature pages to this Agreement between the Note Parties, on the one hand, and the
Noteholders on the other hand (which exchange may be carried out by and between the respective
counsels acting for and on behalf of each such parties).
Section 5.
Representations and Warranties of the Note Parties
.
Each Note Party, as applicable, represents and warrants to each Noteholder as set forth below,
and acknowledges that each Noteholder is entering into this Agreement in reliance on the truth and
accuracy of such representations and warranties. For purposes of this Agreement, except as
otherwise specifically provided in this Agreement, all representations and warranties in this
Section 5 shall be deemed to be made as if the Merger and the transactions contemplated by
the Merger Agreement have already been consummated (and each of Snyders and Snyders
Manufacturing are Subsidiaries of the Company).
Section 5.1. Organization; Power and Authority
. Each Note Party is a corporation duly
organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those jurisdictions as to
which the failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Each Note Party, as
applicable, has the corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts and proposes to
transact, to execute and deliver this Agreement, the Notes (in the case of the Company) and the
Merger Agreement (in the case of the Company and Snyders) and to perform the provisions hereof and
thereof.
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Section 5.2. Authorization, Etc
. This Agreement, the Notes (in the case of the Company) and
the Merger Agreement (in the case of the Company and Snyders) have been duly authorized by all
necessary corporate action on the part of the applicable Note Party and each constitutes a legal,
valid and binding obligation of such Note Party enforceable against such Note Party in accordance
with its terms, except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of
creditors rights generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 5.3. Disclosure
. This Agreement and the documents, certificates or other writings
delivered to the Noteholders by or on behalf of the Note Parties in connection with the
transactions contemplated hereby and identified in Schedule 5.3, and the financial statements
listed in Schedule 5.5 (this Agreement and such documents, certificates or other writings and such
financial statements delivered to each Noteholder being referred to, collectively, as the
Disclosure Documents
), taken as a whole, do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made. Except as disclosed in the Disclosure Documents,
since December 26, 2009, in the case of the Company and its Subsidiaries (other than Snyders and
its Subsidiaries), and March 28, 2010, in the case of Snyders and its Subsidiaries, there has been
no change in the financial condition, operations, business, properties or prospects of any Note
Party or any Subsidiary except changes that individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect. There is no fact known to any Note Party that could
reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in
the Disclosure Documents.
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates
.
(a) Schedule 5.4 contains (except as noted therein) complete and correct lists (i) of the Companys
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class of its capital stock
or similar equity interests outstanding owned by the Company and each other Subsidiary, (ii) of the
Companys Affiliates, other than Subsidiaries, and (iii) of the Companys directors and senior
officers.
(b) All of the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by the Company or another Subsidiary
free and clear of any Lien.
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each
such Subsidiary has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business it transacts and
proposes to transact.
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(d) No Subsidiary is a party to, or otherwise subject to any legal, regulatory, contractual or
other restriction (other than customary limitations imposed by corporate law or similar statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such Subsidiary.
Section 5.5. Financial Statements; Material Liabilities
. The Note Parties have delivered to
each Noteholder copies of the financial statements of (i) the Company and its Subsidiaries (other
than Snyders and its Subsidiaries) and (ii) Snyders and its Subsidiaries, in each case listed on
Schedule 5.5. All of said financial statements (including in each case the related schedules and
notes) fairly present in all material respects the consolidated financial position of the companies
being reported on as of the respective dates specified in such Schedule and the consolidated
results of their operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim financial statements, to normal
year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that
are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
Section 5.6. Compliance with Laws, Other Instruments, Etc
. The execution, delivery and
performance by each Note Party, as applicable, of this Agreement, the Notes (in the case of the
Company) and the Merger Agreement (in the case of the Company and Snyders) will not
(i) contravene, result in any breach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of any Note Party or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws,
or any other agreement or instrument to which any Note Party or any Subsidiary is bound or by which
any Note Party or any Subsidiary or any of their respective properties may be bound or affected,
(ii) conflict with or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to
any Note Party or any Subsidiary or (iii) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to any Note Party or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc
. No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority is required in connection with
the execution, delivery or performance by any Note Party, as applicable, of this Agreement, the
Notes (in the case of the Company) or the Merger Agreement (in the case of the Company and
Snyders), other than any such consent, approval, authorization, registration, filing or
declaration as have been obtained prior to Closing.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders
. (a) There are no
actions, suits, investigations or proceedings pending or, to the knowledge of any Note Party,
threatened against or affecting any Note Party or any Subsidiary or any property of any Note Party
or any Subsidiary in any court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
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(b) Neither the Company nor any Subsidiary is in default under any term of any agreement or
instrument to which it is a party or by which it is bound, or any order, judgment, decree or ruling
of any court, arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation Environmental Laws or the USA Patriot
Act) of any Governmental Authority, which default or violation, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes
. The Company and its Subsidiaries have filed all tax returns that are
required to have been filed in any jurisdiction, and have paid all taxes shown to be due and
payable on such returns and all other taxes and assessments levied upon them or their properties,
assets, income or franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent, except for any taxes and assessments (i) the amount of
which is not individually or in the aggregate Material or (ii) the amount, applicability or
validity of which is currently being contested in good faith by appropriate proceedings and with
respect to which the Company or a Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP. The Note Parties know of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of federal, state or other taxes for
all fiscal periods are adequate. The federal income tax liabilities of the Company and its
Subsidiaries (other than Snyders and its Subsidiaries) have been finally determined (whether by
reason of completed audits or the statute of limitations having run) for all fiscal years up to and
including the fiscal year ended December 29, 2007. The federal income tax liabilities of Snyders
and its
Subsidiaries have been finally determined (whether by reason of completed audits or the statute of
limitations having run) for all fiscal years up to and including the fiscal year ended April 1,
2007.
Section 5.10. Title to Property; Leases
. The Company and each Subsidiary have good and
sufficient title to their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet referred to in
Section 5.5 or purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by this Agreement. All leases that individually or in the aggregate are
Material are valid and subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc
. (a) The Company and each Subsidiary own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others.
(b) To the best knowledge of each Note Party, no product of the Company or any Subsidiary
infringes in any material respect any license, permit, franchise, authorization, patent, copyright,
proprietary software, service mark, trademark, trade name or other right owned by any other Person.
(c) To the best knowledge of each Note Party, there is no Material violation by any Person of
any right of the Company or any Subsidiary with respect to any patent, copyright,
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proprietary
software, service mark, trademark, trade name or other right owned or used by the Company or any
Subsidiary.
Section 5.12. Compliance with ERISA
. (a) Neither the Company nor any ERISA Affiliate
maintains, contributes to or is obligated to maintain or contribute to, or has, at any time,
maintained, contributed to or been obligated to maintain or contribute to, any employee benefit
plan which is subject to Title IV of ERISA.
(b) The Company and each ERISA Affiliate have operated and administered each Plan in
compliance with all applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant to Title I of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in
section 3 of ERISA), and no event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate, in either case pursuant to Title I of ERISA or to such penalty or
excise tax provisions, other than such liabilities as would not be individually or in the aggregate
Material.
(c) The expected postretirement benefit obligation (determined as of the last day of the
Companys most recently ended fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by
section 4980B of the Code) of the Company and its Subsidiaries is not Material.
(d) The execution and delivery of this Agreement and the effectiveness of the Assignment and
Assumption hereunder will not involve any transaction that is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Note Parties to each Noteholder in the
first sentence of this Section 5.12(d) is made in reliance upon and subject to the accuracy of such
Noteholders representation in Section 6.2 as to the sources of the funds used to pay the purchase
price of the Original Notes purchased by such Noteholder.
Section 5.13. Private Offering
. Neither the Note Parties nor anyone acting on their behalf
offered the Original Notes or any similar securities for sale to, or solicited any offer to buy any
of the same from, or otherwise approached or negotiated in respect thereof with, any person other
than the Original Noteholders and not more than 7 other Institutional Investors, each of which was
offered the Original Notes at a private sale for investment in connection with the initial sale and
issuance of the Original Notes. Neither the Note Parties nor anyone acting on their behalf has
taken, or will take, any action that would subject the issuance of the Notes to the registration
requirements of Section 5 of the Securities Act or to the registration requirements of any
securities or blue sky laws of any applicable jurisdiction.
Section 5.14. Margin Regulations
. Snyders Manufacturing applied the proceeds of the sale of
the Original Notes to pay down short term Indebtedness, for the purchase of distribution
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and/or
manufacturing companies in Snyders and its Subsidiaries then current line of business and for
general corporate purposes. No part of the proceeds from the sale of the Original Notes has been
or will be used, directly or indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR
221), or for the purpose of buying or carrying or trading in any securities under such
circumstances as to involve any Note Party in a violation of Regulation X of said Board (12 CFR
224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 1.0% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have any present intention that margin stock
will constitute more than 1.0% of the value of such assets. As used in this Section, the terms
margin stock
and
purpose of buying or carrying
shall have the meanings assigned to them in said
Regulation U.
Section 5.15. Existing Indebtedness; Future Liens
. (a) Except as described therein, Schedule
5.15 sets forth a complete and correct list of all outstanding Indebtedness of (i) the Company and
its Subsidiaries (other than Snyders and its Subsidiaries) as of September 29, 2010 and (ii)
Snyders and its Subsidiaries as of October 10, 2010 (including, in each case, a description of the
obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty
thereof, if any), since which date there has been no Material change in the amounts, interest
rates, sinking funds, installment payments or maturities of the Indebtedness of the Company or its
Subsidiaries (including, for avoidance of doubt, Snyders and its Subsidiaries), other than the
incurrence of the loans under the Bank Credit Agreement and the use of such loan proceeds to repay
all revolving loans and other extensions of credit under the Existing Credit Agreement, each as
described in Section 4.7. Neither the Company nor any Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or condition exists with respect to any Indebtedness of
the Company or any Subsidiary that would permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Indebtedness to become due and payable before its
stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any Subsidiary has agreed or
consented to cause or permit in the future (upon the happening of a contingency or otherwise) any
of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.5.
(c) Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Indebtedness of the Company or such Subsidiary, any
agreement relating thereto or any other agreement (including, but not limited to, its charter or
other organizational document) which limits the amount of, or otherwise imposes restrictions on the
incurring of, Indebtedness of the Company, except as specifically indicated in Schedule 5.15.
Section 5.16. Foreign Assets Control Regulations, Etc
. (a) Neither the sale of the Original
Notes by Snyders Manufacturing nor its use of the proceeds thereof violate the Trading with the
Enemy Act, as amended, or any of the foreign assets control regulations of the United
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States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
(b) Neither the Company nor any Subsidiary (i) is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or
in Section 1 of the Anti-Terrorism Order or (ii) engages in any dealings or transactions with any
such Person. The Company and its Subsidiaries are in compliance, in all material respects, with
the USA Patriot Act.
(c) No part of the proceeds from the sale of the Original Notes have been used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that such
Act applies to the Company.
Section 5.17. Status under Certain Statutes
. Neither the Company nor any Subsidiary is subject
to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 2005, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.
Section 5.18. Environmental Matters
. (a) Neither the Company nor any Subsidiary has knowledge
of any claim or has received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any Subsidiary or any of their respective real properties now or
formerly owned, leased or operated by any of them or other assets, alleging any damage to the
environment or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary has knowledge of any facts which would give rise to
any claim, public or private, of violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
(c) Neither the Company nor any Subsidiary has stored any Hazardous Materials on real
properties now or formerly owned, leased or operated by any of them and has not disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that
could reasonably be expected to result in a Material Adverse Effect.
(d) All buildings on all real properties now owned, leased or operated by the Company or any
Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse Effect.
Section 5.19. No Guarantors of Material Debt Facilities
. There is no Person (other than
the Company) that is a co-obligor or otherwise guarantees Indebtedness under or in respect
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of any
Material Debt Facility as of the date hereof. Accordingly, there is no Subsidiary required to be a
Subsidiary Guarantor as of the date hereof.
Section 6. Representations of the Noteholders
.
Section 6.1. Purchase for Investment
. Each Noteholder severally represents that it purchased
the Original Notes for its own account or for one or more separate accounts maintained by such
Noteholder or for the account of one or more pension or trust funds and not with a view to the
distribution thereof,
provided
that the disposition of such Noteholders or their property shall at
all times be within such Noteholders or their control. Each Noteholder understands that the Notes
have not been registered under the Securities Act and may be resold only if registered pursuant to
the provisions of the Securities Act or if an exemption from registration is available, except
under
circumstances where neither such registration nor such an exemption is required by law, and that
the Company is not required to register the Notes.
Section 6.2. Source of Funds
. Each Noteholder severally represents that at least one of the
following statements is an accurate representation as to each source of funds (a
Source
) used by
such Noteholder to pay the purchase price of the Original Notes purchased by such Noteholder:
(a) the Source is an insurance company general account (as the term is defined in the
United States Department of Labors Prohibited Transaction Exemption (
PTE
) 95-60) in
respect of which the reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance Commissioners (the
NAIC Annual Statement
)) for the general account contract(s) held by or on behalf of any
employee benefit plan together with the amount of the reserves and liabilities for the
general account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the
same employee organization in the general account do not exceed 10% of the total reserves
and liabilities of the general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with such Noteholders state of
domicile; or
(b) the Source is a separate account that is maintained solely in connection with such
Noteholders fixed contractual obligations under which the amounts payable, or credited, to
any employee benefit plan (or its related trust) that has any interest in such separate
account (or to any participant or beneficiary of such plan (including any annuitant)) are
not affected in any manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE
91-38 and, except as disclosed by such Noteholder to Snyders Manufacturing in writing
pursuant to this clause (c), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns
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more than 10% of all assets
allocated to such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an investment fund (within the meaning of Part V
of PTE 84-14 (the
QPAM Exemption
)) managed by a qualified professional asset manager or
QPAM (within the meaning of Part V of the QPAM Exemption), no employee benefit plans
assets that are included in such investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, as of the last day of its most recent calendar quarter, the QPAM does not own a
10% or more interest in Snyders Manufacturing and no Person controlling or controlled by the QPAM
(applying the definition of control in Section V(e) of the QPAM Exemption) owns a 20% or
more interest in Snyders Manufacturing and (i) the identity of such QPAM and (ii) the names
of all employee benefit plans whose assets are included in such investment fund have been
disclosed to Snyders Manufacturing in writing pursuant to this clause (d); or
(e) the Source constitutes assets of a plan(s) (within the meaning of Section IV of
PTE 96-23 (the
INHAM Exemption
)) managed by an in-house asset manager or INHAM (within
the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled
by the INHAM (applying the definition of control in Section IV(d) of the INHAM Exemption)
owns a 5% or more interest in Snyders Manufacturing and (i) the identity of such INHAM and
(ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have
been disclosed to Snyders Manufacturing in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been identified to
Snyders Manufacturing in writing pursuant to this clause (g); or
(h) the Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As used in this Section 6.2, the terms
employee benefit plan, governmental plan,
and
separate
account
shall have the respective meanings assigned to such terms in section 3 of ERISA.
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Section 7. Information as to Company
.
Section 7.1. Financial and Business Information
. The Company shall deliver to each holder of
Notes that is an Institutional Investor:
(a)
Quarterly Statements
within 60 days (or such shorter period as is 15 days greater
than the period applicable to the filing of the Companys Quarterly Report on Form 10-Q (the
Form 10-Q
) with the SEC, if any, regardless of whether the Company is subject to the
filing requirements thereof) after the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and
(ii) consolidated statements of income, changes in shareholders equity and cash
flows of the Company and its Subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year ending with such
quarter,
setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer of the Company as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments,
provided
that delivery within the
time period specified above of copies of the Companys Form 10-Q, if any, prepared in
compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy
the requirements of this Section 7.1(a),
provided, further,
that the Company shall be deemed
to have made such delivery of such Form 10-Q if it shall have timely made such Form 10-Q
available on EDGAR and on its home page on the worldwide web (at the date of this
Agreement located at: http//www.lance.com) and shall have given each Noteholder prior notice
of such availability on EDGAR and on its home page in connection with each delivery (such
availability and notice thereof being referred to as
Electronic Delivery
);
(b)
Annual Statements
within 120 days (or such shorter period as is 15 days greater
than the period applicable to the filing of the Companys Annual Report on Form 10-K (the
Form 10-K
) with the SEC, if any, regardless of whether the Company is subject to the
filing requirements thereof) after the end of each fiscal year of the Company, duplicate
copies of
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such year, and
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(ii) consolidated statements of income, changes in shareholders equity and cash
flows of the Company and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion
thereon of KPMG LLP or other independent public accountants of recognized national standing,
which opinion shall state that such financial statements present fairly, in all material
respects, the financial position of the companies being reported upon and their results of
operations and cash flows and have been prepared in conformity with GAAP, and that the
examination of such accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such audit provides a
reasonable basis for such opinion in the circumstances,
provided
that the delivery within
the time period specified above of the Companys Form 10-K, if any, for such fiscal year
(together with the Companys annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the requirements therefor and
filed with the SEC shall be deemed to satisfy the
requirements of this Section 7.1(b),
provided, further,
that the Company shall be deemed to
have made such delivery of such Form 10-K if it shall have timely made Electronic Delivery
thereof;
(c)
SEC and Other Reports
promptly upon their becoming available, one copy of (i)
each financial statement, report, notice or proxy statement sent by the Company or any
Subsidiary to its principal lending banks as a whole (excluding information sent to such
banks in the ordinary course of administration of a bank facility, such as information
relating to pricing and borrowing availability) or to its public securities holders
generally, and (ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each prospectus and all
amendments thereto filed by the Company or any Subsidiary with the SEC and of all press
releases and other statements made available generally by the Company or any Subsidiary to
the public concerning developments that are Material;
(d)
Notice of Default or Event of Default
promptly, and in any event within five days
after a Responsible Officer becoming aware of the existence of any Default or Event of
Default or that any Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or taken any action with
respect to a claimed default of the type referred to in Section 11(f), a written notice
specifying the nature and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e)
ERISA Matters
promptly, and in any event within five days after a Responsible
Officer becoming aware of any of the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i) with respect to any Plan, any reportable event, as defined in section
4043(c) of ERISA and the regulations thereunder, for which notice thereof
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has not
been waived pursuant to such regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the threatening by the
PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multi-employer Plan
that such action has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any event, transaction or condition that could result in the incurrence of
any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on any of the rights, properties or
assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or
such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing, could
reasonably be expected to have a Material Adverse Effect;
(f)
Notices from Governmental Authority
promptly, and in any event within 30 days of
receipt thereof, copies of any notice to the Company or any Subsidiary from any federal or
state Governmental Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse Effect; and
(g)
Requested Information
with reasonable promptness, such other data and information
relating to the business, operations, affairs, financial condition, assets or properties of
the Company or any Subsidiary (including, but without limitation, actual copies of the
Companys Form 10-Q and Form 10-K, if any) or relating to the ability of the Company to
perform its obligations hereunder and under the Notes or the ability of any Subsidiary
Guarantor to perform its obligations under the Subsidiary Guaranty Agreement as from time to
time may be reasonably requested by any such holder of Notes.
Section 7.2. Officers Certificate
. Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer of the Company setting forth (which, in the case of Electronic Delivery of
any such financial statements, shall be by separate concurrent delivery of such certificate to each
holder of Notes):
(a)
Covenant Compliance
the information (including detailed calculations) required in
order to establish whether the Company was in compliance with the requirements of Sections
10.5 through Section 10.9, inclusive, during the quarterly or annual period covered by the
statements then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum
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amount, ratio or percentage, as the
case may be, permissible under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b)
Event of Default
a statement that such Senior Financial Officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her supervision, a
review of the transactions and conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by the statements then being furnished
to the date of the certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company or any Subsidiary to
comply with any Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with respect thereto.
Section 7.3. Visitation
. The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a)
No Default
if no Default or Event of Default then exists, at the expense of such
holder and upon reasonable prior notice to the Company, to visit the principal executive
office of the Company, to discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Companys officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) its independent public accountants, and (with the
consent of the Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such reasonable times and
as often as may be reasonably requested in writing; and
(b)
Default
if a Default or Event of Default then exists, at the expense of the
Company to visit and inspect any of the offices or properties of the Company or any
Subsidiary, to examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent public accountants (and
by this provision the Company authorizes said accountants to discuss the affairs, finances
and accounts of the Company and its Subsidiaries), all at such times and as often as may be
requested.
Section 8. Payment and Prepayment of the Notes
.
Section 8.1. Maturity
. As provided therein, the entire unpaid principal balance of the Notes
shall be due and payable on the stated maturity date thereof.
Section 8.2. Optional Prepayments with Make-Whole Amount
. The Company may, at its option, upon
notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in
an amount not less than 5.0% of the aggregate principal amount of the Notes then outstanding in the
case of a partial prepayment, at 100% of the principal amount so prepaid,
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and the Make-Whole Amount
determined for the prepayment date with respect to such principal amount. The Company will give
each holder of Notes written notice of each optional prepayment under this Section 8.2 not less
than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such
notice shall specify such date (which shall be a Business Day), the aggregate principal amount of
the Notes to be prepaid on such date, the principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be accompanied by a certificate
of a Senior Financial Officer of the Company as to the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver
to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of
such Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments
. In the case of each partial prepayment of the
Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be allocated
among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.4. Maturity; Surrender, Etc
.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable
on the date fixed for such prepayment (which shall be a Business Day), together with interest on
such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and
after such date, unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such
principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to
the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any
prepaid principal amount of any Note.
Section 8.5. Purchase of Notes
. The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes
except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement
and the Notes. The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment or prepayment of Notes pursuant to any provision of this Agreement and no Notes may
be issued in substitution or exchange for any such Notes.
Section 8.6. Make-Whole Amount
.
Make-Whole Amount
means, with respect to any Note, an amount equal to the excess, if any, of
the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of
such Note over the amount of such Called Principal,
provided
that the Make-Whole Amount may in no
event be less than zero. For the purposes of determining the Make-Whole Amount, the following
terms have the following meanings:
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Called Principal
means, with respect to any Note, the principal of such Note that is to be
prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
Discounted Value
means, with respect to the Called Principal of any Note, the amount
obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Settlement Date with respect to such Called Principal,
in accordance with accepted financial practice and at a discount factor (applied on the
same periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
Reinvestment Yield
means, with respect to the Called Principal of any Note, 0.50% (50 basis
points) over the yield to maturity implied by (i) the yields reported as of 10:00 a.m. (New York
City time) on the second Business Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as Page PX1 (or such other display as may replace Page PX1)
on Bloomberg Financial Markets for the most recently issued actively traded on the run U.S.
Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date, or
(ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable (including by way of interpolation), the
Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor
publication) for U.S. Treasury securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date.
In the case of each determination under clause (i) or clause (ii), as the case may be, of the
preceding paragraph, such implied yield will be determined, if necessary, by (a) converting U.S.
Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the applicable U.S. Treasury security with the maturity
closest to and greater than such Remaining Average Life and (2) the applicable U.S. Treasury
security with the maturity closest to and less than such Remaining Average Life. The Reinvestment
Yield shall be rounded to the number of decimal places as appears in the interest rate of the
applicable Note.
Remaining Average Life
means, with respect to any Called Principal, the number of years
(calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into
(ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to
the nearest one-twelfth year) that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled Payment.
Remaining Scheduled Payments
means, with respect to the Called Principal of any Note, all
payments of such Called Principal and interest thereon that would be due after the Settlement Date
with respect to such Called Principal if no payment of such Called Principal were made prior to its
scheduled due date,
provided
that if such Settlement Date is not a date on
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which interest payments
are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.
Settlement Date
means, with respect to the Called Principal of any Note, the date on which
such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7. Change in Control.
(a)
Notice of Change in Control or Control Event.
The Company will, within 10 days after any Responsible Officer has knowledge of the occurrence of
any Change in Control or Control Event, give written notice of such Change in Control or Control
Event to each holder of Notes
unless
notice in respect of such Change in Control (or the Change in
Control contemplated by such Control Event) shall have been given pursuant to subparagraph (b) of
this Section 8.7. If a Change in Control has occurred, such notice shall contain and constitute an
offer to prepay the Notes as described in subparagraph (c) of this Section 8.7 and shall be
accompanied by the certificate described in subparagraph (g) of this Section 8.7.
(b)
Condition to Company Action.
The Company will not take any action that consummates or
finalizes a Change in Control unless (i) at least 30 days prior to such action it shall have given
to each holder of Notes written notice containing and constituting an offer to prepay Notes as
described in subparagraph (c) of this Section 8.7, accompanied by the certificate described in
subparagraph (g) of this Section 8.7, and (ii) contemporaneously with such action, it prepays all
Notes required to be prepaid in accordance with this Section 8.7.
(c)
Offer to Prepay Notes.
The offer to prepay Notes contemplated by subparagraphs (a) and (b)
of this Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section
8.7, all, but not less than all, the Notes held by each holder (in this case only,
holder
in
respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean
such beneficial owner) on a date specified in such offer (the
Proposed Prepayment Date
). If such
Proposed Prepayment Date is in connection with an offer contemplated by subparagraph (a) of this
Section 8.7, such date shall be not less than 30 days and not more than 60 days after the date of
such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed
Prepayment Date shall be the first Business Day which is at least 45 days after the date of such
offer).
(d)
Acceptance; Rejection.
A holder of Notes may accept the offer to prepay made pursuant to
this Section 8.7 by causing a notice of such acceptance to be delivered to the Company at least 10
days prior to the Proposed Prepayment Date. A failure by a holder of Notes to respond to an offer
to prepay made pursuant to this Section 8.7 shall be deemed to constitute a rejection of such offer
by such holder.
(e)
Prepayment.
Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be at
100% of the principal amount of such Notes, together with interest on such Notes accrued to the
date of prepayment, but without Make-Whole Amount. The prepayment shall be
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made on the Proposed
Prepayment Date except as provided in subparagraph (f) of this Section 8.7.
(f)
Deferral Pending Change in Control.
The obligation of the Company to prepay Notes pursuant
to the offers required by subparagraph (b) and accepted in accordance with subparagraph (d) of this
Section 8.7 is subject to the occurrence of the Change in Control in respect of which such offers
and acceptances shall have been made. In the event that such Change in Control does not occur on
the Proposed Prepayment Date in respect thereof, the prepayment shall be deferred until and shall
be made on the date on which such Change in
Control occurs. The Company shall keep each holder of Notes reasonably and timely informed of (i)
any such deferral of the date of prepayment, (ii) the date on which such Change in Control and the
prepayment are expected to occur, and (iii) any determination by the Company that efforts to effect
such Change in Control have ceased or been abandoned (in which case the offers and acceptances made
pursuant to this Section 8.7 in respect of such Change in Control shall be deemed rescinded).
(g)
Officers Certificate.
Each offer to prepay the Notes pursuant to this Section 8.7 shall
be accompanied by a certificate, executed by a Senior Financial Officer of the Company, acting on
behalf of the Company, and dated the date of such offer, specifying: (i) the Proposed Prepayment
Date; (ii) that such offer is made pursuant to this Section 8.7; (iii) the principal amount of each
Note offered to be prepaid; (iv) the interest that would be due on each Note offered to be prepaid,
accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.7 have been
fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change in
Control.
(h)
Change in Control Defined.
Change in Control
means any of the following events or
circumstances:
(i) any person or group (each within the meaning of Rule 13d-5 of the
SEC under the Exchange Act as in effect on the date hereof), other than the
Principal Shareholders, shall become, or obtain rights (whether by means of
warrants, options or otherwise) to become, the beneficial owner (as defined in
Rule 13d-3 of the SEC under the Exchange Act as in effect on the date hereof),
directly or indirectly, of 30% or more of the capital stock or other equity
interests of the Company the holders of which are entitled under ordinary
circumstances (irrespective of whether at the time the holders of such stock or
other equity interests shall have or might have voting power by reason of the
happening of any contingency) to vote for the election of the directors of the
Company; or
(ii) a majority of the members of the Board of Directors of the Company
shall cease to be Continuing Members.
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(i)
Control Event Defined.
Control Event
means:
(i) the execution by the Company or any of its Subsidiaries or Affiliates of any
agreement or letter of intent with respect to any proposed transaction or event or series of
transactions or events which, individually or in the aggregate, may reasonably be expected
to result in a Change in Control;
(ii) the execution of any written agreement which, when fully performed by the parties
thereto, would result in a Change in Control; or
(iii) the making of any written offer by any person (as such term is used in
section 13(d) and section 14(d)(2) of the Exchange Act) or related persons constituting a
group (as such term is used in Rule 13d-5 under the Exchange Act) to the holders of the
capital stock of the Company, which offer, if accepted by the requisite number of holders,
would result in a Change in Control.
Section 9. Affirmative Covenants
.
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law
. Without limiting Section 10.4, the Company will, and will
cause each of its Subsidiaries to, comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation, ERISA, the USA Patriot
Act and Environmental Laws, and will obtain and maintain in effect all licenses, certificates,
permits, franchises and other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.2. Insurance
. The Company will, and will cause each of its Subsidiaries to,
maintain, with financially sound and reputable insurers, insurance with respect to their respective
properties and businesses against such casualties and contingencies, of such types, on such terms
and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves
are maintained with respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
Section 9.3. Maintenance of Properties
. The Company will, and will cause each of its
Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties
in good repair, working order and condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly conducted at all times,
provided
that
this Section shall not prevent the Company or any Subsidiary from discontinuing the operation and
the maintenance of any of its properties if such discontinuance is desirable in the conduct of its
business and the Company has concluded that such discontinuance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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Section 9.4. Payment of Taxes and Claims
. The Company will, and will cause each of its
Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of their properties, assets, income or
franchises, to the extent the same have become due and payable and before they have become
delinquent and all claims for which sums have become due and payable that have or might become a
Lien on properties or assets of the Company or any Subsidiary,
provided
that neither the Company nor any Subsidiary need pay any
such tax, assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or such Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or (ii) the nonpayment of all
such taxes, assessments, charges, levies and claims in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc
. Subject to Section 10.2, the Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to Sections 10.2 and
10.6, the Company will at all times preserve and keep in full force and effect the corporate
existence of each of its Subsidiaries (unless merged into the Company or a Wholly-Owned Subsidiary)
and all rights and franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise could not, individually or in the aggregate,
have a Material Adverse Effect.
Section 9.6. Books and Records
. The Company will, and will cause each of its Subsidiaries to,
maintain proper books of record and account in conformity with GAAP and all applicable requirements
of any Governmental Authority having legal or regulatory jurisdiction over the Company or such
Subsidiary, as the case may be.
Section 9.7. Subsidiary Guarantors.
(
a) The Company will cause each Subsidiary which is
required by the terms of any Material Debt Facility pursuant to which Indebtedness of the Company
is outstanding to become a co-obligor of, or otherwise guarantee, such Indebtedness, to (A) enter
into a Subsidiary Guaranty Agreement (or, at any time after at least one Subsidiary has executed
the Subsidiary Guaranty Agreement, a supplemental agreement in the form of Exhibit A thereto) and
(B) deliver to each of the holders of the Notes (concurrently with the incurrence of any such
obligation pursuant to a Material Debt Facility) the aforementioned Subsidiary Guaranty Agreement
and the following items:
(i) an opinion or opinions of counsel in all applicable jurisdictions to the combined
effect that (A) the Subsidiary Guaranty Agreement has been duly authorized, executed and
delivered by such Subsidiary and constitutes a legal, valid and binding obligation
enforceable against such Subsidiary Guarantor in accordance with its terms and (B) the
obligations of the Subsidiary Guarantor under the Subsidiary Guaranty Agreement would rank
at least
pari passu
in right of payment with all other outstanding unsecured and
unsubordinated Indebtedness of that Subsidiary Guarantor, other than Indebtedness
mandatorily preferred by law, all as subject to any exceptions and
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assumptions of the type set forth in the opinions referenced in Section 4.4 and as are
reasonable under the circumstances;
(ii) a certificate of the Secretary or an Assistant Secretary (or other appropriate
officer or person) of the new Subsidiary Guarantor as to due authorization, charter
documents, board resolutions and the incumbency of officers;
(iii) all reasonable fees and expenses of the holders of the Notes, including, without
limitation, the reasonable fees of no more than one special counsel representing all of the
holders of the Notes, incurred in connection with the execution and delivery of the
Subsidiary Guaranty Agreement or supplement thereto, shall be paid or payable by the
Company; and
(iv) a certificate signed by a Senior Financial Officer of the Company (A) making
representations and warranties to the effect of those contained in Sections 5.4, 5.6 and
5.7, with respect to such Subsidiary Guarantor and the Subsidiary Guaranty Agreement, and
(B) certifying that after giving effect to the Subsidiary Guaranty Agreement or supplement
thereto no Default or Event of Default shall have occurred and be continuing.
(b) At the election of the Company and by written notice to each holder of Notes, any
Subsidiary Guarantor may be discharged from all of its obligations and liabilities under the
Subsidiary Guaranty Agreement and shall be automatically released from its obligations thereunder
without the need for the execution or delivery of any other document by the holders or any other
Person,
provided
, in each case, that (i) after giving effect to such release no Default or Event of
Default shall have occurred and be continuing, (ii) no amount is then due and payable under the
Subsidiary Guaranty Agreement, (iii) such Subsidiary Guarantor is concurrently released from its
obligations under all other agreements pursuant to which such Subsidiary Guarantor is a guarantor
or obligor with respect to Indebtedness of the Company under any Material Debt Facility, (iv) if
any fee or other form of consideration is given to any holder of Indebtedness of the Company or any
Subsidiary for the purpose of such release, the holders of the Notes shall receive equivalent
consideration, and (v) each holder of Notes shall have received a certificate of a Senior Financial
Officer of the Company to the foregoing effect and setting forth the information (including
reasonable detailed computations) reasonably required to establish compliance with the foregoing
requirements.
Section 9.8. Priority of Obligations.
(a) The Company will ensure that its payment obligations
under this Agreement, the Notes, and each other Financing Agreement will at all times rank at least
pari passu
, without preference or priority, with all other of the Companys unsecured and
unsubordinated Indebtedness.
(b) The Company will ensure that the payment obligations of each Subsidiary Guarantor, if any,
under the Subsidiary Guaranty Agreement will at all times rank at least
pari
passu
, without preference or priority, with all other unsecured and unsubordinated Indebtedness of
such Subsidiary Guarantor.
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Section 10. Negative Covenants
.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates
. The Company will not, and will not permit any
Subsidiary to, enter into directly or indirectly any transaction or group of related transactions
(including without limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company or another Subsidiary),
except in the ordinary course and pursuant to the reasonable requirements of the Companys or such
Subsidiarys business and upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would be obtainable in a comparable arms-length transaction with a Person not an
Affiliate.
Section 10.2. Merger, Consolidation, Etc
. The Company will not, and will not permit any
Subsidiary to, consolidate with or merge with any other Person or convey, transfer or lease all or
substantially all of its assets in a single transaction or series of transactions to any Person
unless:
(a) in the case of any such transaction involving the Company, the successor formed by
such consolidation or the survivor of such merger or the Person that acquires by conveyance,
transfer or lease all or substantially all of the assets of the Company as an entirety, as
the case may be, shall be a solvent corporation or limited liability company organized and
existing under the laws of the United States or any State thereof (including the District of
Columbia), and, if the Company is not such successor, survivor or acquirer, (i) such
successor, survivor or acquirer shall have executed and delivered to each holder of any
Notes its assumption of the due and punctual performance and observance of each covenant and
condition of this Agreement and the Notes, (ii) such successor, survivor or acquirer shall
have caused to be delivered to each holder of any Notes an opinion of nationally recognized
independent counsel, or other independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms hereof and (iii) all of
the Subsidiary Guarantors, if any, shall have confirmed and ratified in writing their
obligations under the Subsidiary Guaranty Agreement;
(b) in the case of any such transaction involving a Subsidiary, the successor formed by
such consolidation or the survivor of such merger or the Person that acquires by conveyance,
transfer or lease all or substantially all of the assets of such Subsidiary as an entirety,
as the case may be, shall be (1) if involving the Company, the Company, (2) if not involving
the Company, a solvent corporation or limited liability company organized and existing under
the laws of the United States or any State thereof (including
the District of Columbia), and, if such Subsidiary is not such successor, survivor or
acquirer, (i) such successor, survivor or acquirer shall be a Subsidiary after giving effect
to such transaction and (ii) in any such transaction where such Subsidiary is a Subsidiary
Guarantor, (A) such successor, survivor or acquirer shall have executed and delivered to
each holder of Notes its assumption of the due and punctual performance and observance
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of each covenant and condition of the Subsidiary Guaranty Agreement of such Subsidiary
Guarantor and (B) the Company shall have caused to be delivered to each holder of Notes an
opinion of nationally recognized independent counsel, or other independent counsel
reasonably satisfactory to the Required Holders, to the effect that the agreements or
instruments effecting such assumption required pursuant to clause (ii)(A) above are
enforceable in accordance with their terms and comply with the terms hereof or (3) any other
Person so long as the transaction is treated as an Asset Disposition of all of the assets of
such Subsidiary for purposes of Section 10.6 and, based on such characterization, would be
permitted pursuant to Section 10.6; and
(c) immediately before and immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
No such conveyance, transfer or lease of substantially all of the assets of the Company or any
Subsidiary Guarantor shall have the effect of releasing the Company or such Subsidiary Guarantor,
as the case may be, or any successor corporation or limited liability company that shall
theretofore have become such in the manner prescribed in this Section 10.2, from its liability
under this Agreement, the Notes or any Financing Agreement, as applicable.
Section 10.3. Line of Business
. The Company will not, and will not permit any Subsidiary to,
engage in any business if, as a result, the general nature of the business in which the Company and
its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the
general nature of the business in which the Company and its Subsidiaries, taken as a whole, are
engaged on the date of this Agreement.
Section 10.4. Terrorism Sanctions Regulations
. The Company will not, and will not permit any
Subsidiary to, (a) become a Person described or designated in the Specially Designated Nationals
and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (b) engage in any dealings or transactions with any such Person.
Section 10.5. Liens
. The Company will not, and will not permit any Subsidiary to, directly or
indirectly create, incur, assume or permit to exist (upon the happening of a contingency or
otherwise) any Lien on or with respect to any property or asset (including, without limitation, any
document or instrument in respect of goods or accounts receivable) of the Company or any such
Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom or
assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and
payable or the payment of which is not at the time required by Section 9.4;
(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other similar Liens, in each case, incurred in the ordinary course of
business for sums not yet due and payable or the payment of which is not at the time
required by Section 9.4;
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(c) Liens (other than any Liens imposed by ERISA) incurred or deposits made in the
ordinary course of business (i) in connection with workers compensation, unemployment
insurance and other types of social security or retirement benefits, or (ii) to secure (or
obtain letters of credit that secure) the performance of tenders, statutory obligations,
surety bonds, appeal bonds, bids, leases (other than Capital Leases), performance bonds,
purchase, construction or sales contracts and other similar obligations, in each case not
incurred or made in connection with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 60
days after the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 60 days after the expiration of any such
stay;
(e) leases or subleases granted to others, easements, rights-of-way, restrictions and
other similar charges or encumbrances, in each case incidental to, and not interfering with,
the ordinary conduct of the business of the Company or any such Subsidiary
provided
that
such Liens do not, in the aggregate, materially detract from the value of such property;
(f) Liens on property or assets of the Company or any such Subsidiary securing
Indebtedness owing to a Subsidiary which is a Subsidiary Guarantor;
(g) Liens existing on the date of this Agreement and that secure Indebtedness of the
Company or any such Subsidiary described in Schedule 5.15;
(h) any Lien created to secure all or any part of the purchase price, or to secure
Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of
construction, of fixed or capital assets (or any improvement thereon) acquired or
constructed by the Company or any such Subsidiary after the date hereof (including pursuant
to a Capital Lease or a Synthetic Lease),
provided
that
(i) any such Lien shall extend solely to the item or items of such property (or
improvement thereon) so acquired or constructed and, if required by the terms of the
instrument originally creating such Lien, other property (or improvement thereon)
which is an improvement to or is acquired for specific use in connection with such
acquired or constructed property (or improvement thereon) or which is real property
being improved by such acquired or constructed property (or improvement thereon),
(ii) the principal amount of the Indebtedness secured by any such Lien shall at
no time exceed an amount equal to 100% of the fair market value (as determined in
good faith by the board of directors of the Company) of such property (or
improvement thereon) at the time of such acquisition or construction, and
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(iii) any such Lien shall be created contemporaneously with or within the period
ending 180 days after, the acquisition or construction of such property;
(i) any Lien existing on property of a Person immediately prior to it being consolidated
with or merged into the Company or any such Subsidiary or it becoming a Subsidiary, or any
Lien existing on any property acquired by the Company or any such Subsidiary at the time
such property is so acquired (whether or not the Indebtedness secured thereby shall have
been assumed),
provided
that (i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Persons becoming a Subsidiary or such
acquisition of property, and (ii) each such Lien shall extend solely to the item or items of
property so acquired and, if required by the terms of the instrument originally creating
such Lien, other property which is an improvement to or is acquired for specific use in
connection with such acquired property; and
(j) other Liens not otherwise permitted by paragraphs (a) through (i) securing
Indebtedness of the Company or any such Subsidiary,
provided
that (i) immediately before and
immediately after giving effect to the incurrence of any such Liens, no Default or Event of
Default shall have occurred and be continuing and (ii) the sum (without duplication) of (A)
the aggregate outstanding principal amount of all Indebtedness of the Company and
Subsidiaries secured by Liens under this paragraph (j)
plus
(B) the aggregate outstanding
principal amount of all Indebtedness of Subsidiaries outstanding pursuant to Section 10.8(d)
does not at any time exceed 15% of Consolidated Total Assets at such time;
provided further
that, no such Liens shall secure Indebtedness in respect of any Material Debt Facility
unless this Agreement and the Notes are concurrently secured equally and ratably with such
Indebtedness pursuant to documentation in form and substance reasonably satisfactory to the
Required Holders.
Section 10.6. Sale of Assets, Etc
. Subject to Section 10.2 (other than Section 10.2(b)(3)),
the Company will not, and will not permit any Subsidiary to, make any Asset Disposition unless:
(a) in the good faith opinion of the Company or such Subsidiary making the Asset
Disposition, the Asset Disposition is in exchange for consideration having a fair market
value at least equal to that of the property exchanged;
(b) immediately after giving effect to the Asset Disposition, no Default or Event of
Default would exist; and
(c) immediately after giving effect to the Asset Disposition, (i) the Disposition Value
of all property that was subject of any Asset Disposition occurring in the period beginning
on the date of Closing and ending on December 31, 2015, would not exceed 20% of Consolidated
Total Assets, determined as of the end of the fiscal quarter most recently ended prior to
such Asset Disposition and (ii) the Disposition Value of all property that was subject of
any Asset Disposition occurring on or after January 1, 2016 would not exceed 10% of
Consolidated Total Assets, determined as of the end of the fiscal quarter most recently
ended prior to such Asset Disposition.
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To the extent that the Net Proceeds Amount consisting of cash for any Transfer to a Person other
than an Affiliate of the Company or Subsidiary is applied to an Indebtedness Prepayment Application
or applied to a Property Reinvestment Application within one year after such Transfer, then such
Transfer (or, if less than all such Net Proceeds Amount is applied as contemplated hereinabove, the
pro rata percentage thereof which corresponds to the Net Proceeds Amount so applied), only for the
purpose of determining compliance with subsection (c) of this Section 10.6 as of any date, shall be
deemed not to be an Asset Disposition.
Section 10.7. Certain Financial Ratios
.
(a)
Total Indebtedness to EBITDA Ratio.
The Company
shall not permit the Total Indebtedness to EBITDA Ratio for any Computation Period to be greater
than 3.50 to 1.00 or, with respect to no more than four consecutive Computation Periods following a
Material Acquisition, 3.75 to 1.00.
(b)
Interest Coverage Ratio
. The Company shall not permit, as of the last day of any
Computation Period, the Interest Coverage Ratio to be less than 2.25 to 1.
Section 10.8. Limitation on Subsidiary Indebtedness
. The Company shall not at any time permit
any Subsidiary to create, assume, incur, guarantee or otherwise be or become liable in respect of
any Indebtedness, except:
(a) Indebtedness owing to the Company or any Subsidiary;
(b) Acquired Subsidiary Indebtedness;
(c) Indebtedness of any Subsidiary Guarantor; and
(d) other Indebtedness,
provided
that, the sum (without duplication) of (i) the
aggregate unpaid principal amount of Indebtedness of all Subsidiaries (other than
Indebtedness permitted by the foregoing clauses (a), (b) and (c), inclusive)
plus
(ii) the
aggregate principal amount of Indebtedness secured by all Liens permitted by clause (j) of
Section 10.5, does not at any time exceed 15% of Consolidated Total Assets at such time.
For purposes of this Section 10.8: (i) a Subsidiary shall be deemed to have incurred Indebtedness
previously owed to the Company or another Subsidiary at the time the obligee ceases for any reason
to be the Company or another Subsidiary; and (ii) any Subsidiary Guarantor shall be deemed to have
incurred its outstanding Indebtedness (x) at the time the Subsidiary Guaranty Agreement in respect
of such Subsidiary Guarantor is released as provided for in Section 9.7 or (y) in case such
Subsidiary Guaranty Agreement ceases to be in full force and effect as an enforceable instrument or
such Subsidiary Guarantor (or any Person at its authorized direction or on its behalf) asserts in
writing that such Subsidiary Guaranty Agreement is unenforceable in any material respect, at such
time.
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Section 10.9. Restricted Payments
. The Company will not declare or make any dividend payment
or other distribution of assets, properties, cash, rights, obligations or securities on account of
any shares of any class of its capital stock nor will it purchase, redeem or otherwise acquire any
shares of the Companys capital stock or any warrants, rights or options to acquire such shares,
other than:
(a) dividend payments or other distributions payable solely in its common stock;
(b) purchases, redemptions or other acquisitions of shares of its common stock or
warrants or options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock; and
(c) so long as (i) no Default or Event of Default exists or would result therefrom and
(ii) the Companys consolidated stockholders equity, after giving effect thereto, is not
less than $200,000,000, the Company may (x) declare and pay cash dividends to its
stockholders; and (y) purchase, redeem or otherwise acquire shares of its common stock or
warrants or options to acquire such shares.
Section 11. Events of Default
.
An
Event of Default
shall exist if any of the following conditions or events shall occur and
be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any term contained in
Section 7.1(d) or Section 10; or
(d) the Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in Sections 11(a), (b) and (c)) or in any other
Financing Agreement or any Subsidiary Guarantor defaults in the performance of or compliance
with any term contained in the Subsidiary Guaranty Agreement, and, in each case, such
default is not remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving written notice of
such default from any holder of a Note (any such written notice to be identified as a
notice of default and to refer specifically to this Section 11(d)); or
(e) any representation or warranty made in writing by or on behalf of any Note Party or
any Subsidiary Guarantor or by any officer of any Note Party or any Subsidiary Guarantor in
this Agreement or in any other Financing Agreement or in any
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writing furnished in connection
with the transactions contemplated hereby or thereby proves to have been false or incorrect
in any material respect on the date as of which made; or
(f) (i) the Company or any Subsidiary is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or make-whole amount or interest
on any Material Financial Obligation beyond any period of grace provided with respect
thereto, or (ii) the Company or any Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Material Financial Obligation or of any
mortgage, indenture or other agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such Material Financial Obligation has become,
or has been declared (or one or more Persons are entitled to declare such Material Financial
Obligation to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of
any event or condition (other than the passage of time or the right of the holder of any
Material Financial Obligation to convert such Material Financial Obligation into equity
interests), (x) the Company or any Subsidiary has become obligated to purchase or repay any
Material Financial Obligation before its regular maturity or before its regularly scheduled
dates of payment, or (y) one or more Persons have the right to require the Company or any
Subsidiary so to purchase or repay such Material Financial Obligation; or
(g) the Company or any Subsidiary (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the
foregoing; or
(h) a court or Governmental Authority of competent jurisdiction enters an order
appointing, without consent by the Company or any Subsidiary a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or approving a petition for relief
or reorganization or any other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company or any Subsidiary, or any such
petition shall be filed against the Company or any Subsidiary and such petition shall not be
dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in excess of
$30,000,000 are rendered against the Company or any Subsidiary and which
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judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay; or
(j) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the
Code for any plan year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is reasonably expected to be filed with the
PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the
aggregate amount of unfunded benefit liabilities (within the meaning of section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA,
shall exceed $10,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty
or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare benefit plan that provides
post-employment welfare benefits in a manner that would increase the liability of the
Company or any Subsidiary thereunder; and any such event or events described in clauses (i)
through (vi) above, either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect; or
(k) any Financing Agreement shall cease to be in full force and effect for any reason
whatsoever, including, without limitation, a determination by any Governmental Authority or
court that such Financing Agreement is invalid, void or unenforceable in any material
respect or any Note Party or any Subsidiary Guarantor shall contest or deny the validity or
enforceability of any of its obligations under such Financing Agreement.
As used in Section 11(j), the terms
employee benefit plan
and
employee welfare benefit plan
shall have the respective meanings assigned to such terms in section 3 of ERISA.
Section 12. Remedies on Default, Etc
.
Section 12.1. Acceleration
. (a) If an Event of Default with respect to the Company described
in Section 11(g) or (h) (other than an Event of Default described in clause (i) of Section 11(g) or
described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause
(i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any holder or holders of more
than 50% in principal amount of the Notes at the time outstanding may at any time at its or their
option, by notice or notices to the Company, declare all the Notes then outstanding to be
immediately due and payable.
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(c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing,
any holder or holders of Notes at the time outstanding affected by such Event of Default may at any
time, at its or their option, by notice or notices to the Company, declare all the Notes held by it
or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes,
plus
(x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued
thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be immediately due and payable,
in each and every case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free from repayment by the Company (except as
herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the
Company in the event that the Notes are prepaid or are accelerated as a result of an Event of
Default, is intended to provide compensation for the deprivation of such right under such
circumstances.
Section 12.2. Other Remedies
. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately due
and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement contained herein or
in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in
aid of the exercise of any power granted hereby or thereby or by law or otherwise.
Section 12.3. Rescission
. At any time after any Notes have been declared due and payable
pursuant to Section 12.1(b) or (c), the holders of
not less than 51% in principal amount of the Notes then outstanding, by written notice to the
Company, may rescind and annul any such declaration and its consequences if (a) the Company has
paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any
Notes that are due and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the
Company nor any other Person shall have paid any amounts which have become due solely by reason of
such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that
have become due solely by reason of such declaration, have been cured or have been waived pursuant
to Section 17, and (d) no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend
to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc
. No course of dealing and no
delay on the part of any holder of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such holders rights, powers or remedies. No right,
power or remedy conferred by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or therein
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or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 15, the Company will pay to the holder of each Note on
demand such further amount as shall be sufficient to cover all costs and expenses of such holder
incurred in any enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys fees, expenses and disbursements.
Section 13.
Registration; Exchange; Substitution of Notes
.
Section 13.1. Registration of Notes
. The Company shall keep at its principal executive office
a register for the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered shall be deemed and
treated as the owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy
of the names and addresses of all registered holders of Notes.
Section 13.2. Transfer and Exchange of Notes
. Upon surrender of any Note to the Company at
the address and to the attention of the designated officer (all as specified in Section 18(iii)),
for registration of transfer or exchange (and in the case of a surrender for registration of
transfer accompanied by a written instrument of transfer duly executed by the registered holder of
such Note or such holders attorney duly authorized in writing and accompanied by the relevant
name, address and other information for notices of each transferee of such Note or part thereof),
within ten Business Days thereafter, the Company shall execute and deliver, at the Companys
expense (except as provided below), one or more new Notes (as requested by the holder thereof) in
exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Exhibit 1. Each such new Note shall be dated and bear
interest from the date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon. The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any
such transfer of Notes. Notes shall not be transferred in denominations of less than $100,000,
provided that if necessary to enable the registration of transfer by a holder of its entire holding
of Notes, one Note may be in a denomination of less than $100,000. Any transferee, by its
acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have
made the representation set forth in Section 6.2 (except that for purposes of such representation,
all references in Section 6.2 to Snyders Manufacturing shall be deemed references to the
Company).
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Section 13.3. Replacement of Notes
. Upon receipt by the Company at the address and to the
attention of the designated officer
(all as specified in Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of
and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such ownership and such loss,
theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for, an original Noteholder
or another holder of a Note with a minimum net worth of at least $25,000,000 or a Qualified
Institutional Buyer, such Persons own unsecured agreement of indemnity shall be deemed to
be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
within ten Business Days thereafter, the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.
Section 14.
Payments on Notes
.
Section 14.1. Place of Payment
. Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New
York at the principal office of JPMorgan Chase Bank, N.A. in such jurisdiction. The Company may at
any time, by notice to each holder of a Note, change the place of payment of the Notes so long as
such place of payment shall be either the principal office of the Company in such jurisdiction or
the principal office of a bank or trust company in such jurisdiction.
Section 14.2. Home Office Payment
. So long as any Noteholder or its nominee shall be the
holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount,
if any, and interest by the method and at the address specified for such purpose below such
Noteholders name in Schedule A, or by such other method or at such other address as such
Noteholder shall have from time to time specified to the Company in writing for such purpose,
without the presentation or surrender of such Note or the making of any notation thereon, except
that upon written request of the Company made concurrently with or reasonably promptly after
payment or prepayment in full of any Note, such Noteholder shall surrender such Note for
cancellation, reasonably promptly after any such request, to the Company at its principal executive
office or at the place of payment most recently designated by the Company pursuant to Section 14.1.
Prior to any sale or other disposition of any Note held by a Noteholder or its nominee, such
Noteholder will, at its election, either endorse thereon the amount of principal paid thereon and
the last date to which interest has been paid thereon or surrender such Note to the Company in
exchange for a new Note or Notes pursuant to Section 13.2. The Company will afford the benefits of
this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any
Note
issued to a Noteholder under this Agreement and that has
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made the same agreement relating to such
Note as the Noteholders have made in this Section 14.2.
Section 15.
Expenses, Etc
.
Section 15.1. Transaction Expenses
.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including reasonable attorneys fees of a
special counsel and, if reasonably required by the Required Holders, local or other counsel)
incurred by the Noteholders and each other holder of a Note in connection with such transactions
and in connection with any amendments, waivers or consents under or in respect of this Agreement,
the Notes or any other Financing Agreement (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses incurred in
enforcing or defending (or determining whether or how to enforce or defend) any rights under this
Agreement, the Notes, or any other Financing Agreement, or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this Agreement, the Notes
or any other Financing Agreement, or by reason of being a holder of any Note, (b) the costs and
expenses, including financial advisors fees, incurred in connection with the insolvency or
bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby, by the Notes or by any other Financing Agreement and (c) the
costs and expenses incurred in connection with the initial filing of this Agreement and all related
documents and financial information with the SVO
provided,
that such costs and expenses under this
clause (c) shall not exceed $5,000. The Company will pay, and will save each Noteholder and each
other holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any,
of brokers and finders (other than those, if any, retained by a Noteholder or other holder in
connection with its purchase of the Notes).
Section 15.2. Survival
.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this
Agreement, the Notes or any other Financing Agreement, and the termination of this Agreement.
Section 16.
Survival of Representations and Warranties; Entire Agreement
.
All representations and warranties contained herein shall survive the execution and delivery
of this Agreement and the Notes, the purchase or transfer by any Noteholder of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent
holder of a Note, regardless of any investigation made at any time by or on behalf of such
Noteholder or any other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of any Note Party pursuant to this Agreement shall be deemed
representations and warranties of such Note Party under this Agreement. Subject to the preceding
sentence, this Agreement, the Notes and the other Financing Agreements embody the entire agreement
and understanding between each Noteholder
and the Company and Subsidiary Guarantors, if any, and supersede all prior agreements and
understandings relating to the subject matter hereof.
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Section 17.
Amendment and Waiver
.
Section 17.1. Requirements
.
This Agreement and the Notes may be amended, and the observance
of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and
only with) the written consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Sections 1, 2, 3, 4, 5, 6 or 21 hereof, or any
defined term (as it is used therein), will be effective as to any Noteholder unless consented to by
such Noteholder in writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to the provisions of
Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the time of payment or method of computation
of interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage of the principal
amount of the Notes the holders of which are required to consent to any such amendment or waiver,
or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes
.
(a)
Solicitation.
The Company will provide each holder of the Notes (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or
of the Notes. The Company will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is executed and delivered by, or receives
the consent or approval of, the requisite holders of Notes.
(b)
Payment.
No Note Party will directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any
security or provide other credit support, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof or of the Notes unless such remuneration is concurrently paid, or
security is concurrently granted or other credit support concurrently provided, on the same terms,
ratably to each holder of Notes then outstanding even if such holder did not consent to such waiver
or amendment.
Section 17.3. Binding Effect, Etc
.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant,
agreement, Default or Event of Default not expressly amended or waived or impair any right
consequent thereon. No course of dealing between the Company and the holder of any Note nor any
delay in exercising any rights hereunder or under any Note shall operate as a waiver of any rights
of any holder of such Note. As used herein, the term this Agreement and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
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Section 17.4. Notes Held by Company, Etc
.
Solely for the purpose of determining whether the
holders of the requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this Agreement or the
Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon
the direction of the holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall
be deemed not to be outstanding.
Section 18.
Notices
.
All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered or certified mail with return
receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to any Noteholder or its nominee, to such Noteholder or nominee at the address
specified for such communications in Schedule A, or at such other address as such Noteholder
or nominee shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the beginning
hereof to the attention of Chief Financial Officer, or at such other address as the Company
shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
Section 19.
Reproduction of Documents
.
This Agreement and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b) documents received by any
Noteholder at the Closing (except the Notes themselves), and (c) financial statements, certificates
and other information previously or hereafter furnished to any Noteholder, may be reproduced by
such Noteholder by any photographic, photostatic, electronic, digital, or other similar process and
such Noteholder may destroy any original document so reproduced. The Company agrees and stipulates
that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and whether or not such
reproduction was made by such Noteholder in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.
This Section 19 shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from introducing
evidence to demonstrate the inaccuracy of any such reproduction.
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Section 20.
Confidential Information
.
For the purposes of this Section 20,
Confidential Information
means information delivered to
any Noteholder by or on behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified when received by such Noteholder as
being confidential information of the Company or such Subsidiary, provided that such term does not
include information that (a) was publicly known or otherwise known to such Noteholder prior to the
time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such
Noteholder or any person acting on such Noteholders behalf, (c) otherwise becomes known to such
Noteholder other than through disclosure by the Company or any Subsidiary or (d) constitutes
financial statements delivered to such Noteholder under Section 7.1 that are otherwise publicly
available. Each Noteholder will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Noteholder in good faith to protect confidential
information of third parties delivered to such Noteholder, provided that such Noteholder may
deliver or disclose Confidential Information to (i) its directors, officers, employees, agents,
attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by its Notes), (ii) its financial advisors and other
professional advisors who agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which it sells or offers to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (v) any Person from
which it offers to purchase any security of the Company (if such Person has agreed in writing prior
to its receipt of such Confidential Information to be bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having jurisdiction over such Noteholder, (vii) the
NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating
agency that requires access to information about such Noteholders investment portfolio, or (viii)
any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to such Noteholder, (x) in response
to any subpoena or other legal process, (y) in connection with any litigation to which such
Noteholder is a party or (z) if an Event of Default has occurred and is continuing, to the extent
such Noteholder may reasonably determine such delivery and disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and remedies under such
Noteholders Notes, this Agreement and the Subsidiary Guaranty Agreement. Each holder of a Note,
by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 20 as
though it were a party to this Agreement. On reasonable request by the Company in connection
with the delivery to any holder of a Note of information required to be delivered to such holder
under this Agreement or requested by such holder (other than a holder that is a party to this
Agreement or its nominee), such holder will enter into an agreement with the Company embodying the
provisions of this Section 20.
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Section 21.
Assignment and Assumption; Indemnification; Consent
.
Section 21.1. Assignment of Obligations.
Each of Snyders Manufacturing and Snyders hereby
irrevocably and unconditionally assigns on and as of the date of Closing all of their right, title
and interest in and to the Original Note Agreement and their obligations thereunder and under the
Original Notes (in the case of Snyders Manufacturing) to the Company.
Section 21.2. Assumption of Obligations
.
The Company for good and valuable consideration, the
receipt of which is hereby acknowledged, for the benefit of each of the holders from time to time
of the Notes, hereby irrevocably and unconditionally assumes and agrees to be bound by, and comply
with from and after the date of Closing, each of the covenants, terms and provisions of the
Original Note Agreement, as amended and restated by this Agreement and the Original Notes, as
amended and restated by the Notes, including without limitation the payment in full of the
principal of, interest on, and Make-Whole Amount, if any, from time to time due thereon and
outstanding thereunder as fully and as completely as if the Company were the original issuer
thereunder and a party thereto (including the assumption of all accrued and unpaid interest on the
Notes from and after June 12, 2010, the date of the last interest payment made by Snyders
Manufacturing on the Original Notes).
Section 21.3. Indemnification
.
Each of the Note Parties shall pay, indemnify and save harmless
each holder of Notes from and against any and all liabilities, costs and expenses, claims, demands
or judgments arising from or out of the assumption by the Company of the obligations of Snyders
Manufacturing under the Original Notes and of Snyders Manufacturing and Snyders under the
Original Note Agreement, in each case, as amended and restated by the Notes and this Agreement,
respectively, including, without limitation, any income tax owed by the holders of Notes as a
result of the issuance of new Notes by the Company in exchange for the Original Notes constituting
a taxable event for income tax purposes. The indemnification contained in this Section 21.3 shall
survive the payment or transfer of any Note and the termination of this Agreement.
Section 21.4. Consent
.
Upon satisfaction of the conditions set forth in Sections 3 and 4
hereof, the holders of Notes, as evidenced by their execution and delivery of this Agreement,
hereby consent to the Assignment and Assumption as evidenced by this Agreement.
Section 22.
Release of Guarantee Agreement
Upon satisfaction of the conditions set forth in Sections 3 and 4 hereof, the holders of Notes
and the other parties signatory hereto, each as evidenced by their execution and delivery of this
Agreement, hereby release Snyders from its obligations under the Original Note Agreement and the
Guarantee Agreement.
Section 23.
Miscellaneous
.
Section 23.1. Successors and Assigns
. All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their
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Amended and Restated Note Purchase Agreement
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respective successors and assigns (including, without limitation, any subsequent holder of a Note)
whether so expressed or not.
Section 23.2. Payments Due on Non-Business Days
.
Anything in this Agreement or the Notes to
the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice
of any optional prepayment specify a Business Day as the date fixed for such prepayment), any
payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other
than a Business Day shall be made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on such next succeeding Business
Day;
provided
that if the maturity date of any Note is a date other than a Business Day, the
payment otherwise due on such maturity date shall be made on the next succeeding Business Day and
shall include the additional days elapsed in the computation of interest payable on such next
succeeding Business Day.
Section 23.3. Accounting Terms
.
All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to them in accordance with GAAP.
Except as otherwise specifically provided herein, (i) all computations made pursuant to this
Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be
prepared in accordance with GAAP. For purposes of determining compliance with the financial
covenants contained in this Agreement or any other Financing Agreement, any election by the Company
or any Subsidiary to measure an item of Indebtedness using fair value (as permitted by Statement of
Financial Accounting Standards No. 159 or any similar accounting standard) shall be disregarded and
such determination shall be made as if such election had not been made.
Section 23.4. Severability
.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other jurisdiction.
Section 23.5. Construction, etc
.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant contained herein, so
that compliance with any one covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be
deemed to be a part hereof.
Section 23.6. Counterparts
.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto. Delivery of an executed counterpart of this
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Amended and Restated Note Purchase Agreement
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Agreement by
facsimile or email shall be as effective as delivery of a manually executed counterpart of this
Agreement.
Section 23.7. Governing Law
.
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit the application of
the laws of a jurisdiction other than such State.
Section 23.8. Jurisdiction and Process; Waiver of Jury Trial
.
(a) The Company irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or
relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the
Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the jurisdiction of any such court, any objection that it may
now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in
any such court and any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) The Company consents to process being served by or on behalf of any holder of Notes in any
suit, action or proceeding of the nature referred to in Section 23.8(a) by mailing a copy thereof
by registered or certified mail (or any substantially similar form of mail), postage prepaid,
return receipt requested, to it at its address specified in Section 18 or at such other address of
which such holder shall then have been notified pursuant to said Section. The Company agrees that
such service upon receipt (i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt
furnished by the United States Postal Service or any reputable commercial delivery service.
(c) Nothing in this Section 23.8 shall affect the right of any holder of a Note to serve
process in any manner permitted by law, or limit any right that the holders of any of the Notes may
have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to
this Agreement, the Notes or any other document executed in connection herewith or therewith.
* * * * *
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Amended and Restated Note Purchase Agreement
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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart
of this Agreement and return it to the Note Parties, whereupon this Agreement shall become a
binding agreement between you and the Note Parties.
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Very truly yours,
Lance, Inc.
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By:
|
/s/ Rick D. Puckett
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Name:
|
Rick D. Puckett
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Title:
|
Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
|
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Snyders of Hanover Manufacturing, Inc.
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By:
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/s/ Charles E. Good
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Name:
|
Charles E. Good
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Title:
|
Chief Financial Officer
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Snyders of Hanover, Inc.
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By:
|
/s/ Chares E. Good
|
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Name:
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Charles E. Good
|
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Title:
|
Chief Financial Officer
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Amended and Restated Note Purchase Agreement
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This Agreement is hereby accepted
and agreed to as of the date thereof.
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Teachers Insurance and Annuity
Association of America
|
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By
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/s/ Laura M. Parrott
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Name:
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Laura M. Parrott
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Title:
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Director
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Amended and Restated Note Purchase Agreement
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This Agreement is hereby accepted and
agreed to as of the date thereof.
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Hartford Fire Insurance Company
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By:
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Hartford Investment Management Company
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Its Agent and Attorney-in-Fact
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By
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/s/ Ronald Mendel
|
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Name:
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Ronald Mendel
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Title:
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Managing Director
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Amended and Restated Note Purchase Agreement
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This Agreement is hereby accepted and
agreed to as of the date thereof.
|
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Aviva Life and Annuity Company
|
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By:
|
Aviva Investors North America, Inc.,
|
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Its authorized attorney-in-fact
|
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By
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/s/ Roger D. Fors
|
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Name:
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Roger D. Fors
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Title:
|
VP-Private Fixed Income
|
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Amended and Restated Note Purchase Agreement
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This Agreement is hereby accepted
and agreed to as of the date thereof.
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Mutual of Omaha Insurance Company
United of Omaha Life Insurance Company
|
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By
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/s/ Curtis R. Caldwell
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Name:
|
Curtis R. Caldwell
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Title:
|
Senior Vice President
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Amended and Restated Note Purchase Agreement
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This Agreement is hereby accepted
and agreed to as of the date thereof.
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Modern Woodmen of America
|
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By
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/s/ Douglas A. Pannier
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Name:
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Douglas A. Pannier
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Title:
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Portfolio Mgr. Private Placements
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-50-
Information Relating to Noteholders
|
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Name and Address of Noteholder
|
|
Principal Amount of
|
|
|
Notes
|
|
|
|
|
|
Teachers Insurance and Annuity
|
|
$
|
55,000,000
|
|
Association of America
|
|
|
|
|
8500 Andrew Carnegie Boulevard
|
|
|
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|
Charlotte, North Carolina 28262
|
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Payments
All payments on or in respect of the Notes shall be made in immediately available funds on the due
date by electronic funds transfer, through the Automated Clearing House System, to:
JPMorgan Chase Bank, N.A.
ABA #
Account Number
Account Name: Teachers Insurance and Annuity Association of America
For Further Credit to the Account Number:
Reference: PPN#83354* AA6/SnydersLance, Inc.,
Maturity Date: 6/12/2017/Interest Rate: 5.72%/P&I Breakdown
Notices
All notices with respect to payments and prepayments of the Notes shall be sent to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017
Attention: Securities Accounting Division
Telephone: (212) 916-4109
Facsimile: (212) 916-6955
With a copy to:
JPMorgan Chase Bank, N.A.
P. O. Box 35308
Newark, New Jersey 07101
Schedule
A
(to Amended and Restated Note Purchase Agreement)
And to:
Teachers Insurance and Annuity Association of America
8500 Andrew Carnegie Boulevard
Charlotte, North Carolina 28262
Attention: Global Private Markets
Telephone: (704) 988-4238 (Brian Roelke)
(704) 988-1000 (General Number)
Facsimile: (704) 988-4916
Email: broelke@tiaa-cref.org
Contemporaneous written confirmation of any electronic funds transfer shall be sent to the above
addresses setting forth: (1) the full name, private placement number, interest rate and maturity
date of the Notes; (2) the allocation of the payment between principal, interest, Make-Whole
Amount, other premium or any special payment; and (3) the name and address of the bank from which
such electronic funds transfer was sent.
All other notices and communications shall be delivered or mailed to:
Teachers Insurance and Annuity Association of America
8500 Andrew Carnegie Boulevard
Charlotte, North Carolina 28262
Attention: Global Private Markets
Telephone: (704) 988-4238 (Brian Roelke)
(704) 988-1000 (General Number)
Facsimile: (704) 988-4916
Email: broelke@tiaa-cref.org
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number:
Deliver Notes to:
JPMorgan Chase Bank, N.A.
4 Chase Metrotech Center, 3rd Floor
Brooklyn, New York 11245-0001
Attention: Physical Receive Department
For TIAA A/C
A-2
|
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Name and Address of Noteholder
|
|
Principal Amount of
|
|
|
Notes
|
Hartford Fire Insurance Company
|
|
|
|
|
c/o Hartford Investment Management Company
|
|
$
|
5,000,000
|
|
c/o Investment Department Private Placements
|
|
$
|
5,000,000
|
|
Regular Mailing Address:
|
|
|
|
|
P. O. Box 1744
|
|
$
|
5,000,000
|
|
Hartford, Connecticut 06144-1744
|
|
|
|
|
Overnight Mailing Address:
|
|
$
|
5,000,000
|
|
55 Farmington Avenue
|
|
|
|
|
Hartford, Connecticut 06105
|
|
|
|
|
Telefacsimile: (860) 297-8884
|
|
|
|
|
Payments
All payments by wire transfer of immediately available funds to:
JP Morgan Chase
4 Chase Metrotech Center, 3rd Floor
Brooklyn, New York 11245-0001
ABA No.:
Chase NYC/Cust
A/C #
Attn: Bond Interest/Principal SnydersLance, Inc.
5.72% Senior Notes due June 12, 2017
PPN# 83354* AA6 Prin $________ Int $________
with sufficient information to identify the source and application of such funds.
Notices
All notices and communications to be addressed as first provided above, except notices with respect
to payments, and written confirmation of each such wire transfer to be addressed to:
Hartford Investment Management Company
c/o Portfolio Support
Regular Mailing Address:
P.O. Box 1744
Hartford, Connecticut 06144-1744
Overnight Mailing Address:
55 Farmington Avenue
Hartford, Connecticut 06105
Telefacsimile: (860) 297-8875/8876
Name of Nominee in which Notes are to be issued: None
A-3
Taxpayer I.D. Number:
Notes should be delivered to:
JPMorgan Chase
4 Chase Metrotech Center, 3rd Floor
Brooklyn, New York 11245-0001
Attention: John Bouquet
Phy/Rec 11
th
Floor
Telephone: (212) 623-2840
Custody Account Number:
must appear on outside of envelope
A-4
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|
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Principal Amount of
|
Name and Address of Noteholder
|
|
Notes
|
|
|
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Aviva Life and Annuity Company
|
|
$5,000,000
|
c/o Aviva Investors North America, Inc.
|
|
|
215 10th Street, Suite 1000
|
|
|
Des Moines, Iowa 50309
|
|
|
Attention: Private Fixed Income Dept.
|
|
|
Preferred Remittance
:
|
|
|
privateplacements@avivainvestors.com
|
|
|
Payments
All payments on or in respect of the Notes to be by bank wire transfer of federal or other
immediately available funds to:
The Bank of New York
New York, New York
ABA #
Credit A/C #
A/C Name: Institutional Custody Insurance Division
Custody Account Name: ALA Custody
Custody Account Number:
Reference: Name of Company, description of security, Private Placement Number, due date and
application (as among principal, Make-Whole Amount and interest) of the payment being made.
All notices, including financials, compliance and requests, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: HARE & CO.
Taxpayer I.D. Number for Hare & Co.:
Taxpayer I.D. Number for Aviva Life and Annuity Company:
The Notes should be forwarded to:
The Bank of New York
One Wall Street, 3rd Floor, Window A
New York, New York 10286
FAO: ALA Custody, A/C #
A-5
|
|
|
|
|
Principal Amount of
|
Name and Address of Noteholder
|
|
Notes
|
|
|
|
Aviva Life and Annuity Company
|
|
$5,000,000
|
c/o Aviva Investors North America, Inc.
|
|
|
215 10th Street, Suite 1000
|
|
|
Des Moines, Iowa 50309
|
|
|
Attention: Private Fixed Income Dept.
|
|
|
Preferred Remittance
:
|
|
|
privateplacements@avivainvestors.com
|
|
|
Payments
All payments on or in respect of the Notes to be by bank wire transfer of federal or other
immediately available funds to:
The Bank of New York
New York, New York
ABA #
Credit A/C #
A/C Name: Institutional Custody Insurance Division
Custody Account Name: Aviva Life and Annuity Co-Annuity
Custody Account Number:
Reference: Name of Company, description of security, Private Placement Number, due date and
application (as among principal, Make-Whole Amount and interest) of the payment being made.
All notices, including financials, compliance and requests, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: HARE & CO.
Taxpayer I.D. Number for Hare & Co.:
Taxpayer I.D. Number for Aviva Life and Annuity Company:
Deliver Notes to:
The Bank of New York
One Wall Street, 3
rd
Floor, Window A
New York, NY 10286
FAO: Aviva Life and Annuity Co-Annuity, A/C #
A-6
|
|
|
|
|
|
|
Principal Amount of
|
Name and Address of Noteholder
|
|
Notes
|
|
|
|
|
|
Mutual of Omaha Insurance Company
|
|
$
|
4,000,000
|
|
Mutual of Omaha Plaza
|
|
|
|
|
Omaha, Nebraska 68175-1011
|
|
|
|
|
Attention: 4-Investment Accounting
|
|
|
|
|
Payments
All principal and interest payments on or in respect of the Notes shall be made by wire transfer of
immediately available funds to:
JPMorgan Chase Bank
ABA #
Private Income Processing
for credit to: Mutual of Omaha Insurance Company
Account Number
a/c
PPN: 83354* AA6
Interest Amount: ________________
Principal Amount: ________________
Notices
All notices of payments of principal and interest, on or in respect of the Notes and written
confirmation of each such payment, corporate actions and reorganization notifications to:
JPMorgan Chase Bank
14201 Dallas Parkway, 13th Floor
Dallas, Texas 75254-2917
Attention: Income Processing G. Ruiz
a/c:
All other notices and communications (
i.e.
, quarterly/annual reports, tax filings, modifications,
waivers regarding the indenture) to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number:
A-7
Notes should be forwarded to:
JPMorgan Chase Bank
4 Chase Metrotech Center, 3rd Floor
Brooklyn, New York 11245-0001
Attention: Physical Receive Department
Ref: Acct. #
A-8
|
|
|
|
|
|
|
Principal Amount of
|
Name and Address of Noteholder
|
|
Notes
|
|
|
|
|
|
United of Omaha Life Insurance Company
|
|
$
|
6,000,000
|
|
Mutual of Omaha Plaza
|
|
|
|
|
Omaha, Nebraska 68175-1011
|
|
|
|
|
Attention: 4-Investment Accounting
|
|
|
|
|
Payments
All principal and interest payments on or in respect of the Notes shall be made by wire transfer of
immediately available funds to:
JPMorgan Chase Bank
ABA #
Private Income Processing
for credit to: United of Omaha Life Insurance Company
Account Number
a/c
PPN: 83354* AA6
Interest Amount: ________________
Principal Amount: ________________
Notices
All notices of payments of principal and interest, on or in respect of the Notes and written
confirmation of each such payment, corporate actions and reorganization notifications to:
JPMorgan Chase Bank
14201 Dallas Parkway, 13th Floor
Dallas, Texas 75254-2917
Attention: Income Processing G. Ruiz
a/c:
All other notices and communications (
i.e.,
quarterly/annual reports, tax filings, modifications,
waivers regarding the indenture) to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number:
A-9
Notes should be forwarded to:
JPMorgan Chase Bank
4 Chase Metrotech Center, 3rd Floor
Brooklyn, New York 11245-0001
Attention: Physical Receive Department
Account #
A-10
|
|
|
|
|
Principal Amount of
|
Name and Address of Noteholder
|
|
Notes
|
|
|
|
Modern Woodmen of America
|
|
$5,000,000
|
1701 First Avenue
|
|
|
Rock Island, Illinois 61201
|
|
|
Attention: Investment Department
|
|
|
Investments@Modern-Woodmen.org
|
|
|
Fax: (309) 793-5574
|
|
|
Payments
All payments on or in respect of the Notes to be by bank wire transfer of federal or other
immediately available funds (identifying each payment as Snyders Lance, Inc., 5.72% Senior
Notes due 2017, PPN# 83354*AA6, principal, premium or interest) to:
The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
ABA #
Account Name: Modern Woodmen of America
Account Number
Each such wire transfer shall set forth the name of the Company, the full title (including the
applicable coupon rate and final maturity date) of the Notes, a reference to PPN 83354* AA6 and the
due date and application (as among principal, premium and interest) of the payment being made.
Notices
All notices and communications to be addressed as first provided above, except notices with respect
to payments and written confirmation of each such payment, to be addressed:
Modern Woodmen of America
1701 First Avenue
Rock Island, Illinois 61201
Attention: Investment Accounting Department
Fax: (309) 793-5688
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number:
A-11
Deliver Securities to:
Modern Woodmen of America
1701 First Avenue
Rock Island, IL 61201
Attn: Douglas A. Pannier
A-12
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:
Acquired EBITDA
means, with respect to any Person or division (or similar business unit)
acquired by the Company in an Acquisition during any Computation Period, the total of (a) the
consolidated net income from continuing operations of such Person or division (or similar business
unit) for the period from the first day of such Computation Period to the date of such Acquisition
plus
(b) to the extent deducted in determining such consolidated net income (and without
duplication), interest expense (whether paid or accrued and including imputed interest expense in
respect of Capital Leases), income taxes, depreciation and amortization,
minus
(c) to the extent
included in such consolidated net income, any income tax refunds.
Acquired Subsidiary Indebtedness
means all Indebtedness of any Person which becomes a
Subsidiary after the date of Closing and which (a) is outstanding on the date such Person becomes a
Subsidiary (or such Person is at such time contractually bound, in writing to incur such
Indebtedness), (b) has not been (and is not being) incurred, extended or renewed in contemplation
of such Person becoming a Subsidiary, and (c) remains outstanding for a period of not more than 180
days from the date such Person becomes a Subsidiary.
Acquisition
means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or
amalgamation or any other combination with another Person (other than a Person that is a
Subsidiary).
Administrative Agent
means Bank of America, National Association, as Administrative Agent
under the Bank Credit Agreement, and its successors and assigns.
Affiliate
means, at any time, and with respect to any Person, any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person, and, with respect to the Company, shall include any
Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting
or equity interests of the Company or any Subsidiary or any Person of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or more of any
class of voting or equity interests. As used in this definition,
Control
means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an Affiliate is a reference to
an Affiliate of the Company.
Agreement
is defined in the first paragraph of this Agreement.
Schedule B
(to Amended and Restated Note Purchase Agreement)
Anti-Terrorism Order
means Executive Order No. 13224 of September 24, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
Asset Disposition
means any Transfer except:
(a) any Transfer between or among the Company and Subsidiary Guarantors; and
(b) any Transfer made in the ordinary course of business and involving only property
that is either (i) inventory held for sale, (ii) equipment, fixtures, supplies or assets no
longer required in the operation of the business of the Company or any of its Subsidiaries
or that is obsolete or (iii) Distribution Routes. For purposes of the foregoing, a
Distribution Route
represents the right to sell the Companys or any Subsidiarys snack
food products to authorized accounts (wholesale and retail) in a specified geographical
territory.
Assignment and Assumption
is defined in Recital D.
Bank Credit Agreement
means the Credit Agreement dated as of December 7, 2010, among the
Company, the Administrative Agent, and the Lenders named therein, as amended from time to time, any
replacement, additional or successor agreement or agreements thereto.
Business Day
means (a) for the purposes of Section 8.6 only, any day other than a Saturday,
a Sunday or a day on which commercial banks in New York City are required or authorized to be
closed, and (b) for the purposes of any other provision of this Agreement, any day other than a
Saturday, a Sunday or a day on which commercial banks in New York, New York or Charlotte, North
Carolina are required or authorized to be closed.
Capital Lease
means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
Closing
is defined in Section 3.
Code
means the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
Company
means Lance, Inc., a North Carolina corporation, or any successor that becomes such
in the manner prescribed in Section 10.2. From and after the filing and effectiveness of an
amendment, if any, to the Companys Articles of Incorporation changing the Companys name from
Lance, Inc. to Snyders Lance, Inc., then
Company
shall refer to Snyders-Lance, Inc. as
provided in Section 2.4.
Computation Period
means any period of four consecutive fiscal quarters ending on the last
day of a fiscal quarter.
B-2
Confidential Information
is defined in Section 20.
Consolidated Total Assets
means the total assets of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
Contingent Obligation
means, as to any Person, without duplication, any direct or indirect
liability of such Person, whether or not contingent, with or without recourse, (a) with respect to
any Indebtedness, lease, dividend, letter of credit or other obligation (the primary obligations)
of another Person (the primary obligor), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security therefor, (ii) to advance
or provide funds for the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of the primary obligor,
(iii) to purchase property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof; (b) with respect to any Surety Instrument issued for
the account of such Person or as to which such Person is otherwise liable for reimbursement of
drawings or payments; or (c) in respect of any Swap Contract. The amount of any Contingent
Obligation shall (a) in the case of any Guaranty, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof, and (b) in the
case of other Contingent Obligations, be equal to the maximum reasonably anticipated liability in
respect thereof.
Continuing Member
means a member of the Board of Directors of the Company who either (a) was
a member of the Companys Board of Directors on the date of Closing and has been such continuously
thereafter or (b) became a member of such Board of Directors after the date of Closing and whose
election or nomination for election was approved by a vote of the majority of the Continuing
Members then members of the Companys Board of Directors.
Default
means an event or condition the occurrence or existence of which would, with the
lapse of time or the giving of notice or both, become an Event of Default.
Default Rate
means that rate of interest per annum that is the greater of (i) 2.0% above the
rate of interest stated in clause (a) of the first paragraph of the Notes or (ii) 2.0% over the
rate of interest publicly announced by JPMorgan Chase Bank, N.A. in New York, New York as its
base or prime rate.
Disclosure Documents
is defined in Section 5.3.
Disposed EBITDA
means, with respect to any Person or division (or similar business unit)
sold or otherwise disposed of by the Company during any Computation Period, the total of (a) the
consolidated net income from continuing operations of such Person or division (or similar business
unit) for the period from the first day of such Computation Period to the date of such sale or
other disposition
plus
(b) to the extent deducted in determining such consolidated net
B-3
income (and without duplication), interest expense (whether paid or accrued and including
imputed interest expense in respect of Capital Leases), income taxes, depreciation and
amortization,
minus
(c) to the extent included in such consolidated net income, any income tax
refunds.
Disposition Value
means, at any time, with respect to any property
(a) in the case of property that does not constitute Subsidiary Stock, the book value
thereof, valued at the time of such disposition in good faith by the Company, and
(b) in the case of property that constitutes Subsidiary Stock, an amount equal to that
percentage of book value of the assets of the Subsidiary that issued such Subsidiary Stock
as is equal to the percentage that the book value of such Subsidiary Stock represents of the
book value of all of the outstanding capital stock or similar equity interests of such
Subsidiary (assuming, in making such calculations, that all Securities convertible into such
capital stock or similar equity interests are so converted and giving full effect to all
transactions that would occur or be required in connection with such conversion) determined
at the time of the disposition thereof, in good faith by the Company.
EBIT
means, for any Computation Period, the Companys consolidated net income from
continuing operations for such period, determined on a consolidated basis for the Company and its
Subsidiaries in accordance with GAAP,
plus
, to the extent deducted in determining such earnings,
Interest Expense and income taxes,
minus
, to the extent included in determining such earnings, any
income tax refunds.
EBITDA
means, for any Computation Period, the Companys consolidated net income from
continuing operations for such period, determined on a consolidated basis for the Company and its
Subsidiaries in accordance with GAAP,
plus
, to the extent deducted in determining such earnings,
Interest Expense, income taxes, depreciation and amortization,
minus
, to the extent included in
determining such earnings, any income tax refunds,
plus
any Acquired EBITDA and any fees and
expenses incurred in connection with any Acquisition, any costs or charges to the Company and its
Subsidiaries as a result of an increase in value to the pre-acquisition historical amounts of
accounts receivables, inventories or any other current assets (a
write-up
), in each case to the
extent that such write-up is required by GAAP and occurs as a result of an Acquisition,
minus
any
Disposed EBITDA,
plus
fees and expenses incurred in connection with any disposition giving rise to
Disposed EBITDA.
Electronic Delivery
is defined in Section 7.1(a).
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 but
not limited to those related to Hazardous Materials.
B-4
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in effect.
ERISA Affiliate
means any trade or business (whether or not incorporated) that is treated as
a single employer together with the Company under section 414 of the Code.
Event of Default
is defined in Section 11.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Existing Credit Agreement
means the Credit Agreement dated as of October 20, 2006 among the
Company, Tamming Foods Ltd., the lenders party thereto and Bank of America, National Association,
as administrative agent, issuing lender and Canadian agent.
Financing Agreements
means and includes this Agreement, the Notes, the Subsidiary Guaranty
Agreement, if any, and any other agreement, certificate and/or instrument executed and or delivered
in connection therewith, as such agreements may be amended, restated, joined, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
Form 10-K
is defined in Section 7.1(b).
Form 10-Q
is defined in Section 7.1(a).
GAAP
means generally accepted accounting principles as in effect from time to time in the
United States of America.
Governmental Authority
means
(a) the government of
(i) the United States of America or any State or other political subdivision
thereof, or
(ii) any other jurisdiction in which the Company or any Subsidiary conducts all
or any part of its business, or which asserts jurisdiction over any properties of
the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.
B-5
Guarantee Agreement
is defined in the Original Note Agreement.
Guaranteed Obligations
is defined in the Original Note Agreement.
Guaranty
means, with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other
Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security
therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or
obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in
respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.
Guaranty Release
is defined in Recital E.
Hazardous Material
means any and all pollutants, toxic or hazardous wastes or other
substances that might pose a hazard to health and safety, the removal of which may be required or
the generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law including, but not
limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized
substances.
holder
means, with respect to any Note the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 13.1.
B-6
Indebtedness
with respect to any Person means, at any time, without duplication,
(a) all indebtedness of such Person for borrowed money;
(b) all obligations issued, undertaken or assumed by such Person as the deferred
purchase price of property or services (other than trade payables entered into in the
ordinary course of business on ordinary terms including Company credit card debt);
(c) all reimbursement or payment obligations of such Person with respect to Surety
Instruments;
(d) all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments;
(e) all indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with respect to
property acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession or sale of
such property);
(f) all obligations of such Person with respect to Capital Leases which should be
recorded on a balance sheet of such Person in accordance with GAAP;
(g) all Indebtedness of the types referred to in clause (a) through (f) above secured
by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts and contracts
rights) owned by such Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness, provided that the amount of any such Indebtedness shall be
deemed to be the lesser of the face principal amount thereof and the fair market value of
the property subject to such Lien; and
(h) all Guaranties of such Person in respect of Indebtedness or obligations of others.
For all purposes of this Agreement, the Indebtedness of any Person shall include all Indebtedness
of any partnership or joint venture in which such Person is a general partner or a joint venturer
to the extent of such Persons liability therefor;
provided
that to the extent that any such
indebtedness is expressly non-recourse to such Person it shall not be included as Indebtedness.
Indebtedness Prepayment Application
means, with respect to any Transfer of property
constituting an Asset Disposition, the application by the Company or any Subsidiary of cash in an
amount equal to the Net Proceeds Amount (or portion thereof) with respect to such Transfer to pay
Senior Indebtedness;
provided
, that in the event such Senior Indebtedness would otherwise permit
the reborrowing of such Senior Indebtedness by the Company or such Subsidiary, the commitment to
relend such Senior Indebtedness shall be permanently reduced by the amount of such Indebtedness
Prepayment Application.
B-7
Institutional Investor
means (a) any Noteholder, (b) any holder of a Note holding (together
with one or more of its affiliates) more than 10% of the aggregate principal amount of the Notes
then outstanding, (c) any bank, trust company, savings and loan association or other financial
institution, any pension plan, any investment company, any insurance company, any broker or dealer,
or any other similar financial institution or entity, regardless of legal form, and (d) any Related
Fund of any holder of any Note.
Interest Coverage Ratio
means, for any Computation Period, the ratio of (a) EBIT for such
Computation Period, to (b) Interest Expense for such Computation Period.
Interest Expense
means interest expense (whether paid or accrued and including imputed
interest expense in respect of Capital Leases) of the Company and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
Lenders
means the banks and other financial institutions from time to time party to the Bank
Credit Agreement as lenders thereunder, and their successors and assigns.
Lien
means, with respect to any Person, any mortgage, lien, pledge, charge, security
interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset of such Person (including in the case
of stock, stockholder agreements, voting trust agreements and all similar arrangements).
Make-Whole Amount
is defined in Section 8.6.
Material
means material in relation to the business, operations, affairs, financial
condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.
Material Acquisition
means any Acquisition whereby the consideration (excluding Company
stock) for such Acquisition exceeds $50,000,000.
Material Adverse Effect
means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a
whole, or (b) the ability of the Company to perform its obligations under this Agreement and the
Notes, or (c) the ability of any Subsidiary Guarantor, if any, to perform its obligations under the
Subsidiary Guaranty Agreement, or (d) the validity or enforceability of this Agreement, the Notes,
the Subsidiary Guaranty Agreement or any other Financing Agreement.
Material Debt Facility
means any credit, loan or borrowing facility or note purchase
facility of the Company or any Subsidiary providing for a credit or loan commitment (whether or not
any Indebtedness pursuant thereto shall be outstanding) in a principal amount in excess of
$50,000,000. For the avoidance of doubt, Material Debt Facility shall include the Bank Credit
Agreement.
Material Financial Obligations
means Indebtedness or Contingent Obligations of the Company
or any Subsidiary or obligations of the Company or any Subsidiary in respect of any
B-8
Securitization Transaction, in an aggregate principal amount (for all applicable Indebtedness,
Contingent Obligations and obligations in respect of Securitization Transactions) equal to or
greater than $20,000,000.
Merger
is defined in Recital B.
Merger Agreement
is defined in Recital B.
Merger Sub
is defined in Recital B.
Multiemployer Plan
means any Plan that is a multiemployer plan (as such term is defined in
section 4001(a)(3) of ERISA).
NAIC
means the National Association of Insurance Commissioners or any successor thereto.
Net Proceeds Amount
means, with respect to any Transfer of any asset by the Company or any
Subsidiary, an amount equal to the difference of:
(a) the aggregate amount of consideration (valued at the fair market value thereof by
the Company or such Subsidiary in good faith) received by the Company or such Subsidiary in
respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses actually incurred by
the Company or such Subsidiary in connection with such Transfer.
Noteholder
is defined in the first paragraph of this Agreement.
Note Party
means, collectively, the Company, Snyders Manufacturing and Snyders and,
individually, any one of them.
Notes
is defined in Section 1.1.
Officers Certificate
means a certificate of a Senior Financial Officer or of any other
officer of the Company whose responsibilities extend to the subject matter of such certificate.
Original Note Agreement
is defined in Recital A.
Original Noteholders
is defined in Recital A.
Original Notes
is defined in Recital A.
PBGC
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any
successor thereto.
B-9
Person
means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, business entity or Governmental Authority.
Plan
means an employee benefit plan (as defined in section 3(3) of ERISA) subject to Title
I of ERISA that is or, within the preceding five years, has been established or maintained, or to
which contributions are or, within the preceding five years, have been made or required to be made,
by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.
Principal Shareholders
means (i) the lineal descendants of Michael A. Warehime, including
adopted persons as well as biological descendants, (ii) any spouse, widow or widower of any such
descendant and (iii) any trust, estate, custodian or other fiduciary or similar account solely for
the benefit of one or more individuals described in clause (i) or (ii) above.
property
or
properties
means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.
Property Reinvestment Application
means, with respect to any Asset Disposition, the
application of the Net Proceeds Amount (or a portion thereof) with respect to such Asset
Disposition to the acquisition by the Company or any Subsidiary of fixed or capital assets of the
Company or any Subsidiary to be used in the business of such Person.
PTE
is defined in Section 6.2(a).
Qualified Institutional Buyer
means any Person who is a qualified institutional buyer
within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.
Related Fund
means, with respect to any holder of any Note, any fund or entity that (i)
invests in Securities or bank loans, and (ii) is advised or managed by such holder, the same
investment advisor as such holder or by an affiliate of such holder or such investment advisor.
Required Holders
means, at any time, the holders of more than 50% in principal amount of the
Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).
Responsible Officer
means any Senior Financial Officer and any other officer of the Company
with responsibility for the administration of the relevant portion of this Agreement.
SEC
shall mean the Securities and Exchange Commission of the United States, or any successor
thereto.
Securities
or
Security
shall have the meaning specified in Section 2(1) of the Securities
Act.
Securities Act
means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.
B-10
Securitization Transaction
means any sale, assignment or other transfer by the Company or
any Subsidiary of accounts receivable, lease receivables or other payment obligations owing to the
Company or any Subsidiary or any interest in any of the foregoing, together in each case with any
collections and other proceeds thereof, any collection or deposit accounts related thereto, and any
collateral, guaranties or other property or claims in favor of the Company or such Subsidiary
supporting or securing payment by the obligor thereon of, or otherwise related to, any such
receivables.
Senior Financial Officer
means the chief financial officer, principal accounting officer,
treasurer or comptroller of the Company.
Senior Indebtedness
shall mean and include (i) any Indebtedness of the Company (other than
Indebtedness owing to any Affiliate) which is not expressed to be junior or subordinate to any
other Indebtedness of the Company, and (ii) any Indebtedness of a Subsidiary (other than
Indebtedness owing to any Affiliate) which is not expressed to be junior or subordinate to any
other Indebtedness of such Subsidiary.
Snyders
is defined in the first paragraph of this Agreement.
Snyders Manufacturing
is defined in the first paragraph of this Agreement.
Subsidiary
means, as to any Person, any other Person in which such first Person or one or
more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing similar functions) of
such second Person, and any partnership or joint venture if more than a 50% interest in the profits
or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first
Person and one or more of its Subsidiaries (unless such partnership or joint venture can and does
ordinarily take major business actions without the prior approval of such Person or one or more of
its Subsidiaries). Unless the context otherwise clearly requires, any reference to a Subsidiary
is a reference to a Subsidiary of the Company (and shall include each of Snyders and its
Subsidiaries as if the Merger has been consummated).
Subsidiary Guarantor
means each Subsidiary of the Company which has executed a Subsidiary
Guaranty Agreement.
Subsidiary Guaranty Agreement
means the subsidiary guaranty agreement substantially in the
form of Exhibit 9.7 and any and all amendments and supplements from time to time thereto.
Subsidiary Stock
means, with respect to any Person, the capital stock or limited liability
company or other equity (or any options or warrants to purchase stock or similar equity interests
or other Securities exchangeable for or convertible into stock or similar equity interests) of any
Subsidiary of such Person.
B-11
Surety Instruments
means all letters of credit (including standby and commercial), bankers
acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.
Swap Contract
means any agreement, whether or not in writing, relating to any transaction
that is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap or option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the foregoing.
SVO
means the Securities Valuation Office of the NAIC or any successor to such Office.
Synthetic Lease
means, at any time, any lease (including leases that may be terminated by
the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP
and (b) in respect of which the lessee retains or obtains ownership of the property so leased for
U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
Total Indebtedness
means, at any time, all Indebtedness of the Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP and to the extent not included in the
definition of Indebtedness, the aggregate outstanding investment or claim held at such time by
purchasers, assignees or other transferees of (or of interests in) receivables or other rights to
payment of the Company and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization Transaction).
Total Indebtedness to EBITDA Ratio
means, for any Computation Period, the ratio of (a) Total
Indebtedness as of the last day of such Computation Period, to (b) EBITDA for such Computation
Period.
Transfer
means, with respect to any Person, any transaction (including by merger,
consolidation or disposition of all or substantially all the assets of such Person) in which such
Person sells, conveys, transfers or leases (as lessor) any of its property, including, without
limitation, Subsidiary Stock.
Transfer
shall also include the creation of minority interests in
connection with any merger or consolidation involving a Subsidiary if the resulting entity is
owned, directly or indirectly, by the Company in a proportion less than the proportion of ownership
of such Subsidiary by the Company immediately preceding such merger or consolidation.
USA Patriot Act
means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, as amended from time to time, and the rules and regulations promulgated thereunder from time
to time in effect.
B-12
Wholly-Owned Subsidiary
means, at any time, any Subsidiary one hundred percent of all of the
equity interests (except directors qualifying shares) and voting interests of which are owned by
any one or more of the Company and the Companys other Wholly-Owned Subsidiaries at such time.
B-13
DISCLOSURE MATERIALS
The Companys S-4/Proxy Statement dated October 29, 2010.
Presentation to Lenders Meeting dated September 28, 2010.
Schedule
5.3
(to Amended and Restated Note Purchase Agreement)
SUBSIDIARIES, AFFILIATES, DIRECTORS AND SENIOR OFFICERS
(a)(i)
Companys Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
|
Percentage
|
|
|
|
|
|
|
|
Equity Interests
|
|
|
of Equity Interests
|
|
|
|
Jurisdiction of
|
|
|
Owned by
|
|
|
Owned by a
|
|
Name
|
|
Organization
|
|
|
Company
|
|
|
Subsidiary
|
|
Archer Assets, LLC
|
|
NC
|
|
|
|
|
|
|
100
|
|
Brent and Sams Inc.
|
|
AK
|
|
|
|
|
|
|
100
|
|
Cape Cod Potato Chip Company, LLC
|
|
MA
|
|
|
100
|
|
|
|
|
|
Caronuts, Inc.
|
|
NC
|
|
|
100
|
|
|
|
|
|
Fresno Ventures, Inc.
|
|
NC
|
|
|
100
|
|
|
|
|
|
Lance Mfg. LLC
|
|
NC
|
|
|
100
|
|
|
|
|
|
Lanhold Investments, Inc.
|
|
DE
|
|
|
100
|
|
|
|
|
|
North State Cookies, LLC
|
|
NC
|
|
|
|
|
|
|
100
|
|
Vista Bakery, Inc.
|
|
NC
|
|
|
100
|
|
|
|
|
|
Tamming Foods Ltd.
|
|
Ontario
|
|
|
|
|
|
|
100
|
|
G and A Snack Distributing, Inc.
|
|
CA
|
|
|
|
|
|
|
100
|
|
Grande Foods
|
|
CA
|
|
|
|
|
|
|
100
|
|
Krunchers, Inc.
|
|
DE
|
|
|
|
|
|
|
100
|
|
Melisi Snack Foods, Inc.
|
|
CT
|
|
|
|
|
|
|
80
|
|
Michaud Distributors
|
|
ME
|
|
|
|
|
|
|
80
|
|
Patriot Snacks, L.L.C.
|
|
MA
|
|
|
|
|
|
|
100
|
|
Patriot Snacks Real Estate, LLC
|
|
DE
|
|
|
|
|
|
|
51
|
|
Snyders of Delaware, Inc.
|
|
DE
|
|
|
|
|
|
|
100
|
|
Snyders of Hanover, Inc.
|
|
PA
|
|
|
100
|
|
|
|
|
|
Snyders of Hanover Manufacturing, Inc.
|
|
PA
|
|
|
|
|
|
|
100
|
|
Snyders of Hanover Sales Company, Inc.
|
|
PA
|
|
|
|
|
|
|
100
|
|
Snyders of Hanover Snacks, Inc.
|
|
AZ
|
|
|
|
|
|
|
100
|
|
SOH Capital, LLC
|
|
PA
|
|
|
|
|
|
|
100
|
|
SOH Distribution Company, Inc.
|
|
DE
|
|
|
|
|
|
|
100
|
|
SOH Health Services, Inc.
|
|
DE
|
|
|
|
|
|
|
100
|
|
SOH IP Company, Inc.
|
|
AZ
|
|
|
|
|
|
|
100
|
|
SOH Real Estate Investment, LLC
|
|
DE
|
|
|
|
|
|
|
100
|
|
SOH Transportation, LLC
|
|
PA
|
|
|
|
|
|
|
100
|
|
Thompson Distributing, Inc.
|
|
MO
|
|
|
|
|
|
|
100
|
|
Schedule 5.4
(to Amended and Restated Note Purchase Agreement)
(a)(ii)
Companys Affiliates Other than Subsidiaires
Michael A. and Patricia Warehime
Late July Snacks LLC
(a)(iii)
Companys Directors and Senior Officers
|
|
|
|
|
|
|
Directors
|
|
|
|
|
|
|
|
|
|
Jeffrey A. Atkins
|
|
|
|
|
William R. Holland
|
|
|
|
|
James W. Johnston
|
|
|
|
|
W. J. Prezzano
|
|
|
|
|
Dan C. Swander
|
|
|
|
|
Isaiah Tidwell
|
|
|
|
|
David V. Singer
|
|
|
|
|
Michael A. Warehime
|
|
|
|
|
Patricia A. Warehime
|
|
|
|
|
Carl E. Lee, Jr.
|
|
|
|
|
Peter P. Brubaker
|
|
|
|
|
John E. Denton
|
|
|
|
|
C. Peter Carlucci, Jr.
|
|
|
|
|
Sally W. Yelland
|
|
|
|
|
|
|
|
|
|
Officers
|
|
|
|
|
|
|
|
|
|
David V. Singer
|
|
Chief Executive Officer
|
|
|
Carl E. Lee, Jr.
|
|
President and Chief Operating Officer
|
|
|
Rick D. Puckett
|
|
Executive Vice President, Chief
Financial Officer, Treasurer and Secretary
|
|
|
Glenn A. Patcha
|
|
Senior Vice President, Sales and Marketing
|
|
|
Blake W. Thompson
|
|
Senior Vice President, Supply Chain
|
|
|
Kevin A. Henry
|
|
Senior Vice President and Chief Human Resources Officer
|
|
|
Margaret E. Wicklund
|
|
Vice President, Corporate Controller and Assistant Secretary
|
5.4- 16
FINANCIAL STATEMENTS
Financial Statements Delivered to Noteholders
Snyders of Hanover, Inc. Annual Reports for the fiscal years ending March 28, 2010, March 29,
2009, March 30, 2008, April 1, 2007 and April 2, 2006.
Snyders of Hanover, Inc. Quarterly Report for the fiscal quarter ending October 11, 2010.
Lance, Inc. Annual Reports (form 10-K) for the fiscal years ending December 12, 2009, December 27,
2008, December 29, 2007, December 30, 2006 and December 31, 2005.
Lance, Inc. Quarterly Report (form 10-Q) for the quarter ending September 25, 2010.
By reference to the S4 filed October 29, 2010; consolidated financial statements for the merged
entity Snyders-Lance, Inc.
Schedule 5.5
(to Amended and Restated Note Purchase Agreement)
EXISTING INDEBTEDNESS
(a)(i)
Existing Indebtedness of Lance, Inc. as of September 29, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
|
Indebtedness
|
|
Outstanding
|
|
Obligor
|
|
Collateral
|
|
Guaranty
|
$50,000,000 Term
Note with
Syndicated Bank
Group led by Bank
Of America maturing
October 2011
|
|
$
|
50,000,000
|
|
|
Lance, Inc.
|
|
None
|
|
None
|
$100,000,000
revolving credit
facility with
Syndicated Bank
Group led by Bank
of America maturing
in October 2011
|
|
$
|
56,000,000
|
|
|
Lance, Inc.
|
|
None
|
|
None
|
(a)(ii)
Existing Indebtedness of Snyders of Hanover, Inc. and Snyders of Hanover Manufacturing as of
October 10, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
|
Indebtedness
|
|
Outstanding
|
|
Obligor
|
|
Collateral
|
|
Guaranty
|
$1,500,000 Secured term
loan payable from TD
Banknorth maturing July
2013
|
|
$
|
876,294
|
|
|
Michaud Distributors
|
|
All business assets
|
|
Snyders of
Hanover, Inc.
|
$1,238,683 Libor rate
loan from Manufacturers &
Traders Trust Company
maturing July 2018
|
|
$
|
1,179,252
|
|
|
Patriot Snacks Real
Estate, LLC
|
|
Property: 2 Annette
Road, Foxborough,
MA
|
|
Snyders of
Hanover, Inc.
Snyders of Hanover
Mfg
|
$10,000,000 Libor rate
loan from Wachovia Bank,
N.A.
maturing September 2015
|
|
$
|
5,606,444
|
|
|
Snyders of Hanover
Mfg., Inc.
|
|
Pledge of
Marketable
Securities
|
|
None
|
Schedule 5.15
(to Amended and Restated Note Purchase Agreement)
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
|
Indebtedness
|
|
Outstanding
|
|
Obligor
|
|
Collateral
|
|
Guaranty
|
$2,915,684 Libor rate
loan from Manufacturers &
Traders Trust Company
maturing December 2011
|
|
$
|
2,674,524
|
|
|
Patriot Snacks Real
Estate, LLC
|
|
Assignment to bank
of all present and
future agreements
related to the
premises
|
|
Snyders of
Hanover, Inc.
Snyders of Hanover
Mfg
|
$1,000,000 Term loan from
Webster Bank payable
December 2015
|
|
$
|
695,994
|
|
|
Melisi Snack Foods,
Inc.
|
|
All business assets
|
|
None
|
$3,300,000 Libor rate
loan from TD Banknorth,
N.A.
maturing March 2017
|
|
$
|
2,334,495
|
|
|
Michaud
Distributors
|
|
Inventory, Chattel
Paper, Accounts,
Equipment and
General Intangibles
|
|
None
|
$10,000,000 Libor rate
loan from Manufacturers
and Traders Trust
Company, maturing
November 2013
|
|
$
|
3,083,334
|
|
|
Snyders of Hanover
Mfg., Inc.
|
|
None
|
|
Company
|
$800,000 Term loan from
TD Banknorth payable July
2013
|
|
$
|
628,580
|
|
|
Michaud Distributors
|
|
None
|
|
None
|
$600,000 Secured term
loan payable from TD
Banknorth maturing
January 2012
|
|
$
|
157,490
|
|
|
Michaud Distributors
|
|
Pledge of notes
receivable due from
independent
operators
|
|
None
|
Vehicle installment note
through 2011
|
|
$
|
4,394
|
|
|
Melisi Snack Foods
|
|
Vehicle
|
|
None
|
Installment notes payable
through 2011
|
|
$
|
162,133
|
|
|
Michaud Distributors
|
|
None
|
|
None
|
Capital lease obligations
|
|
$
|
32,449
|
|
|
Patriot Snacks, ,LLC
|
|
Tow motors
|
|
None
|
Installment notes payable
through 2011
|
|
$
|
18,385
|
|
|
Melisi Snack Foods,
Inc.
|
|
None
|
|
None
|
Capital lease obligation
|
|
$
|
12,416
|
|
|
Melisi Snack Foods,
Inc.
|
|
Tow motor
|
|
None
|
Non-interest bearing
covenant due B. Reese
payable through 2010 (1)
|
|
$
|
3,333
|
|
|
Snyders of Hanover
Mfg., Inc.
|
|
None
|
|
None
|
5.15-2
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal
|
|
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
|
Indebtedness
|
|
Outstanding
|
|
Obligor
|
|
Collateral
|
|
Guaranty
|
Equipment revolver from
TD Banknorth payable
through 2010
|
|
$
|
722,347
|
|
|
Michaud Distributors
|
|
None
|
|
None
|
Senior notes due June 2017
|
|
$
|
100,000,000
|
|
|
Snyders of
Hanover Mfg., Inc.
|
|
None
|
|
Snyders of
Hanover, Inc.
|
Guarantee to Bank of
America for loans
directly to independent
route operators;
guarantee is to protect
25% of outstanding loan
amounts, which is
currently $12.2 million
as of October 10, 2010
|
|
$3,050,000
maximum exposure
assuming all
operators default
|
|
Independent
Route Operators
|
|
None
|
|
Snyders of
Hanover, Inc.
|
|
|
|
(1)
|
|
Final payment to B. Reese was made November 2010.
|
(b)
None.
(c)
None.
5.15-3
[Form of Note]
Lance, Inc.1
5.72% Senior Note Due June 12, 2017
|
|
|
No. [__]
|
|
[Date]
|
$[___]
|
|
PPN 83354*AA6
|
For Value Received
, the undersigned,
Lance, Inc.
(herein called the
Company
), a corporation organized and existing under the laws of the State of North Carolina,
hereby promises to pay to [____________], or registered assigns, the principal sum of
[_____________________]
Dollars
(or so much thereof as shall not have been prepaid) on
June 12, 2017, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance hereof at the rate of 5.72% per annum from the date hereof, payable
semiannually, on the 12th day of June and December in each year, commencing with the June or
December next succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the
continuance of an Event of Default, on such unpaid balance and on any overdue payment of any
Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 7.72% or (ii)
2.0% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time in
New York, New York as its base or prime rate, payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are
to be made in lawful money of the United States of America at JPMorgan Chase Bank, N.A. in New
York, New York or at such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of the Senior Notes (herein called the
Notes
) issued pursuant to the
Amended and Restated Note Purchase Agreement, dated as of December 7, 2010 (as from time to time
amended, the
Note Purchase Agreement
), among the Company, Snyders of Hanover Manufacturing,
Inc., Snyders of Hanover, Inc., and the respective Noteholders
named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note
Purchase Agreement (except that with respect to any holder of this Note other than the original
|
|
|
1
|
|
After the filing and effectiveness of an amendment, if
any, to the Companys Articles of Incorporation changing the Companys
name from Lance, Inc. to Snyders-Lance, Inc., references in this form
of instrument to Lance, Inc. shall be deemed a reference to
Snyders-Lance, Inc.
|
Exhibit
1
(to Amended and Restated Note Purchase Agreement)
Noteholder, for purposes of the representation in Section 6.2, all references therein to Snyders
Manufacturing shall be deemed references to the Company). Unless otherwise indicated,
capitalized terms used in this Note shall have the respective meanings ascribed to such terms in
the Note Purchase Agreement.
Payment of the principal of, and Make-Whole Amount, if any, and interest on this Note has been
unconditionally guaranteed by each Subsidiary Guarantor, if any, in accordance with the terms of
the Subsidiary Guaranty Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer accompanied by a written instrument of transfer duly
executed, by the registered holder hereof or such holders attorney duly authorized in writing, a
new Note for a like principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company may treat the
person in whose name this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be affected by any notice to the
contrary.
This Note is subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any applicable Make-Whole
Amount) and with the effect provided in the Note Purchase Agreement.
This Note amends and restates that certain Senior Note dated June 12, 2007 in the original
principal amount of $[_________] executed and delivered by Snyders of Hanover Manufacturing, Inc.
(the
Original Note
). This Note is executed and delivered in substitution for, but not in
satisfaction of, the Original Note.
This Note shall be construed and enforced in accordance with, and the rights of the Company
and the holder of this Note shall be governed by, the law of the State of New York excluding
choice-of-law principles of the law of such State that would permit the application of the laws of
a jurisdiction other than such State.
|
|
|
|
|
|
Lance, Inc.
|
|
|
By
|
|
|
|
|
Name
|
|
|
|
|
Title
|
|
|
-2-
Form of Opinion of Special Counsel
to the Company
December 7, 2010
To each of the Noteholders listed on
Schedule A to the Purchase Agreement (as defined below)
Re: Lance, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Lance, Inc., a North Carolina corporation (the
Company
), in connection with the Amended and Restated Note Purchase Agreement dated as of
December 7, 2010 (the
Purchase Agreement
) between the noteholders named on Schedule A to
the Purchase Agreement (each a
Noteholder
) and the Company. The Purchase Agreement
provides for the amendment and restatement of certain notes issued by the Company to the
Noteholders (the
Transaction
). We are delivering this opinion letter to you at the
Companys request pursuant to Section 4.4(a) of the Purchase Agreement. This opinion letter has
been prepared and should be understood in accordance with the
Legal Opinion Principles
, 53 Bus.Law.
831 (1998) and
Guidelines for the Preparation of Closing Opinions
, 57 Bus.Law. 875 (2002), of the
Committee on Legal Opinions, ABA Section of Business Law
.
The following documents, all dated as of December 7, 2010, are referred to collectively in
this opinion letter as the
Transaction Documents
:
|
1.
|
|
Purchase Agreement; and
|
|
|
2.
|
|
5.72% Senior Notes due June 12, 2017 by the Company payable to each of the
Noteholders in the principal amounts set forth on Schedule A to the Purchase Agreement.
|
Capitalized terms used but not defined in this opinion letter have the meanings given to them
in the Purchase Agreement. References in this opinion letter to our knowledge mean a conscious
present awareness of facts, without investigation, by any of the lawyers currently with this firm
who have given substantive attention to legal representation of the Company in matters relating
directly to the Transaction Documents.
In connection with rendering the opinions set forth below, we have examined the Transaction
Documents and made such other investigation as we have deemed appropriate. We have examined and
relied on certificates of public officials and, as to certain matters of fact that are material to
our opinions, we have also examined and relied on a certificate of an officer of
Exhibit
4.4(a)
(to Amended and Restated Note Purchase Agreement)
the Company (the
Fact Certificate
). A copy of the Fact Certificate has been
furnished to you or your counsel. We have not independently established any of the facts so relied
on.
For the purposes of this opinion letter we have made assumptions that are customary in opinion
letters of this kind, including the assumptions that each document submitted to us is accurate and
complete, that each such document that is an original is authentic, that each such document that is
a copy conforms to an authentic original, that all signatures on each such document are genuine,
and that no changes in the facts certified in the Fact Certificate have occurred or will occur
after the date of the Fact Certificate. We have further assumed the legal capacity of natural
persons, and we have assumed that each party to each of the Transaction Documents (other than the
Company) has the legal capacity and has satisfied all legal requirements necessary to make that
Transaction Document enforceable against it. We have not verified any of the foregoing
assumptions.
The opinions expressed in this opinion letter are limited to the law of the State of North
Carolina, other than its law relating to choice of law, and federal law of the United States that
in our experience is applicable to transactions of the type contemplated by the Transaction
Documents. We are not opining on specialized laws that are not customarily covered in opinion
letters of this kind, such as tax, insolvency, antitrust, pension, employee benefit, environmental,
intellectual property, banking, insurance, labor, health and safety, and securities laws. In
addition, we are not opining on the law of any county, municipality or other political subdivision
or local governmental agency or authority.
Based on the foregoing, and subject to the foregoing and the additional qualifications and
other matters set forth below, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing under the laws of the
State of North Carolina.
2. The Company has the corporate power to execute, deliver, and perform its obligations under
each of the Transaction Documents.
3. The Company has taken all corporate action necessary to authorize the execution and
delivery of and performance of its obligations under each of the Transaction Documents, and has
duly executed and delivered each of them.
4. The execution and delivery by the Company of the Transaction Documents, and the performance
by the Company of its obligations under the Transaction Documents, do not violate the Companys
Certificate of Incorporation or By-laws.
5. The execution and delivery by the Company of the Transaction Documents, and the performance
by the Company of its obligations under the Transaction Documents, do not, to our knowledge, (a)
breach or constitute a default of the Company under the express terms of the
Bank Credit Agreement or any agreement or instrument listed as an exhibit to the Companys
most recent annual report on Form 10-K or to any quarterly report on Form 10-Q filed after such
-2-
10-K, or (b) result in a lien on any property of the Company pursuant to the express terms of any
such agreement or instrument.
6. The execution and delivery by the Company of the Transaction Documents, and the performance
by the Company of its obligations under the Transaction Documents, do not violate North Carolina
Business Corporation Act or any applicable statute, rule, or regulation of the State of North
Carolina or the United States.
7. The execution and delivery by the Company of the Transaction Documents, and the performance
by the Company of its obligations under the Transaction Documents, do not require the Company to
obtain any approval by or make any filing with any governmental authority under any statute, rule,
or regulation of the State of North Carolina or the United States, other than approvals and filings
previously obtained or made and in full force and effect.
In addition, we advise you that we were not engaged by the Company to give substantive
attention, in the form of legal consultation or representation, to any action or proceeding pending
before any court, governmental agency or arbitrator, or overtly threatened in writing, against the
Company that seeks to enjoin the performance of the Transaction Documents or the consummation of
the transactions thereunder.
We express no opinion with respect to any matter involving financial information or relating
to compliance with financial covenants or financial requirements.
In rendering our opinion that the Company validly existing we have relied solely upon a
certificate of existence regarding the Company from the Secretary of State of the State of North
Carolina dated December 1, 2010. We are furnishing this opinion letter to you solely in connection
with the Transaction. You may not rely on this opinion letter in any other connection, and it may
not be furnished to or relied upon by any other person for any purpose, without our specific prior
written consent except that (i) successors and assigns of each Noteholder and other transferees of
the Notes may rely on this opinion as if they were an original addressee and (ii) you may provide
copies of this opinion letter to (a) potential transferees, successors and assigns, (ii) any
governmental or regulatory agency (including, without limitation, the NAIC) having jurisdiction
over you and (c) any court of law or other tribunal in connection with any matter relating to the
Transaction Documents. The foregoing opinions are rendered as of the date of this letter. We
assume no obligation to update or supplement any of our opinions to reflect any changes of law or
fact that may occur.
Yours truly,
-3-
Form of Opinion of Special Counsel
to the Noteholders
December 7, 2010
|
|
|
|
|
To:
|
The Parties listed on Schedule A
to the Note Purchase Agreement
(defined below)
|
|
|
|
|
Re:
|
$100,000,000.00 5.72% Senior Notes
|
|
|
|
|
Due June 12, 2017
|
|
|
|
|
of
|
|
|
|
|
Lance, Inc.
|
|
|
|
|
|
|
|
Ladies and Gentlemen:
We have acted as your special counsel in connection with the execution and delivery of (i) the
Amended and Restated Note Purchase Agreement dated as of December 7, 2010 (the
Note Purchase
Agreement
), by and among Lance, Inc., a North Carolina corporation (the
Company
), Snyders of
Hanover Manufacturing, Inc., a Pennsylvania corporation (
Snyders Manufacturing
), Snyders of
Hanover, Inc., a Pennsylvania corporation (
Snyders
), and each of you, respectively, and (ii)
$100,000,000.00 aggregate principal amount of the Companys amended and restated 5.72% Senior
Notes, due June
12, 2017
(the
Notes
).
In that connection, we have examined the following:
(a) the Note Purchase Agreement;
(b) the Notes delivered on the date hereof and registered in the names of the
purchasers and in the amounts set forth in Schedule A to the Note Purchase Agreement;
(c) the opinion of K&L Gates LLP, counsel to the Company, dated the date hereof and
delivered in response to Section 4.4(a) of the Note Purchase Agreement; and
(d) such other documents and matters of law as we have deemed necessary to give the
opinions hereinafter expressed.
Exhibit
4.4(b)
(to Amended and Restated Note Purchase Agreement)
The documents referenced in clauses (a) and (b) above are hereinafter referred to collectively
as the
Financing Documents
.
We believe that the opinion referred to in clause (c) above is satisfactory in scope and form
and that you and we are justified in relying thereon. As to all matters of fact we have relied
solely upon (a) the representations and warranties of the Company and you set forth in the Note
Purchase Agreement and (b) the certificates of public officials and of the officers of the Company,
and have assumed, without independent inquiry, the accuracy of such representations, warranties and
certificates.
We have assumed the genuineness of all signatures, the conformity to the originals of all
documents reviewed by us as copies, the authenticity and completeness of all original documents
reviewed by us in original or copy form, the legal competence of each individual executing any
document and that each Person executing the Financing Documents validly exists and has the power
and authority to enter into and perform its obligations under the Financing Documents. We have
assumed that the Financing Documents have been duly authorized by all parties, have been duly
executed and delivered by all parties and, as to Persons other than the Company, are binding upon
and enforceable against such Persons. We have also assumed that the execution, delivery and
performance of the Financing Documents do not violate or result in any breach of the charter
documents of the Company or any agreement to which the Company is subject or require any
authorization, consent, approval, exemption or other action by, or notice to or filing with, any
Governmental Authority (excluding the federal laws of the United States or the laws of the State of
New York) which has not been obtained.
For purposes of this opinion, we have made such examination of law as we have deemed
necessary. This opinion is limited solely to (a) the internal substantive laws of the State of New
York as applied by courts located in the State of New York without regard to conflicts of law
principles and (b) the federal laws of the United States of America, and we express no opinion as
to the laws of any other jurisdiction. In addition, we note that the Financing Documents contain
provisions stating that they are to be governed by the laws of the State of New York. Except to
the extent that such provisions are made enforceable by New York General Obligations Law Section
5-1401 as applied by New York state courts or federal courts applying New York choice of law rules,
no opinion is given herein as to any such provisions, or otherwise as to the choice of law or
internal substantive rules of law that any court or other tribunal may apply to the transactions
contemplated by the Financing Documents.
The opinions set forth below are further subject to the following exceptions, qualifications
and assumptions:
(a) the enforcement of any obligations of any person or entity under the Financing
Documents or otherwise may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other laws and
rules of law affecting the enforcement generally of creditors rights and remedies
(including such as may deny giving effect to waivers of debtors or guarantors rights), and
general principles of equity including any implied duty of good faith and fair dealing
-2-
(regardless of whether the application of such principles is considered in a proceeding in
equity or at law);
(b) we express no opinion as to the availability of any specific or equitable relief of
any kind;
(c) we express no opinions as to any anti-fraud securities, blue sky, anti-trust or
tax laws of any jurisdiction; and
(d) we express no opinion as to the enforceability of any particular provision of any
of the Financing Documents relating to (i) waivers of rights to object to jurisdiction or
venue, consents to jurisdiction or venue, or waivers of rights to (or methods of) service of
process, (ii) waivers of an applicable defenses, setoffs, recoupments, or counterclaims,
(iii) waivers or variations of legal provisions or rights which are not capable of waiver or
variation under applicable law, or (iv) exculpation or exoneration clauses, contribution
provisions and clauses relating to releases or waivers of immaterial claims or rights.
Based upon the foregoing, we are of the opinion that:
1. The Note Purchase Agreement constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms.
2. The Notes constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
3. The issuance and delivery of the Notes under the circumstances contemplated by the
Note Purchase Agreement do not, under existing law, require the registration of the Notes
under the Securities Act of 1933, as amended, or the qualification of an indenture under the
Trust Indenture Act of 1939, as amended.
This opinion is being furnished only to you in connection with the purchase of the Notes
pursuant to the Note Purchase Agreement, and is not to be used, quoted, relied upon or otherwise
referred to by any other Person or for any other purposes without our prior written consent, except
that this opinion may be reviewed, but not relied upon, by legal and regulatory authorities and may
be relied upon as of the date hereof by subsequent holders of the Notes who are Institutional
Investors and who have acquired the Notes in accordance with the terms of the Note Purchase
Agreement as if such subsequent holders were original addressees hereon. This opinion is based on
factual matters in existence as of the date hereof and laws and regulations in effect on the date
hereof, and we assume no obligation to revise or supplement this opinion
should such factual matters change or should such laws or regulations be changed by
legislative or regulatory action, judicial decision or otherwise.
Respectfully submitted,
-3-
[Form of]
Subsidiary Guaranty Agreement
Dated as of [
]
from
The Subsidiary Guarantors Named Herein
for the benefit of
The Holders of the Notes
of
Lance, Inc.
2
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2
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After the filing and effectiveness of an amendment, if any, to the Companys Articles
of Incorporation changing the Companys name from Lance, Inc. to Snyders-Lance, Inc.,
references in this form of instrument to Lance, Inc. shall be deemed a reference to Snyders-Lance, Inc.
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Exhibit 9.7
(to Amended and Restated Note Purchase Agreement)
Table of Contents
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Section
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Heading
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Page
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Section 1.
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Guaranty
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1
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Section 2.
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Representations and Warranties
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2
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Section 3.
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Subsidiary Guarantors Obligations Unconditional
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4
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Section 4.
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Full Recourse Obligations; Pari Passu Ranking
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10
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Section 5.
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Waiver
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10
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Section 6.
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Waiver of Subrogation
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11
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Section 7.
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Subordination
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11
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Section 8.
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Effect of Bankruptcy Proceedings, Etc
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12
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Section 9.
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Term of Guaranty
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12
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Section 10.
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Contribution
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13
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Section 11.
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Limitation of Liability
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13
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Section 12.
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Negative Pledge
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14
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Section 13.
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Supplemental Agreement
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14
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Section 14.
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Definitions and Terms Generally
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14
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Section 15.
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Notices
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15
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Section 16.
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Amendments, Etc
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15
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Section 17.
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Consent to Jurisdiction; Service of Process
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16
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Section
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Heading
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Section 18.
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Waiver of Jury Trial
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16
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Section 19.
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Survival
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17
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Section 20.
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Severability
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17
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Section 21.
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Successors and Assigns
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Section 22.
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Table of Contents; Headings
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Section 23.
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Counterparts
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17
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Section 24.
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Governing Law
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Section 25.
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Covenant Compliance
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18
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Section 26.
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Appointment of Process Agent
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18
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Exhibit A Form of Supplemental Agreement
-ii-
Subsidiary Guaranty Agreement
, dated as of [
] (this
Guaranty
),
from each of [
], and such Subsidiaries as shall become parties hereto in accordance
with Section 13 hereof (each a
Subsidiary Guarantor
and collectively the
Subsidiary
Guarantors
), for the benefit of the holders from time to time of the Notes (as defined below)
(such holders, together with their successors, assigns or any other future holder of the Notes, the
Holders
). Capitalized terms used herein are defined in Section 14 hereof or the Note Purchase
Agreement referred to below.
Whereas
,
Lance, Inc.
, a company incorporated under the laws of North
Carolina (the
Company
)
3
, has authorized the issue of $100,000,000 aggregate principal
amount of its 5.72% Senior Notes due June 12, 2017 (the
Notes
, such term shall also include any
such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement
(as defined below)), pursuant to the Amended and Restated Note Purchase Agreement, dated as of
December 7, 2010 (as amended, modified or supplemented from time to time, the
Note Purchase
Agreement
) among the Company, Snyders of Hanover Manufacturing, Inc., Snyders of Hanover, Inc.
and the Noteholders named therein.
Whereas
, each of the Subsidiary Guarantors is a Subsidiary of the Company.
Whereas
, pursuant to the terms of Section 9.7 of the Note Purchase Agreement, the
Company has agreed that certain of its Subsidiaries will guarantee the obligations of the Company
under the Notes and the Note Purchase Agreement.
Whereas
, the Subsidiary Guarantors are part of an affiliated group of business
entities with the Company and each has received substantial direct and indirect benefit from the
issue of the Notes to the original Holders and each views the issuance by the Company of the Notes
to the original Holders as in the best interests of such Subsidiary Guarantor.
Now, Therefore
, in consideration of the premises, each of the Subsidiary Guarantors,
intending to be legally bound, hereby agrees for the benefit of the Holders, as follows:
Section 1.
Guaranty.
Each Subsidiary Guarantor, together with all other Subsidiary Guarantor
s,
hereby
absolutely, unconditionally and irrevocably guarantees, jointly and severally, as a primary obligor
and not merely as a surety, to each Holder and its successors and assigns, the full and punctual
payment and performance when due, whether at stated maturity, by acceleration or otherwise, of the
principal of and Make-Whole Amount and interest on (including, without
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3
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After the filing and effectiveness of an amendment, if any, to the Companys
Articles of Incorporation changing the Companys name from Lance, Inc. to Snyders-Lance, Inc.,
references in this form of instrument to Lance, Inc. shall be deemed a reference to
Snyders-Lance, Inc.
|
limitation, interest,
whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy,
or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Company)
the Notes and all other amounts under the Note Purchase Agreement and all other obligations,
agreements and covenants of the Company now or hereafter existing under the Note Purchase Agreement
whether for principal, Make-Whole Amount, interest (including, without limitation, interest,
whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy,
or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Company),
indemnification payments, expenses (including reasonable attorneys fees and expenses) or
otherwise, and all reasonable costs and expenses, if any, incurred by any Holder in connection with
enforcing any rights under this Guaranty (all such obligations being the
Guaranteed Obligations
),
and agrees to pay any and all reasonable expenses incurred by each Holder in enforcing this
Guaranty;
provided
that, notwithstanding anything contained herein or in the Note Purchase
Agreement to the contrary, the maximum liability of each Subsidiary Guarantor hereunder and under
the Note Purchase Agreement shall in no event exceed such Guarantors Maximum Guaranteed Amount,
and
provided further,
each Subsidiary Guarantor shall be unconditionally required to pay all
amounts demanded of it hereunder prior to any determination of such Maximum Guaranteed Amount and
the recipient of such payment, if so required by a final non-appealable order of a court of
competent jurisdiction, shall then be liable for the refund of any excess amounts. If any such
rebate or refund is ever required, all other Subsidiary Guarantors (and the Company) shall be fully
liable for the repayment thereof to the maximum extent allowed by applicable law. Each Subsidiary
Guarantor agrees that the Guaranteed Obligations may at any time and from to time exceed the
Maximum Guaranteed Amount of such Subsidiary Guarantor without impairing this Guaranty or affecting
the rights and remedies of the Holders hereunder.
Notwithstanding any stay, injunction or other prohibition preventing such action against the
Company, if for any reason whatsoever the Company shall fail or be unable to duly, punctually and
fully perform and (in the case of the payment of Guaranteed Obligations) pay such amounts as and
when the same shall become due and (in the case of the payment of Guaranteed Obligations) payable
or to perform or comply with any other Guaranteed Obligation, whether or not such failure or
inability shall constitute an Event of Default under the Note Purchase Agreement or the Notes,
each Subsidiary Guarantor will forthwith (in the case of the payment of Guaranteed Obligations) pay
or cause to be paid such amounts to the Holders, in lawful money of the United States of America,
at the place specified in the Note Purchase Agreement, or perform or comply with such Guaranteed
Obligations or cause such Guaranteed Obligations to be performed or complied with, (in the case of
the payment of Guaranteed Obligations) together with interest (in the amounts and to the extent
required under such Notes) on any amount due and owing.
Section 2.
Representations and Warranties.
Each Subsidiary Guarantor hereby represents and warrants as follows:
(a) All representations and warranties contained in the Note Purchase Agreement that
relate to such Subsidiary Guarantor are true and correct in all respects.
E-9.7-2
(b) Such Subsidiary Guarantor acknowledges that, any default in the due observance or
performance by such Subsidiary Guarantor of any covenant, condition or agreement contained
herein (if, after the running of any applicable notice and opportunity to cure periods
provided in the Note Purchase Agreement, such default or event of default remains uncured)
shall constitute an Event of Default.
(c) There are no conditions precedent to the effectiveness of this Guaranty that have
not been satisfied or expressly waived.
(d) Such Subsidiary Guarantor has, independently and without reliance upon the Holders
and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Guaranty. Such Subsidiary Guarantor has
investigated fully the benefits and advantages which will be derived by it from execution of
this Guaranty, and the Board of Directors of such Subsidiary Guarantor has decided that a
direct and/or an indirect benefit will accrue to such Subsidiary Guarantor by reason of the
execution of this Guaranty.
(e) (i) This Guaranty is not given with actual intent to hinder, delay or defraud any
Person to which such Subsidiary Guarantor is or will become, on or after the date hereof,
indebted; (ii) such Subsidiary Guarantor has received at least a reasonably equivalent value
in exchange for the giving of this Guaranty; (iii) such Subsidiary Guarantor is not
insolvent on the date hereof and will not become insolvent as a result of the giving of this
Guaranty; (iv) such Subsidiary Guarantor is not engaged in a business or transaction, nor is
about to engage in a business or transaction, for which any property remaining with such
Subsidiary Guarantor constitutes an unreasonably small amount of capital; and (v) such
Subsidiary Guarantor does not intend to incur debts that will be beyond such Subsidiary
Guarantors ability to pay as such debts mature.
(f) Each Subsidiary Guarantor is a corporation or other legal entity duly organized and
validly existing under the laws of its state of organization, and has the requisite power,
authority and legal right under the laws of its state of organization to conduct its
business as presently conducted and to execute, deliver and perform its obligations under
this Guaranty.
(g) The execution, delivery and performance of this Guaranty have been duly authorized
by all necessary corporate or other organizational action on the part of each Subsidiary
Guarantor, and does not require any consent or approval of, or the giving of notice to, or
the taking of any other action in respect of, any stockholder or trustee or holder of any
indebtedness or obligations of such Subsidiary Guarantor. This Guaranty constitutes a
legal, valid and binding obligation of each Subsidiary Guarantor, enforceable against such
Subsidiary Guarantor in accordance with its terms, except that such enforceability is
subject to any limitations arising from bankruptcy, insolvency, liquidation, moratorium,
reorganization and other similar laws of general application relating to or affecting the
rights of creditors or pledgees and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
E-9.7-3
(h) The execution, delivery and performance of this Guaranty does not and will not
conflict with or result in any violation of or default under any provision of the Articles
of Incorporation or by-laws or partnership agreement, as the case may be, of any Subsidiary
Guarantor, or any indenture, mortgage, deed of trust, instrument, law, rule or regulation
binding on any Subsidiary Guarantor or to which a Subsidiary Guarantor is a party.
(i) The execution, delivery and performance of this Guaranty does not and will not
result in violation of any judgment or order applicable to any Subsidiary Guarantor or
result in the creation or imposition of any Lien on any of the properties or revenues of any
Subsidiary Guarantor pursuant to any requirement of law or any indenture, mortgage, deed of
trust or other instrument to which such Subsidiary Guarantor is a party.
(j) The execution, delivery and performance of this Guaranty do not and will not
conflict with and do not and will not require any consent, approval or authorization of, or
registration or filing with, any governmental authority or agency of the state of
organization of any Subsidiary Guarantor or of the United States or any State.
(k) There are no pending or, to the knowledge of any Subsidiary Guarantor, threatened
actions or proceedings against or affecting such Subsidiary Guarantor or any of its
properties by or before any court or administrative agency or arbiter that would adversely
affect the ability of such Subsidiary Guarantor to perform its obligations hereunder or call
into question the validity or enforceability of this Guaranty.
(l) Each Subsidiary Guarantors obligations under this Guaranty are at least
pari passu
in right of payment with all other unsecured claims against the general creditors of such
Subsidiary Guarantor.
(m) No Subsidiary Guarantor is in breach of or default under or with respect to any
instrument, document or agreement binding upon such Subsidiary Guarantor which breach or
default could reasonably be expected to have a material adverse effect on its ability to
perform hereunder or result in the creation of a Lien on any property of such Subsidiary
Guarantor other than Liens permitted under Section 10.5 of the Note Purchase Agreement.
Each Subsidiary Guarantor is in compliance with all applicable requirements of law except
such non-compliance as would not have a material adverse effect on its ability to perform
hereunder.
Section 3.
Subsidiary Guarantors Obligations Unconditional
.
(a) This Guaranty shall constitute a guarantee of payment, performance and compliance and not
of collection, and each Subsidiary Guarantor specifically agrees that it shall not be necessary,
and that such Subsidiary Guarantor shall not be entitled to require, before or as a condition of
enforcing the liability of such Subsidiary Guarantor under this Guaranty or requiring payment or
performance of the Guaranteed Obligations by any Subsidiary Guarantor hereunder, or at any time
thereafter, that any Holder: (a) file suit or proceed to obtain or assert a claim for
E-9.7-4
personal judgment against the Company or any other Person that may be liable for or with respect to any
Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed
Obligation from the Company or any other Person that may be liable for or with respect to such
Guaranteed Obligation, except for the making of the demands, when appropriate, described in
Section 1; (c) foreclose against, or seek to realize upon security now or hereafter existing for
such Guaranteed Obligations; (d) except to the extent set forth in Section 1, exercise or assert
any other right or remedy to which such Holder is or may be entitled in connection with any
Guaranteed Obligation or any security or other guaranty therefor; or (e) assert or file any claim
against the assets of the Company or any other Person liable for any Guaranteed Obligation. Each
Subsidiary Guarantor agrees that this Guaranty shall be continuing, and that the Guaranteed
Obligations will be paid and performed in accordance with their terms and the terms of this
Guaranty, and are the primary, absolute and unconditional obligations of such Subsidiary Guarantor,
irrespective of the value, genuineness, validity, legality, regularity or enforceability or lack
thereof of any part of the Guaranteed Obligations or any agreement or instrument relating to the
Guaranteed Obligations or this Guaranty, or the existence of any indemnities with respect to the
existence of any other guarantee of or security for any of the Guaranteed Obligations, or any
substitution, release or exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense
of a surety or guarantor, it being the intent of this Section 3 that the obligations of each
Subsidiary Guarantor hereunder shall be irrevocable, primary, absolute and unconditional under any
and all circumstances.
(b) Each Subsidiary Guarantor hereby expressly waives notice of acceptance of and reliance
upon this Guaranty, diligence, presentment, demand of payment or performance, protest and all other
notices (except as otherwise provided for in Section 1) whatsoever, any requirement that the
Holders exhaust any right, power or remedy or proceed against the Company or against any other
Person under any other guarantee of, or security for, or any other agreement, regarding any of the
Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, subject solely to the
requirement of making demands under Section 1, the occurrence of any event or other circumstance
that might otherwise vary the risk of the Company or such Subsidiary Guarantor or constitute a
defense (legal or equitable) available to, or a discharge of, or a counterclaim or right of set-off
by, the Company or such Subsidiary Guarantor (other than the full and indefeasible due payment and
performance of the Guaranteed Obligations), shall not affect the liability of the Subsidiary
Guarantor hereunder.
(c) The obligations of each Subsidiary Guarantor under this Guaranty are not subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment or
defense based upon any claim such Subsidiary Guarantor or any other Person may have against the
Company, any Holder or any other Person, and shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any circumstances or condition
whatsoever (whether or not such Subsidiary Guarantor or the Company shall have any knowledge or
notice thereof), including:
(i) any renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument
E-9.7-5
executed in
connection therewith, or any contract or understanding with the Company, the Holders, or any
of them, or any other Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by any Holder to the Company or any other Person liable on the Guaranteed Obligations,
or the failure of any Holder to assert any claim or demand or to exercise any right or
remedy against the Company or any other Person under the provisions of the Note Purchase
Agreement, the Notes or otherwise; or any rescission, waiver, amendment or modification of,
or any release from any of the terms or provisions of, the Note Purchase Agreement, the
Notes, any guarantee or any other agreement;
(iii) the insolvency, bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of the Company or any other Person at any time
liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of
the Company or any other such Person, or any change, restructuring or termination of the
structure or existence of the Company or any other such Person, or any sale, lease or
transfer of any or all of the assets of the Company or any other such Person, or any change
in the shareholders, partners, or members of the Company or any other such Person; or any
default, failure or delay, willful or otherwise, in the performance of the Guaranteed
Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed
Obligations, or any part thereof, exceed the amount permitted by law, the act of creating
the Guaranteed Obligations or any part is
ultra vires
, the officers or representatives
executing the documents or otherwise creating the Guaranteed Obligations acted in excess of
their authority, the Guaranteed Obligations violate applicable usury laws, the Company or
any other Person has valid defenses, claims or offsets (whether at law, in equity or by
agreement) which render the Guaranteed Obligations wholly or partially uncollectible from
the Company or any other Person, the creation, performance or repayment of the Guaranteed
Obligations (or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with the
Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not
genuine or authentic;
(v) any full or partial release of the liability of the Company on the Guaranteed
Obligations or any part thereof, of any co-guarantors, or of any other Person now or
hereafter liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or
any part thereof, it being recognized, acknowledged and agreed by each Subsidiary Guarantor
that such Subsidiary Guarantor may be required to pay the
E-9.7-6
Guaranteed Obligations in full
without assistance or support of any other Person, and such Subsidiary Guarantor has not
been induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that any parties other than the Company will be liable to perform
the Guaranteed Obligations, or that the Holders will look to other parties to perform the
Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including negligent, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of any Holder or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the Guaranteed
Obligations shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and agreed by
each Subsidiary Guarantor that such Subsidiary Guarantor is not entering into this Guaranty
in reliance on, or in contemplation of the benefits of, the validity, enforceability,
collectibility or value of any of the collateral;
(x) any payment by the Company to any Holder being held to constitute a preference
under any Fraudulent Conveyance Law, or for any reason any Holder being required to refund
such payment or pay such amount to the Company or someone else;
(xi) any other action taken or omitted to be taken with respect to the Guaranteed
Obligations, or the security and collateral therefor, whether or not such action or omission
prejudices such Subsidiary Guarantor or increases the likelihood that such Subsidiary
Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof,
it being the unambiguous and unequivocal intention of such Subsidiary Guarantor that it
shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated,
and whether or not otherwise or particularly described herein, except for the full and final
payment and satisfaction of the Guaranteed Obligations in cash;
(xii) the fact that all or any of the Guaranteed Obligations cease to exist by
operation of law, including by way of a discharge, limitation or tolling thereof under
applicable bankruptcy laws;
E-9.7-7
(xiii) any default, failure or delay, willful or otherwise, in the performance by the
Company or any Subsidiary Guarantor or any other Person of any obligations of any kind or
character whatsoever under the Note Purchase Agreement, this Guaranty or any other
agreement;
(xiv) any merger or consolidation of the Company or any Subsidiary Guarantor or any
other Person into or with any other Person or any sale, lease, transfer or other disposition
of any of the assets of the Company, any Subsidiary Guarantor or any other Person to any
other Person, or any change in the ownership of any shares or partnership interests of the
Company, any Subsidiary Guarantor or any other Person, or any change in the relationship
between the Company and any Subsidiary Guarantor or any termination of any such
relationship;
(xv) in respect of the Company, any Subsidiary Guarantor or any other Person, any
change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to
the Company, any Subsidiary Guarantor or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods, droughts,
embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to obtain materials, action of any
Federal or state regulatory body or agency, change of law or any other causes affecting
performance, or any other
force majeure
, whether or not beyond the control of the Company,
any Subsidiary Guarantor or any other Person and whether or not of the kind hereinbefore
specified; or
(xvi) any other occurrence, circumstance, or event whatsoever, whether similar or
dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance
which might otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit recourse against such
Subsidiary Guarantor;
provided
that the specific enumeration of the above-mentioned acts, failures or omissions shall not
be deemed to exclude any other acts, failures or omissions, though not specifically mentioned
above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations
of each Subsidiary Guarantor shall be absolute and unconditional and shall not be discharged,
impaired or varied except by the payment and performance of all obligations of the Company under
the Note Purchase Agreement and the Notes in accordance with their respective terms as each may be
amended or modified from time to time. Without limiting the foregoing, it is understood that
repeated and successive demands may be made and recoveries may be had hereunder as and when, from
time to time, the Company or any Subsidiary Guarantor shall default under or in respect of the
terms of the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect
of any given default or defaults by the Company or any Subsidiary Guarantor under the Note Purchase
Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every
subsequent default. All waivers herein contained shall be without prejudice to the Holders at
their respective options to proceed against the Company, any Subsidiary Guarantor or other Person,
whether by separate action or by joinder.
E-9.7-8
(d) Each Subsidiary Guarantor hereby consents and agrees that any Holder or Holders from time
to time, with or without any further notice to or assent from any other Subsidiary Guarantor may,
without in any manner affecting the liability of any Subsidiary Guarantor under this Guaranty, and
upon such terms and conditions as any such Holder or Holders may deem advisable:
(i) extend in whole or in part (by renewal or otherwise), modify, change, compromise,
release or extend the duration of the time for the performance or payment of any debt,
liability or obligation of the Company or any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligations of the Company on the
Note Purchase Agreement or the Notes, or waive any Default or Event of Default with respect
thereto, or waive, modify, amend or change any provision of any other agreement or waive
this Guaranty; or
(ii) sell, release, surrender, modify, impair, exchange or substitute any and all
property, of any nature and from whomsoever received, held by, or for the benefit of, any
such Holder as direct or indirect security for the payment or performance of any debt,
liability or obligation of the Company, any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligation of the Company on the
Note Purchase Agreement or the Notes; or
(iii) settle, adjust or compromise any claim of the Company or any Subsidiary Guarantor
against any other Person secondarily or otherwise liable for any debt, liability or
obligation of the Company on the Note Purchase Agreement or the Notes.
Each Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale,
release, waiver, surrender, exchange, modification, amendment, impairment, substitution,
settlement, adjustment or compromise and that the same shall be binding upon it, and hereby waives,
to the fullest extent permitted by law, any and all defenses, counterclaims or offsets which it
might or could have by reason thereof, it being understood that such Subsidiary Guarantor shall at
all times be bound by this Guaranty and remain liable hereunder.
(e) All rights of any Holder may be transferred or assigned at any time in accordance with the
Note Purchase Agreement and shall be considered to be transferred or assigned at any time or from
time to time upon the transfer of such Note in accordance with the Note Purchase Agreement without
the consent of or notice to the Subsidiary Guarantors under this Guaranty.
(f) No Holder shall be under any obligation: (i) to marshal any assets in favor of the
Subsidiary Guarantors or in payment of any or all of the liabilities of the Company or any
Subsidiary Guarantor under or in respect of the Notes or the obligations of the Company and the
Subsidiary Guarantors under the Note Purchase Agreement or (ii) to pursue any other remedy that the
Subsidiary Guarantors may or may not be able to pursue themselves and that may lighten the
Subsidiary Guarantors burden, any right to which each Subsidiary Guarantor hereby expressly
waives.
E-9.7-9
Section 4.
Full Recourse Obligations; Pari Passu Ranking.
Subject to the Maximum Guaranteed Amount specified above, the obligations of each Subsidiary
Guarantor set forth herein constitute the full recourse obligations of such Subsidiary Guarantor
enforceable against it to the full extent of all its assets and properties.
The respective obligations under this Guaranty of the Subsidiary Guarantors are and at all
times shall remain direct and unsecured obligations of the Subsidiary Guarantors ranking
pari passu
as against the assets of the Subsidiary Guarantors without any preference among themselves and
pari
passu
with all other present and future unsecured Indebtedness (actual or contingent) of the
Subsidiary Guarantors which is not expressed to be subordinate or junior in rank to any other
unsecured Indebtedness of the Subsidiary Guarantors.
Section 5.
Waiver.
Each Subsidiary Guarantor unconditionally waives, to the extent permitted by applicable law:
(a) notice of any of the matters referred to in Section 3;
(b) notice to such Subsidiary Guarantor of the incurrence of any of the Guaranteed
Obligations, notice to such Subsidiary Guarantor of any breach or default by the Company or
such Subsidiary Guarantor with respect to any of the Guaranteed Obligations or any other
notice that may be required, by statute, rule of law or otherwise, to preserve any rights of
any Holder against such Subsidiary Guarantor;
(c) presentment to the Company or such Subsidiary Guarantor or of payment from the
Company or such Subsidiary Guarantor with respect to any Note or other Guaranteed Obligation
or protest for nonpayment or dishonor;
(d) any right to the enforcement, assertion, exercise or exhaustion by any Holder of
any right, power, privilege or remedy conferred in any Note, the Note Purchase Agreement or
otherwise;
(e) any requirement of diligence on the part of any Holder;
(f) any requirement to mitigate the damages resulting from any default under the Notes
or the Note Purchase Agreement;
(g) any notice of any sale, transfer or other disposition of any right, title to or
interest in any Note or other Guaranteed Obligation by any Holder, assignee or participant
thereof, or in the Note Purchase Agreement;
(h) any release of any Subsidiary Guarantor from its obligations hereunder resulting
from any loss by it of its rights of subrogation hereunder; and
E-9.7-10
(i) any other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or which might otherwise
limit recourse against such Subsidiary Guarantor.
Section 6.
Waiver of Subrogation.
Notwithstanding any payment or payments made by any Subsidiary Guarantor hereunder, or any
application by any Holder of any security or of any credits or claims, no Subsidiary Guarantor will
assert or exercise any rights of any Holder or of such Subsidiary Guarantor against the Company to
recover the amount of any payment made by such Subsidiary Guarantor to any Holder hereunder by way
of any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and such
Subsidiary Guarantor shall not have any right of recourse to or any claim against assets or
property of the Company, in each case unless and until the Guaranteed Obligations have been paid in
full. Until such time (but not thereafter), each Subsidiary Guarantor hereby expressly waives any
right to exercise any claim, right or remedy which such Subsidiary Guarantor may now have or
hereafter acquire against the Company or any other Subsidiary Guarantor that arises under the
Notes, the Note Purchase Agreement or from the performance by any Subsidiary Guarantor of the
guaranty hereunder including any claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification or participation in any claim, right or remedy of any Holder against
the Company or any Subsidiary Guarantor, or any security that any Holder now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise. If any amount shall be paid to a Subsidiary Guarantor by the
Company or another Subsidiary Guarantor after payment in full of the Guaranteed Obligations, and
all or any portion of the Guaranteed Obligations shall thereafter be reinstated in whole or in part
and any Holder is required to repay any sums received by any of them in payment of the Guaranteed
Obligations, this Guaranty shall be automatically reinstated and such amount shall be held in trust
for the benefit of the Holders and shall forthwith be paid to the Holders to be credited and
applied to the Guaranteed Obligations, whether matured or unmatured. The provisions of this
paragraph shall survive the termination of this Guaranty, and any satisfaction and discharge of the
Company by virtue of any payment, court order or any Federal or state law.
Section 7.
Subordination.
If any Subsidiary Guarantor becomes the holder of any indebtedness payable by the Company or
another Subsidiary Guarantor, each Subsidiary Guarantor hereby subordinates all indebtedness owing
to it from the Company or such other Subsidiary Guarantor to all indebtedness of the Company to the
Holders, and agrees that, during the continuance of any Event of Default, it shall not accept any
payment on the same until payment in full of the Guaranteed Obligations and shall in no
circumstance whatsoever attempt to set-off or reduce any obligations hereunder because of such
indebtedness. If any amount shall nevertheless be paid in violation of the foregoing to a
Subsidiary Guarantor by the Company or another Subsidiary Guarantor prior to payment in full of the
Guaranteed Obligations, such amount shall be held in trust for the benefit of the Holders and shall
forthwith be paid to the Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured.
E-9.7-11
Section 8.
Effect of Bankruptcy Proceedings, Etc.
(a) If after receipt of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of, the Guaranteed Obligations, any Holder is for any
reason compelled to surrender or voluntarily surrenders (under circumstances in which it believes
it could reasonably be expected to be so compelled if it did not voluntarily surrender), such
payment or proceeds to any Person (i) because such payment or application of proceeds is or may be
avoided, invalidated, declared fraudulent, set aside, determined to be void or voidable as a
preference, fraudulent conveyance, fraudulent transfer, impermissible set-off or a diversion of
trust funds or (ii) for any other similar reason, including, without limitation, (x) any judgment,
decree or order of any court or administrative body having jurisdiction over any Holder or any of
their respective properties or (y) any settlement or compromise of any such claim effected by any
Holder with any such claimant (including the Company), then the Guaranteed Obligations or part
thereof intended to be satisfied shall be reinstated and continue, and this Guaranty shall continue
in full force as if such payment or proceeds had not been received, notwithstanding any revocation
thereof or the cancellation of any Note or any other instrument evidencing any Guaranteed
Obligations or otherwise, and the Subsidiary Guarantors, jointly and severally, shall be liable to
pay the Holders, and hereby do indemnify the Holders and hold them harmless for, the amount of such
payment or proceeds so surrendered and all expenses (including reasonable attorneys fees, court
costs and expenses attributable thereto) incurred by any Holder in defense of any claim made
against any of them that any payment or proceeds received by any Holder in respect of all or part
of the Guaranteed Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Guaranty, and any satisfaction and discharge of the Company by virtue of
any payment, court order or any Federal or state law.
(b) If an event permitting the acceleration of the maturity of any of the Guaranteed
Obligations shall at any time have occurred and be continuing, and such acceleration shall at such
time be prevented by reason of the pendency against the Company or any other Person of any case or
proceeding contemplated by Section 8(a) hereof, then, for the purpose of defining the obligation of
any Subsidiary Guarantor under this Guaranty, the maturity of the principal amount of the
Guaranteed Obligations shall be deemed to have been accelerated with the same effect as if an
acceleration had occurred in accordance with the terms of such Guaranteed Obligations, and such
Subsidiary Guarantor shall forthwith pay such principal amount, all accrued and unpaid interest
thereon, and all other Guaranteed Obligations, due or that would have become due but for such case
or proceeding, without further notice or demand.
Section 9.
Term of Guaranty.
This Guaranty and all guarantees, covenants and agreements of each Subsidiary Guarantor
contained herein shall continue in full force and effect and shall not be discharged until such
time as all of the principal of and interest on the Notes, the other Guaranteed Obligations and
other independent payment obligations of such Subsidiary Guarantor under this Guaranty shall be
paid in cash and performed in full, and all of the agreements of each of the other Subsidiary
Guarantors hereunder shall be duly paid in cash and performed in full,
provided
,
however
, that a
Subsidiary Guarantor may be released from this Guaranty at an earlier time in
E-9.7-12
accordance with and
subject to the terms and conditions of Section 9.7(b) of the Note Purchase Agreement.
Section 10.
Contribution.
In order to provide for just and equitable contribution among the Subsidiary Guarantors, each
Subsidiary Guarantor agrees that, to the extent any Subsidiary Guarantor makes any payment
hereunder on any date which, when added to all preceding payments made by such Subsidiary Guarantor
hereunder, would result in the aggregate payments by such Subsidiary Guarantor hereunder exceeding
its Percentage (as defined below) of all payments then or theretofore made by all Subsidiary
Guarantors hereunder, such Subsidiary Guarantor shall have a right of contribution against each
other Subsidiary Guarantor whose aggregate payments then or theretofore made hereunder are less
than its Percentage of all payments by all Subsidiary Guarantors then or theretofore made
hereunder, in an amount such that, after giving effect to any such contribution rights, each
Subsidiary Guarantor will have paid only its Percentage of all payments by all Subsidiary
Guarantors then or theretofore made hereunder. A Subsidiary Guarantors
Percentage
on any date
shall mean the percentage obtained by dividing (a) the Adjusted Net Assets of such Subsidiary
Guarantor on such date by (b) the sum of the Adjusted Net Assets of all Subsidiary Guarantors on
such date.
Adjusted Net Assets
means, for each Subsidiary Guarantor on any date, the lesser of
(i) the amount by which the fair value of the property of such Subsidiary Guarantor exceeds the
total amount of liabilities, including contingent liabilities, but excluding liabilities under this
Guaranty, of such Subsidiary Guarantor on such date and (ii) the amount by which the present fair
salable value of the assets of such Subsidiary Guarantor on such date exceeds the amount that will
be required to pay the probable liability of such Subsidiary Guarantor on its debts, excluding debt
in respect of this Guaranty, as they become absolute and matured.
Section 11.
Limitation of Liability.
Each Subsidiary Guarantor hereby confirms that it is the intention of such Subsidiary
Guarantor that the guarantee by such Subsidiary Guarantor pursuant to this Guaranty not constitute
a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar applicable Federal or
state law (all such statutes and laws are collectively referred to as
Fraudulent Conveyance
Laws
). To effectuate the foregoing intention, each Subsidiary Guarantor hereby irrevocably agrees
that the obligations of such Subsidiary Guarantor under this Guaranty shall be limited to the
amount as will, after giving effect to all rights to receive any collections from or payments by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor pursuant to Section 10 hereof, result in the obligations of such Subsidiary Guarantor
under this Guaranty not constituting such a fraudulent transfer or conveyance. In the event that
the liability of any Subsidiary Guarantor hereunder is limited pursuant to this Section 11 to an
amount that is less than the total amount of the Guaranteed Obligations, then it is understood and
agreed that the portion of the Guaranteed Obligations for which such Subsidiary Guarantor is liable
hereunder shall be the last portion of the Guaranteed Obligations to be repaid.
E-9.7-13
Section 12.
Negative Pledge.
Except as permitted under Section 10.5 of the Note Purchase Agreement, no Subsidiary Guarantor
will create any Lien on its assets to any other Person during the pendency of this Guaranty except
for Liens permitted by Section 10.5 of the Note Purchase Agreement.
Section 13.
Supplemental Agreement.
Upon execution and delivery by a Subsidiary of a Supplemental Agreement substantially in the
form of Exhibit A hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally named as a Subsidiary Guarantor herein. The execution and
delivery of any such instrument shall not require the consent of any other Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Guaranty.
Section 14.
Definitions and Terms Generally.
(a) Unless otherwise defined herein, capitalized terms defined in the Note Purchase Agreement
are used herein as defined therein. In addition, the following terms shall have the following
meanings.
Adjusted Net Assets
has the meaning specified in Section 10 hereof.
Fraudulent Conveyance Laws
has the meaning specified in Section 11 hereof.
Guaranteed Obligations
has the meaning specified in Section 1 hereof.
Guaranty
has the meaning specified in the introduction hereto.
Holders
has the meaning specified in the introduction hereto.
Maximum Guaranteed Amount
shall mean, for each Subsidiary Guarantor, the maximum amount
which any Subsidiary Guarantor could pay under this Guaranty without having such payment set aside
as a fraudulent transfer or conveyance or similar action under Fraudulent Conveyance Law.
Note Purchase Agreement
has the meanings specified in the Recitals hereto.
Notes
has the meanings specified in the Recitals hereto.
Percentage
has the meaning specified in Section 10 hereof.
Subsidiary Guarantor
has the meaning specified in the introduction hereto.
E-9.7-14
(b) 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. All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules
to, this Guaranty unless the context shall otherwise require.
Section 15.
Notices.
All notices under the terms and provisions hereof shall be in writing (with charges prepaid),
and shall be delivered or sent by hand, by telecopy, by express courier service or by registered or
certified mail, return receipt requested, postage prepaid, addressed,
(a) if to any Holder, at the address set forth in the Note Purchase Agreement, or at
such other address as any such Holder shall from time to time designate to the Company,
(b) if to a Subsidiary Guarantor, at the address of such Subsidiary Guarantor set forth
on the signature pages hereto or at such other address as such Subsidiary Guarantor shall
from time to time designate in writing to each Holder.
A notice or communication shall be deemed to have been duly given and effective:
(a) when delivered (whether or not accepted), if personally delivered;
(b) five business days after being deposited in the mail, postage prepaid, if delivered
by first-class mail (whether or not accepted);
(c) when sent, if sent via facsimile;
(d) when delivered if sent by registered or certified mail (whether or not accepted);
and
(e) on the next Business Day if timely delivered by an overnight air courier, with
charges prepaid (whether or not accepted).
Section 16.
Amendments, Etc.
No amendment, alteration, modification or waiver of any term or provision of this Guaranty,
nor consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and consented to by the Required Holders
provided
,
however
,
that any amendment, alteration, modification or waiver of the terms and conditions contained in
Section 1 hereof shall require consent from all Holders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.
E-9.7-15
Section 17.
Consent to Jurisdiction; Service of Process.
(a) Each Subsidiary Guarantor irrevocably submits to the nonexclusive
in personam
jurisdiction
of any New York State or federal court sitting in New York City, over any suit, action or
proceeding arising out of or relating to this Guaranty or the Notes. To the fullest extent it may
effectively do so under applicable law, each Subsidiary Guarantor irrevocably waives and agrees not
to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the
in
personam
jurisdiction of any such court, any objection that it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) Each Subsidiary Guarantor agrees, to the fullest extent it may effectively do so under
applicable law, that a final judgment in any suit, action or proceeding of the nature referred to
in paragraph (a) of this Section 17 brought in any such court shall be conclusive and binding upon
such party, subject to rights of appeal and may be enforced in the courts of the United States of
America or the State of New York (or any other courts to the jurisdiction of which such party is or
may be subject) by a suit upon such judgment.
(c) Each Subsidiary Guarantor consents to process being served in any suit, action or
proceeding of the nature referred to in paragraph (a) of this Section 17 by mailing a copy thereof
by registered or certified mail, postage prepaid, return receipt requested, to the address of each
Subsidiary Guarantor specified in Section 15 or at such other address of which each Holder shall
then have been notified pursuant to said Section or to any agent for service of process appointed
pursuant to the provisions of Section 26. Each Subsidiary Guarantor agrees that such service upon
receipt (i) shall be deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the full extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to such party. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished by the United States
Postal Service or any reputable commercial delivery service.
(d) Nothing in this Section 17 shall affect the right of any Holder to serve process in any
manner permitted by law, or limit any right that any Holder may have to bring proceedings against
any Subsidiary Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful
manner a judgment obtained in one jurisdiction in any other jurisdiction.
Section 18.
Waiver of Jury Trial.
Each Subsidiary Guarantor and by its acceptance hereof each holder, to the fullest extent
permitted by applicable law, irrevocably and unconditionally waives the right to trial by jury in
any legal or equitable action, suit or proceeding arising out of or relating to this Guaranty or
the Note Purchase Agreement or any transaction contemplated hereby or thereby or the subject matter
of any of the foregoing.
E-9.7-16
Section 19.
Survival.
All warranties, representations and covenants made by each Subsidiary Guarantor herein or in
any written certificate or other instrument required to be delivered by it or on its behalf
hereunder or under the Note Purchase Agreement shall be considered to have been relied upon by the
Holders and shall survive the execution and delivery of this Guaranty, regardless of any
investigation made by any Holder or on such Holders behalf. All statements in any such
certificate or other instrument shall constitute warranties and representations by such Subsidiary
Guarantor hereunder.
Section 20.
Severability.
Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each Subsidiary Guarantor hereby waives
any provision of law that renders any provisions hereof prohibited or unenforceable in any respect.
Section 21.
Successors and Assigns.
The terms of this Guaranty shall be binding upon each Subsidiary Guarantor and its successors
and assigns and shall inure to the benefit of the Holders and their respective successors and
assigns.
Section 22.
Table of Contents; Headings.
The section and paragraph headings in this Guaranty and the table of contents are for
convenience of reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof, and all references herein to numbered sections, unless otherwise indicated, are
to sections in this Guaranty.
Section 23.
Counterparts.
This Guaranty may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
Section 24.
Governing Law.
This Guaranty shall in all respects be governed by, and construed and interpreted in
accordance with, the laws of the State of New York, without regard to the conflicts of laws
principles of such state.
E-9.7-17
Section 25.
Covenant Compliance.
Each Subsidiary Guarantor agrees to comply with each of the covenants contained herein and in
the Note Purchase Agreement that imposes or purports to impose, by reference to such Subsidiary
Guarantor, express or otherwise (including, without limitation, by way of the defined term
Subsidiary or Subsidiaries), through agreements with the Company, restrictions or obligations on
such Subsidiary Guarantor.
Section 26.
Appointment of Process Agent.
Each Subsidiary Guarantor hereby designates and appoints [
] (or any
successor corporation), at its office at [
], as its authorized agent to
accept and acknowledge on behalf of each Subsidiary Guarantor service of any and all process which
may be served in any such action, suit or proceeding with respect to any matter as to which it has
submitted to jurisdiction as set forth in Section 17, and it agrees that service upon such
authorized agent shall be deemed in every respect service of process upon a Subsidiary Guarantor or
its respective successors or assigns, and, to the extent permitted by applicable law, shall be
taken and held to be valid personal service upon it. Such designation and appointment shall be
irrevocable. Each Subsidiary Guarantor represents and warrants that [
] has
agreed to act as such agent for service of process on behalf of each Subsidiary Guarantor. Each
Subsidiary Guarantor will take all action, including the filing of any and all documents and
instruments, as may be necessary to continue in full force and effect the designation and
appointment as such agent of [
] or any successor corporation or such other
corporation as shall be satisfactory to the Required Holders, so that each Subsidiary Guarantor
shall at all times have an agent for service of process for the above purposes in the County of
New York, State of New York.
In Witness Whereof,
each party hereto has caused this Guaranty to be duly executed as
of the date first above written.
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[Subsidiary Guarantor]
|
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By:
|
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Name:
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Title:
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[Address]
E-9.7-18
Exhibit A
Form of Supplemental Agreement
Supplemental Agreement
dated as of
, ____ from
, a
corporation (the
New Subsidiary
), for the benefit of the Holders (as defined in the Guaranty
referred to below). Capitalized terms used herein without definition shall have the respective
meanings ascribed thereto in the Subsidiary Guaranty Agreement, dated as of
, 20____ (the
Guaranty
), from: (i) [names of guarantors] ( ) such other Subsidiaries (as defined below) as
shall become parties thereto in accordance therewith, for the benefit of the Holders (as such term
is defined in such Guaranty).
Whereas
,
Lance, Inc.
, a company incorporated under the laws of North
Carolina (the
Company
)
4
, has authorized the issue of $100,000,000 aggregate principal
amount of its 5.72% Senior Notes due June 12, 2017 (the
Notes
, such term shall also include any
such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement
(as defined below)), pursuant to the Amended and Restated Note Purchase Agreement, dated as of
December [7], 2010 (as amended, modified or supplemented from time to time, the
Note Purchase
Agreement
) among the Company, Snyders of Hanover Manufacturing, Inc., Snyders of Hanover, Inc.
and the Noteholders named therein.
Whereas
, the New Subsidiary is a Subsidiary of the Company.
Whereas,
certain existing Subsidiaries of the Company have entered into the Guaranty.
Whereas
, the Note Purchase Agreement requires that certain Subsidiaries become party
to the Guaranty (as a Subsidiary Guarantor).
Whereas
, the New Subsidiary is part of the affiliated group of business entities with
the Company and has received substantial direct and indirect benefit from the issue of the Notes to
the original Holders and views the issuance by the Company of the Notes to the original Holders as
in the best interests of the New Subsidiary.
Whereas
, the Guaranty specifies that additional Subsidiaries may become Subsidiary
Guarantors under such Guaranty by execution and delivery of an instrument in the form of this
Agreement. The undersigned Subsidiary is executing this Agreement in accordance with the
requirements of the Note Purchase Agreement in order to become a Subsidiary Guarantor under the
Guaranty as consideration for the Notes previously issued.
Now, Therefore
, the New Subsidiary Guarantor agrees as follows:
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4
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After the filing and effectiveness of an amendment, if any, to the Companys Articles of Incorporation changing
the Companys name from Lance, Inc. to Snyders-Lance, Inc., references in this form of instrument
to Lance, Inc. shall be deemed a reference to Snyders Lance, Inc.
|
Section 1. Guaranty
. In accordance with Section 13 of the Guaranty, the New Subsidiary by its
signature hereto shall become a Subsidiary Guarantor under such Guaranty with the same force and
effect as if originally named therein as a Subsidiary Guarantor and the New Subsidiary hereby
(a) agrees to all the terms and provisions of such Guaranty applicable to it as a Subsidiary
Guarantor thereunder, (b) represents and warrants that the representations and warranties made by
it as a Subsidiary Guarantor are true and correct on and as of the date hereof with the same effect
as though made on and as of the date hereof, (c) acknowledges receipt of a copy of and agrees to be
obligated and bound by the terms of such Guaranty, and (d) agrees that each reference to a
Subsidiary Guarantor
in such Guaranty shall be deemed to include the New Subsidiary.
Section 2. Enforceability
. The New Subsidiary hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered by the New Subsidiary and constitutes a
legal, valid and binding obligation of the New Subsidiary enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the applicability of creditors rights generally and by
equitable principles of general applicability (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 3. Effect on Guaranty
. Except as expressly supplemented hereby, the Guaranty shall
continue in full force and effect.
Section 4.
Governing Law
.
This Agreement shall in all respects be governed by,
and construed and interpreted in accordance with, the laws of the State of New York, without regard
to the conflicts of laws principles of such state
.
Section 5. Savings Clause
. To the fullest extent permitted under applicable law, in the event
any one or more of the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect with respect to the New Subsidiary, no party hereto shall be required
to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, and the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. The parties shall endeavor in good-faith
negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 6. Notices
. All communications to the New Subsidiary shall be given to it at the
address or telecopy number set forth under its signature hereto.
In Witness Whereof
, the New Subsidiary has duly executed this Agreement as of the day
and year first above written.
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[
New Subsidiary
]
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By:
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Name:
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Title:
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Address:
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Telecopy:
Exhibit 10.1
Execution Version
CREDIT AGREEMENT
dated as of December 7, 2010
among
LANCE, INC.
(name to be changed to SNYDERS-LANCE, INC.),
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrative Agent and
Issuing Lender,
JPMORGAN CHASE BANK, N.A.
and
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Co-Syndication Agents,
BRANCH BANKING AND TRUST COMPANY
and
WELLS FARGO BANK, N.A.,
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
J.P. MORGAN SECURITIES LLC
and
MANUFACTURERS AND TRADERS TRUST COMPANY
Co-Lead Arrangers and Joint Book Managers
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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1.1 Certain Defined Terms
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1
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1.2 Other Interpretive Provisions
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21
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1.3 Accounting Principles
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21
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1.4 Letter of Credit Amounts
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22
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ARTICLE II THE CREDITS
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22
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2.1 Amounts and Terms of Commitments
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22
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2.2 Loan Accounts
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22
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2.3 Procedure for Borrowings
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23
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2.4 Conversion and Continuation Elections for Borrowings
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23
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2.5 Voluntary Termination or Reduction of Commitments
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25
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2.6 Optional Prepayments
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25
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2.7 Repayment
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25
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2.8 Interest
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25
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2.9 Fees
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26
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2.10 Computation of Fees and Interest
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26
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2.11 Payments by the Company
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27
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2.12 Payments by the Lenders to the Administrative Agent
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28
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2.13 Sharing of Payments
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29
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2.14 Increase in Aggregate Commitment
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29
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2.15 Certain Credit Support Events
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30
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2.17 Defaulting Lenders
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31
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2.21
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31
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ARTICLE III THE LETTERS OF CREDIT
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33
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3.1 The Letter of Credit Subfacility
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33
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3.2 Issuance, Amendment and Renewal of Letters of Credit
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35
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3.3 Risk Participations, Drawings and Reimbursements
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37
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3.4 Repayment of Participations
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39
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3.5 Role of the Issuing Lenders
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39
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3.6 Obligations Absolute
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40
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-i-
TABLE OF CONTENTS
(continued)
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Page
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3.7 Letter of Credit Fees
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41
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3.8 Applicability of ISP
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42
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3.9 Conflict with L/C Related Documents
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42
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ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
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42
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4.1 Taxes
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42
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4.2 Illegality
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43
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4.3 Increased Costs and Reduction of Return
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44
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4.4 Funding Losses
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45
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4.5 Inability to Determine Rates
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45
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4.6 Certificates of Lenders
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45
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4.7 Substitution of Lenders
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46
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4.8 Survival
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46
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ARTICLE V CONDITIONS PRECEDENT
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46
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5.1 Conditions to Initial Credit Extensions
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46
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5.2 Conditions to All Credit Extensions
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48
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ARTICLE VI REPRESENTATIONS AND WARRANTIES
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49
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6.1 Corporate Existence and Power
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49
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6.2 Corporate Authorization; No Contravention
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49
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6.3 Governmental Authorization
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50
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6.4 Binding Effect
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50
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6.5 Litigation
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50
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6.6 No Default
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50
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6.7 ERISA Compliance; Canadian Plans
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50
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6.8 Use of Proceeds; Margin Regulations
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51
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6.9 Title to Properties
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51
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6.10 Taxes
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51
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6.11 Financial Condition
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51
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6.12 Environmental Matters
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52
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6.13 Regulated Entities
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52
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6.14 No Burdensome Restrictions
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52
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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6.15
Copyrights, Patents, Trademarks and Licenses, etc.
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52
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6.16 Subsidiaries
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52
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6.17 Insurance
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52
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6.18 Swap Obligations
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53
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6.19 Full Disclosure
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53
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ARTICLE VII AFFIRMATIVE COVENANTS
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53
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7.1 Financial Statements
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53
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7.2 Certificates; Other Information
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54
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7.3 Notices
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55
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7.4
Preservation of Corporate Existence, Etc.
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56
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7.5 Maintenance of Property
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56
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7.6 Insurance
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56
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7.7 Payment of Obligations
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57
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7.8 Compliance with Laws
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57
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7.9 Compliance with ERISA; Canadian Plans
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57
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7.10 Inspection of Property and Books and Records
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57
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7.11 Environmental Laws
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57
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7.12 Use of Proceeds
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57
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ARTICLE VIII NEGATIVE COVENANTS
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58
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8.1 Financial Condition Covenants
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58
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8.2 Limitation on Liens
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58
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8.3 Disposition of Assets
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59
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8.4 Consolidations and Mergers
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60
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8.5 Loans and Investments
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60
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8.6 Limitation on Subsidiary Indebtedness
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61
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8.7 Transactions with Affiliates
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62
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8.8 Use of Proceeds
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62
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8.9 Swap Contracts
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62
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8.10 Restricted Payments
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62
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8.11 ERISA
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63
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-iii-
TABLE OF CONTENTS
(continued)
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Page
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8.12 Change in Business
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63
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8.13 Accounting Changes
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63
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8.14 Burdensome Agreements
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63
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ARTICLE IX EVENTS OF DEFAULT
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63
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9.1 Event of Default
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63
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9.2 Remedies
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65
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9.3 Rights Not Exclusive
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66
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ARTICLE X THE ADMINISTRATIVE AGENT
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66
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10.1 Appointment and Authorization
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66
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10.2 Delegation of Duties
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67
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10.3 Exculpatory Provisions
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67
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10.4 Reliance by the Administrative Agent
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68
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10.5 Notice of Default
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68
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10.6 Credit Decision
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69
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|
10.7 Agent in Individual Capacity
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69
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|
10.8 Successor Agent
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70
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|
10.9 Withholding Tax
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70
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|
10.10 Other Agents
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|
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71
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ARTICLE XI MISCELLANEOUS
|
|
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72
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11.1 Amendments and Waivers
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72
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11.2 Notices; Effectiveness; Electronic Communications
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73
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11.3 No Waiver; Cumulative Remedies
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75
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|
11.4 Expenses; Indemnity; Damage Waiver
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75
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11.5 Payments Set Aside
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|
77
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|
11.6 Successors and Assigns
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77
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|
11.7 Treatment of Certain Information; Confidentiality
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81
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11.8 Survival of Representations and Warranties
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81
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11.9 Set-off
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82
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11.10
Notification of Addresses, Lending Offices, Etc.
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82
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11.11 Counterparts; Integration; Effectiveness
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82
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-iv-
TABLE OF CONTENTS
(continued)
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Page
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11.12 Severability
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83
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11.13 No Third Parties Benefited
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83
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11.14 Governing Law and Jurisdiction
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83
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11.15 Waiver of Jury Trial
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83
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11.16 No Advisory or Fiduciary Responsibility
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84
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11.17 USA PATRIOT Act Notice
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|
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84
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11.18 Judgment
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84
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11.19 Entire Agreement
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85
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11.20 Waiver of Notice under Existing Credit Agreement
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85
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-v-
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SCHEDULES
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Schedule 2.1
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|
Commitments and Pro Rata Shares
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Schedule 5.1
|
|
Snyders Merger
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Schedule 6.5
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Litigation
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Schedule 6.7
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ERISA
|
Schedule 6.11
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Financial Condition
|
Schedule 6.12
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Environmental Matters
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Schedule 6.16
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Subsidiaries of Lance, Inc.
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Schedule 8.2
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Permitted Liens
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Schedule 11.2
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|
Eurodollar and Domestic Lending Offices, Addresses for Notices
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EXHIBITS
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Exhibit A
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|
Form of Notice of Borrowing
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Exhibit B
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Form of Notice of Conversion/Continuation
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Exhibit C
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Form of Compliance Certificate
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Exhibit D
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Form of Assignment and Acceptance
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Exhibit E
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Form of Note
|
-vi-
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 7, 2010, among LANCE, INC., a North
Carolina corporation (name to be changed to Snyders-Lance, Inc.) (the
Company
), the
several financial institutions from time to time party to this Agreement (collectively the
Lenders
; individually each a
Lender
), JPMORGAN CHASE BANK, N.A. and
MANUFACTURERS AND TRADERS TRUST COMPANY, as co-syndication agents, and BANK OF AMERICA, NATIONAL
ASSOCIATION, as letter of credit issuing lender and as administrative agent.
WITNESSETH:
WHEREAS, the Company has requested that the Lenders provide a revolving credit facility,
including a letter of credit subfacility, and the Lenders are willing to do so on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1
Certain Defined Terms
. The following terms have the following meanings:
Acquired EBITDA
means, with respect to any Person or division (or similar
business unit) acquired by the Company in an Acquisition during any Computation Period, the
total of (a) the consolidated net income from continuing operations of such Person or
division (or similar business unit) for the period from the first day of such Computation
Period to the date of such acquisition plus (b) to the extent deducted in determining such
consolidated net income (and without duplication), interest expense (whether paid or accrued
and including imputed interest expense in respect of capital lease obligations), income
taxes, depreciation and amortization, all calculated on a basis approved by the
Administrative Agent minus (c) to the extent included in such consolidated net income, any
income tax refunds.
Acquisition
means any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division of a Person,
(b) the acquisition of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or amalgamation or any other combination with
another Person (other than a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity or, in the case of an amalgamation, the resulting
corporation has provided an assumption agreement and all other assurances as the
Administrative Agent may reasonably require.
Administrative Agent
means Bank of America in its capacity as agent for the
Lenders hereunder, and any successor thereto in such capacity arising under
Section
10.8
.
1
Administrative Agents Payment Office
means the address for payments set forth
on
Schedule 11.2
or such other address as the Administrative Agent may from time to
time specify.
Administrative Questionnaire
means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate
means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the management and
policies of the other Person, whether through the ownership of voting securities or
membership interests, by contract or otherwise.
Agent Parties
has the meaning specified in
Section 11.2
.
Agent-Related Persons
means Bank of America and any successor to Bank of
America as Administrative Agent arising under
Section 10.8
and any successor to Bank
of America as an Issuing Lender hereunder, together with its Related Parties.
Aggregate Commitment
means at any time an amount equal to the aggregate amount
of the Commitments of all Lenders. The initial amount of the Aggregate Commitment is
$265,000,000.
Agreement
means this Credit Agreement.
Applicable Law
means, with reference to any Person, all laws (foreign or
domestic), ordinances and treaties and all judgments, decrees, injunctions, writs and orders
of any court, arbitrator or Governmental Authority, and all rules and regulations of any
Governmental Authority applicable to such Person.
Applicable Margin
means the applicable rate per annum set forth in the table
below opposite the applicable Pricing Total Debt to EBITDA Ratio:
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Pricing
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Applicable Margin for
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Applicable Margin
|
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Total Debt
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Eurodollar Rate Loan and
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for
|
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to EBITDA Ratio
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|
L/C Fee Rate
|
|
|
Base Rate Loans
|
|
Less than or equal
to 1.00 to 1
|
|
|
1.20
|
%
|
|
|
0.20
|
%
|
Greater than 1.00 to 1
but less than
or equal to 1.50 to 1
|
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|
1.30
|
%
|
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|
0.30
|
%
|
Greater than 1.50 to 1
but less than
or equal to 2.00 to 1
|
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|
1.50
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%
|
|
|
0.50
|
%
|
Greater than 2.00 to 1
but less than
or equal to 2.75 to 1
|
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1.70
|
%
|
|
|
0.70
|
%
|
Greater than 2.75
to 1
|
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2.15
|
%
|
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1.15
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%
|
2
Initially, the Applicable Margin shall be 1.50% for Eurodollar Rate Loans and the L/C Fee
Rate and 0.50% for Base Rate Loans. The Applicable Margin shall be adjusted, to the extent
applicable, 46 days (or, in the case of the last fiscal quarter of any year, 101 days) after
the end of each fiscal quarter (or, if earlier, 10 days following delivery by the Company of
the financial statements required by
subsection 7.1(a)
or
7.1(b)
, as
applicable, and the related Compliance Certificate required by
subsection 7.2(a)
for
such fiscal quarter), based on the Pricing Total Debt to EBITDA Ratio as of the last day of
such fiscal quarter;
it being understood
that if the Company fails to deliver the
financial statements required by
subsection 7.1(a)
or
7.1(b)
, as applicable,
and the related Compliance Certificate required by
subsection 7.2(a)
by the 46th day
(or, if applicable, the 101st day) after any fiscal quarter, Applicable Margin shall be
2.15% for Eurodollar Rate Loans and the L/C Fee Rate and 1.15% for Base Rate Loans until
such financial statements and Compliance Certificate are delivered.
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.
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 11.6(b)
), and accepted by the Administrative Agent, in substantially the
form of
Exhibit D
or any other form approved by the Administrative Agent.
Attorney Costs
means and includes all reasonable fees and disbursements of any
law firm or other external counsel, provided that all attorneys fees shall be determined
without regard to any statutory presumption based on the standard hourly rates for such
attorneys and the actual hours expended.
Auto-Extension Letter of Credit
has the meaning specified in
Section
3.2
.
Bank of America
means Bank of America, N.A., and its successors.
3
Bankruptcy Code
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
§101,
et seq
.).
Base Rate
means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 0.50%, (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, and (c) the
one-month Eurodollar Rate plus 1.00%. The prime rate is a rate set by Bank of America
based upon various factors, including Bank of Americas 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 the prime
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 Loan
means a Loan that bears interest based on the Base Rate.
BBA LIBOR
has the meaning specified in the definition of Eurodollar Base
Rate.
Borrower Materials
has the meaning specified in
Section 7.2
Borrowing
means a borrowing hereunder consisting of Loans of the same Type made
to the Company on the same day by one or more Lenders under
Article II
and, other
than in the case of Base Rate Loans, having the same Interest Period.
Borrowing Date
means any date on which a Borrowing occurs under
Section
2.3
.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina or New York, New York are authorized or
required by law to close and, if the applicable Business Day relates to any Eurodollar Rate
Loan, means such a day on which dealings are carried on in the London offshore dollar
interbank market.
Canadian Plan
means a pension plan established by any Canadian Subsidiary of
the Company for any of its employees which is not subject to ERISA.
Capital Adequacy Regulation
means any guideline, request or directive of any
central bank or other relevant Governmental Authority, or any other law, rule or regulation,
whether or not having the force of law, in each case, regarding capital adequacy of any bank
or of any corporation controlling a bank.
Cash Collateralize
means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lenders and
the Lenders, as collateral for the L/C Obligations (if and when required pursuant to
Section 3.7
or
9.2
)), cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent. Derivatives
of such term shall have corresponding meanings. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at the Administrative Agent or, with the
Administrative Agents consent, the applicable Issuing Lender.
4
Cash Equivalent Investments
means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by any agency
thereof to the extent such obligations are backed by the full faith and credit of
the United States), in each case maturing within one year from the date of
acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit
rating obtainable from S&P or Moodys;
(c) investments in certificates of deposit, banker s acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or offered
by, any domestic office of any Lender that has a long-term debt rating of at least
A- by S&P or A3 by Moodys; and
(d) money market funds at least 95% of the assets of which constitute Cash
Equivalent Investments of the kinds described in clauses (a) through (c) above.
Change of Control
means any of the following events:
(a) any Person or group (within the meaning of Rule 13d-5 of the SEC under
the Securities Exchange Act of 1934 as in effect on the date hereof) (other than
the Van Every Family and/or the Snyders Stockholder Group) shall become the
Beneficial Owner (as defined in Rule 13d-3 of the SEC under the Securities
Exchange Act of 1934 as in effect on the date hereof) of 30% or more of the
capital stock or other equity interests of the Company the holders of which are
entitled under ordinary circumstances (irrespective of whether at the time the
holders of such stock or other equity interests shall have or might have voting
power by reason of the happening of any contingency) to vote for the election of
the directors of the Company; or
(b) a majority of the members of the Board of Directors of the Company shall
cease to be Continuing Members.
Closing Date
the first date all the conditions precedent in
Section 5.1
are satisfied or waived in accordance with
Section 11.1
.
Code
means the U.S. Internal Revenue Code of 1986, and regulations promulgated
thereunder.
Commitment
means, as to each Lender, its obligation to (a) make Loans to the
Company pursuant to
Section 2.1
, and (b) purchase participations in L/C Obligations,
in an aggregate principal amount at any one time outstanding not to exceed the amount set
forth opposite such Lenders name on Schedule 2.1(b) under the caption Commitment
5
or opposite such caption 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.
Company
see the preamble to this Agreement.
Compliance Certificate
means a certificate substantially in the form of
Exhibit C
.
Computation Period
means any period of four consecutive fiscal quarters ending
on the last day of a fiscal quarter.
Contingent Obligation
means, as to any Person, without duplication, any direct
or indirect liability of such Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other obligation
(the primary obligations) of another Person (the primary obligor), including any
obligation of such Person (i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency or any balance
sheet item, level of income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary
obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each a
Guaranty Obligation
); (b) with
respect to any Surety Instrument issued for the account of such Person or as to which such
Person is otherwise liable for reimbursement of drawings or payments; or (c) in respect of
any Swap Contract. The amount of any Contingent Obligation shall (a) in the case of
Guaranty Obligations, be deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof, and (b) in
the case of other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
Continuing Member
means a member of the Board of Directors of the Company who
either (a) was a member of the Companys Board of Directors on the Closing Date or the
effective date of the Snyders Merger and has been such continuously thereafter or
(b) became a member of such Board of Directors after the Closing Date and whose election or
nomination for election was approved by a vote of the majority of the Continuing Members
then members of the Companys Board of Directors.
Contractual Obligation
means, as to any Person, any provision of any security
issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed
of trust or other document to which such Person is a party or by which it or any of its
property is bound.
6
Conversion/Continuation Date
means any date on which, under
Section
2.4
, the Company (a) converts Loans of one Type to the other Type or (b) continues
Eurodollar Rate Loans for a new Interest Period.
Credit Extension
means and includes (a) the making of any Loan hereunder and
(b) the Issuance of any Letter of Credit hereunder.
Defaulting Lender
means any Lender that, as determined by the Administrative
Agent (a) has failed to fund any portion of the Loans or participations in L/C Obligations
required to be funded by it hereunder within three Business Days of the date required to be
funded by it hereunder, unless such failure has been cured, (b) has notified the Company or
the Administrative Agent that it does not intend to comply with its funding obligations or
has made a public statement to that effect with respect to its funding obligations hereunder
or under other agreements in which it commits to extend credit, (c) has failed, within three
Business Days after request by the Administrative Agent, to confirm in a manner satisfactory
to the Administrative Agent that it will comply with its funding obligations, or (d) has, or
has a direct or indirect parent company that has, (i) been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or a custodian appointed for it, or (iii)
taken any action in furtherance of, or indicated its consent to, approval of or acquiescence
in any such proceeding or appointment;
provided
that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in
such Lender or any direct or indirect parent company thereof by a Governmental Authority.
Disposed EBITDA
means, with respect to any Person or division (or similar
business unit) sold or otherwise disposed of by the Company during any Computation Period,
the total of (a) the consolidated net income from continuing operations of such Person or
division (or similar business unit) for the period from the first day of such Computation
Period to the date of such sale or other disposition
plus
(b) to the extent deducted
in determining such consolidated net income (and without duplication), interest expense
(whether paid or accrued and including imputed interest expense in respect of capital lease
obligations), income taxes, depreciation and amortization, all calculated on a basis
approved by the Administrative Agent
minus
(c) to the extent included in such
consolidated net income, any income tax refunds.
Dollar
,
dollar
and
$
each means lawful money of the United
States.
EBIT
means, for any Computation Period, the Companys consolidated net income
from continuing operations for such period, plus, to the extent deducted in determining such
earnings, Interest Expense and income taxes, minus, to the extent included in determining
such earnings, any income tax refunds.
EBITDA
means, for any Computation Period, the Companys consolidated net income
from continuing operations for such period,
plus
, to the extent deducted in
determining such earnings, Interest Expense, income taxes, depreciation and
7
amortization,
minus
, to the extent included in determining such earnings, any income tax refunds,
plus
any Acquired EBITDA and any fees and expenses incurred in connection with any
Acquisition, any costs or charges to the Company and its Subsidiaries as a result of an
increase in value to the pre-acquisition historical amounts of accounts receivables,
inventories or any other current assets (a
write-up
), in each case to the extent
that such write-up is required by GAAP and occurs as a result of an Acquisition,
minus
any Disposed EBITDA,
plus
fees and expenses incurred in connection
with any disposition giving rise to Disposed EBITDA.
Effective Amount
means, with respect to any outstanding L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any Issuances
of Letters of Credit occurring on such date, any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letter of Credit or any reduction in the maximum
amount available for drawing under Letters of Credit taking effect on such date.
Eligible Assignee
means any Person that meets the requirements to be an
assignee under
Section 11.6(b)(iii)
,
(v)
and
(vi)
(subject to such
consents, if any, as may be required under
Section 11.6(b)(iii)
).
Environmental Claims
means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment.
Environmental Laws
means all federal, state or local laws, statutes, rules,
regulations, ordinances and codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental and human health matters.
ERISA
means the U.S. Employee Retirement Income Security Act of 1974, and the
regulations promulgated thereunder.
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 substantial cessation of operations which is treated as such a
withdrawal; (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 Pension 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
might reasonably be expected to
8
constitute 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 PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
Eurodollar Base Rate
means, for any Interest Period, 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 Dollar deposits (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 Eurodollar
Base Rate for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of the Eurodollar
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 Americas London Branch to major banks
in the London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest Period.
Eurodollar Rate
means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following
formula:
|
|
|
|
Eurodollar Rate =
|
|
Eurodollar Base Rate
|
|
|
|
1.00 Eurodollar Reserve Percentage
|
|
|
|
|
|
Eurodollar Rate Loan
means a Loan that bears interest based on the Eurodollar
Rate.
Eurodollar Reserve Percentage
means, for any day during any Interest Period,
the reserve percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations issued from
time to time by the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as Eurocurrency liabilities). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
Event of Default
means any of the events or circumstances specified in
Section 9.1
.
Existing Credit Agreement
means the Credit Agreement dated as of October 20,
2006 among the Company, Tamming Foods Ltd., the lenders party thereto and Bank of America,
as administrative agent, issuing lender and Canadian agent.
9
Existing Snyders Notes
means the $100,000,000 of 5.72% Senior Notes due June
12, 2017 issued by Snyders of Hanover Manufacturing, Inc. (Snyders Manufacturing)
pursuant to a Note Purchase Agreement dated as of June 12, 2007 among Snyders
Manufacturing, Snyders of Hanover, Inc., as parent guarantor, and each of the Purchasers
(as defined therein).
Facility Fee Rate
means the rate per annum set forth in the table below
opposite the applicable Pricing Total Debt to EBITDA Ratio:
|
|
|
|
|
Total Debt to
|
|
Facility
|
|
EBITDA Ratio
|
|
Fee Rate
|
|
Less than or equal
to 1.00 to 1
|
|
|
0.175
|
%
|
Greater than 1.00 to 1
but less than
or equal to 1.50 to 1
|
|
|
0.20
|
%
|
Greater than 1.50 to 1
but less than
or equal to 2.00 to 1
|
|
|
0.25
|
%
|
Greater than 2.00 to 1
but less than
or equal to 2.75 to 1
|
|
|
0.30
|
%
|
Greater than 2.75
to 1
|
|
|
0.35
|
%
|
Initially, the Facility Fee Rate shall be 0.25%. The Facility Fee Rate shall be adjusted,
to the extent applicable, 46 days (or, in the case of the last fiscal quarter of any year,
101 days) after the end of each fiscal quarter (or, if earlier, 10 days following delivery
by the Company of the financial statements required by
subsection 7.1(a)
or
7.1(b)
, as applicable, and the related Compliance Certificate required by
subsection 7.2(a)
for such fiscal quarter), based on the Pricing Total Debt to
EBITDA Ratio as of the last day of such fiscal quarter;
it being understood
that if
the Company fails to deliver the financial statements required by
subsection 7.1(a)
or
7.1(b)
, as applicable, and the related Compliance Certificate required by
subsection 7.2(a)
by the 46th day (or, if applicable, the 101st day) after any
fiscal quarter, the Facility Fee Rate shall be 0.35% until such financial statements and
Compliance Certificate are delivered.
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
10
Federal Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if 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.
Foreign Lender
means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
FRB
means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
Fronting Exposure
means, at any time there is a Defaulting Lender, such
Defaulting Lenders Pro Rata Share of the outstanding L/C Obligations other than L/C
Obligations as to which such Defaulting Lenders participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
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 activities.
Further Taxes
means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges (including net income
taxes and franchise taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to
Section 4.1
.
GAAP
means generally accepted accounting principles set forth from time to time
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 agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the circumstances
as of the date of determination.
Governmental Authority
means any applicable nation or government, any state,
provincial or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any corporation
or other entity owned or controlled, through stock or capital ownership or otherwise, by any
of the foregoing.
Guaranty Obligation
has the meaning specified in the definition of Contingent
Obligation.
11
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.
Honor Date
has the meaning specified in
subsection 3.3(b)
.
Indebtedness
of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money; (b) all obligations issued, undertaken or assumed by such
Person as the deferred purchase price of property or services (other than trade payables
entered into in the ordinary course of business on ordinary terms including Company credit
card debt); (c) all reimbursement or payment obligations of such Person with respect to
Surety Instruments; (d) all obligations of such Person evidenced by notes, bonds, debentures
or similar instruments; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as financing, in either
case with respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations of such Person with respect to
capital leases which should be recorded on a balance sheet of such Person in accordance with
GAAP; (g) all indebtedness of the types referred to in
clauses (a)
through
(f)
above secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness, provided that the amount of any such
Indebtedness shall be deemed to be the lesser of the face principal amount thereof and the
fair market value of the property subject to such Lien; and (h) all Guaranty Obligations of
such Person in respect of indebtedness or obligations of others. For all purposes of this
Agreement, the Indebtedness of any Person shall include all Indebtedness of any partnership
or joint venture in which such Person is a general partner or a joint venturer to the extent
of such Persons liability therefor;
provided
that to the extent that any such
indebtedness is expressly non-recourse to such Person it shall not be included as
Indebtedness.
Indemnitee
see
Section 11.4
.
Independent Auditor
see
subsection 7.1(a)
.
Information
has the meaning specified in
Section 11.7
.
Insolvency Proceeding
means, with respect to any Person, (a) any case, action
or proceeding with respect to such Person before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar arrangement in respect
of its creditors generally or any substantial portion of its creditors; in each case
undertaken under any Applicable Law, including the Bankruptcy Code.
12
Interest Coverage Ratio
means, for any Computation Period, the ratio of
(a) EBIT for such Computation Period, to (b) Interest Expense for such Computation Period.
Interest Expense
means for any period, the interest expense (whether paid or
accrued and including imputed interest expense in respect of capital lease obligations) of
the Company and its consolidated Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
Interest Payment Date
means, as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and, as to any Base Rate Loan, the last
Business Day of each calendar quarter,
provided
that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, each three-month anniversary of the first day of
such Interest Period also shall be an Interest Payment Date.
Interest Period
means, as to any Eurodollar Rate Loan, the period commencing on
the Borrowing Date of such Loan or on the Conversion/Continuation Date on which such Loan is
converted into or continued as a Eurodollar Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be;
provided
that:
(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the following Business Day unless, in the case of
a Eurodollar Rate Loan, the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period for a Eurodollar Rate Loan 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 for any Loan shall extend beyond the Termination Date.
IRS
means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
ISP
means, with respect to any Letter of Credit, the International Standby
Practices 1998 published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance).
Issuance Date
has the meaning specified in
subsection 3.1(a)
.
Issue
means, with respect to any Letter of Credit, to issue or to extend the
expiry of, or to renew or increase the amount of, such Letter of Credit; and the terms
Issued
,
Issuing
and
Issuance
have corresponding meanings.
Issuing Lender
means Bank of America in its capacity as issuer of one or more
Letters of Credit hereunder, together with (i) any replacement letter of credit issuer
13
arising under
subsection 10.1(b)
or
Section 10.8
and (ii) any other
Lender or any Affiliate of a Lender which the Administrative Agent and the Company have
approved in writing as an Issuing Lender hereunder.
L/C Advance
means each Lenders participation in any L/C Borrowing in
accordance with its Pro Rata Share.
L/C Amendment Application
means an application form for amendment of an
outstanding standby letter of credit as shall at any time be in use by the applicable
Issuing Lender, as such Issuing Lender shall request.
L/C Application
means an application form for issuance of a standby letter of
credit as shall at any time be in use by the applicable Issuing Lender, as such Issuing
Lender shall request.
L/C Borrowing
means an extension of credit resulting from a drawing under any
Letter of Credit which shall not have been reimbursed on the date when made nor converted
into a Borrowing of Loans under
subsection 3.3(d)
.
L/C Commitment
means the commitment of the Issuing Lenders to Issue, and the
commitment of the Lenders severally to participate in, Letters of Credit from time to time
Issued or outstanding under
Article III
in an aggregate amount not to exceed on any
date the lesser of $30,000,000 and the Aggregate Commitment; it being understood that the
L/C Commitment is a part of the Aggregate Commitment rather than a separate, independent
commitment.
L/C Fee Rate
means, at any time, the Applicable Margin; provided that upon
notice to the Company from the Administrative Agent (acting at the request or with the
consent of the Required Lenders) during the existence of any Event of Default, and for so
long as such Event of Default continues, such rate shall be increased by 2 percentage
points.
L/C Obligations
means at any time the sum of (a) the aggregate undrawn amount
of all Letters of Credit then outstanding, plus (b) the amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding L/C Borrowings.
L/C-Related Documents
means the Letters of Credit, the L/C Applications, the
L/C Amendment Applications and any other document relating to any Letter of Credit,
including any of the applicable Issuing Lenders standard form documents for letter of
credit issuances.
Lead Arranger
means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities LLC and Manufacturers and Traders Trust Company in its capacity as an
arranger of the facilities hereunder.
Lender
see the preamble to this Agreement. References to the Lenders shall
include each Issuing Lender in its capacity as such; for purposes of clarification only, to
the extent that any Issuing Lender may have any rights or obligations in addition to those
14
of the other Lenders due to its status as Issuing Lender, its status as such will be
specifically referenced.
Lending Office
means, as to any Lender, the office or offices of such Lender
specified as its Lending Office or Domestic Lending Office or Eurodollar Lending
Office, as the case may be, on
Schedule 11.2
, or such other office or offices as
such Lender may from time to time notify the Company and the Administrative Agent.
Letter of Credit
means any standby letter of credit Issued by an Issuing Lender
pursuant to
Article III
.
Lien
means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preferential arrangement of any kind or nature whatsoever in respect of any
property (including those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a capital lease, or any
financing lease having substantially the same economic effect as any of the foregoing, but
not including the interest of a lessor under an operating lease).
Loan
means an extension of credit by a Lender to the Company under
Article
II
or
Article III
in the form of a Loan, which may be a Base Rate Loan or a
Eurodollar Rate Loan (each a
Type
of Loan) or an L/C Advance.
Loan Documents
means this Agreement, any Notes and the L/C-Related Documents.
Margin Stock
means margin stock as such term is defined in Regulation T, U or
X of the FRB.
Material Acquisition
means an Acquisition involving consideration (excluding
stock of the Company) of more than $50,000,000.
Material Adverse Effect
means a material adverse change in, or a material
adverse effect upon, the operations, business, properties, assets, liabilities (actual or
contingent), or financial condition of the Company and its Subsidiaries taken as a whole.
Material Financial Obligations
means Indebtedness or Contingent Obligations of
the Company or any Subsidiary or obligations of the Company or any Subsidiary in respect of
any Securitization Transaction, in an aggregate principal amount (for all applicable
Indebtedness, Contingent Obligations and obligations in respect of Securitization
Transactions) equal to or greater than $20,000,000.
Moodys
means Moodys Investors Service, Inc., or any successor thereto.
Multiemployer Plan
means a multiemployer plan, within the meaning of Section
4001(a)(3) of ERISA, with respect to which the Company or any ERISA Affiliate may have any
liability.
15
Non-Extension Notice Date
has the meaning specified in
Section 3.2
.
Note
means a promissory note executed by the Company in favor of a Lender
pursuant to
Section 2.2(b)
, in substantially the form of
Exhibit E
.
Notice of Borrowing
means a notice in substantially the form of
Exhibit
A
.
Notice of Conversion/Continuation
means a notice in substantially the form of
Exhibit B
.
Obligations
means all advances, debts, liabilities, obligations, covenants and
duties arising under any Loan Document owing by the Company to any Lender, the
Administrative Agent or any other Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, or now existing
or hereafter arising.
Organization Documents
means (i) for any corporation, the certificate of
incorporation, the bylaws, any certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee thereof) of such
corporation, (ii) for any partnership or joint venture, the partnership or joint venture
agreement and any other organizational document of such entity, (iii) for any limited
liability company, the certificate or articles of organization, the operating agreement and
any other organizational document of such limited liability company, (iv) for any trust, the
declaration of trust, the trust agreement and any other organizational document of such
trust and (v) for any other entity, the document or agreement pursuant to which such entity
was formed and any other organizational document of such entity.
Other Taxes
means any present or future stamp, court or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery, performance, enforcement or registration of,
or otherwise with respect to, this Agreement or any other Loan Document.
Outstandings
means, with respect to any Lender, the aggregate principal amount
of all outstanding Loans made by such Lender to the Company plus such Lenders participation
in all L/C Obligations.
Participant
see
subSection 11.6(d)
.
PBGC
means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.
Pension Plan
means a pension plan (as defined in Section 3(2) of ERISA) subject
to Title IV of ERISA, other than a Multiemployer Plan, with respect to which the Company or
any ERISA Affiliate may have any liability.
Permitted Liens
see
Section 8.2
.
16
Permitted Swap Obligations
means all obligations (contingent or otherwise) of
the Company or any Subsidiary existing or arising under Swap Contracts, provided that such
obligations are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with (a) raw materials purchases,
(b) interest or currency exchange rates, (c) operating expenses or other anticipated
obligations of such Person, (d) other liabilities, commitments or assets held or reasonably
anticipated by such Person or (e) changes in the value of securities issued by such Person
in conjunction with a securities repurchase program not otherwise prohibited hereunder.
Person
means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
Plan
means an employee benefit plan (as defined in Section 3(3) of ERISA),
other than a Multiemployer Plan, with respect to which the Company or any ERISA Affiliate
may have any liability, and includes any Pension Plan.
Platform
has the meaning specified in
Section 7.2
.
Pricing Total Debt to EBITDA Ratio
means, for any Computation Period, the ratio
of (a) Total Indebtedness (net of unrestricted cash and unrestricted Cash Equivalent
Investments held by the Company and its Subsidiaries and excluding any undrawn amounts of
letters of credit issued) as of the last day of such Computation Period, to (b) EBITDA for
such Computation Period.
Pro Rata Share
means for any Lender at any time the proportion (expressed as a
decimal, rounded to the ninth decimal place) which such Lenders Commitment constitutes of
the Aggregate Commitment (or, after the Commitments have terminated, which (i) the principal
amount of such Lenders Loans
plus
(without duplication) the participation of such
Lender in (or in the case of an Issuing Lender, the unparticipated portion of) the Effective
Amount of all L/C Obligations constitutes of (ii) the aggregate principal amount of all
Loans
plus
(without duplication) the Effective Amount of all L/C Obligations).
Public Lender
has the meaning specified in
Section 7.2
.
Register
has the meaning specified in
Section 11.6
.
Related Parties
means, with respect to any Person, such Persons Affiliates and
the partners, directors, officers, employees, agents, trustees and advisors of such Person
and of such Persons Affiliates.
Reportable Event
means, any of the events set forth in Section 4043(b) of ERISA
or the regulations thereunder, other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations issued by the PBGC.
Required Lenders
means Lenders holding Pro Rata Shares aggregating more than
50%;
provided
that if and so long as any Lender fails to fund any Loan when required
by
17
Section 3.3
or a participation in an L/C Borrowing pursuant to
Section 3.3
, as the case may be, such Lenders Pro Rata Share shall be deemed for
purposes of this definition to be reduced by the percentage which the defaulted amount
constitutes of the Aggregate Commitment (or, if the Commitments have terminated, the Total
Outstandings), and the Pro Rata Share of the applicable Issuing Lender shall be deemed for
purposes of this definition to be increased by such percentage.
Requirement of Law
means, as to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
Responsible Officer
means the chief executive officer, the president or any
vice president of the Company, or any other officer having substantially the same authority
and responsibility; or, with respect to financial matters, the chief financial officer or
the treasurer of the Company, or any other officer having substantially the same authority
and responsibility.
Restricted Payment
has the meaning specified in
Section 8.10
.
S&P
means Standard & Poors Ratings Service, a division of The McGraw-Hill
Companies, Inc., or any successor thereto.
SEC
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
Securitization Transaction
means any sale, assignment or other transfer by the
Company or any Subsidiary of accounts receivable, lease receivables or other payment
obligations owing to the Company or any Subsidiary or any interest in any of the foregoing,
together in each case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or other property or claims
in favor of the Company or such Subsidiary supporting or securing payment by the obligor
thereon of, or otherwise related to, any such receivables.
Snyders
means Snyders of Hanover, Inc., a Pennsylvania corporation.
Snyders Merger
means the merger of Snyders into Lima Merger Corp., a wholly
owned subsidiary of the Company, pursuant to the Snyders Merger Agreement.
Snyders Merger Agreement
means the Agreement and Plan of Merger dated as of
July 21, 2010 among the Company, Lima Merger Corp. and Snyders, as amended by the First
Amendment to Agreement and Plan of Merger dated as of September 30, 2010.
Snyders Stockholder Group
means (i) the lineal descendants of Michael A.
Warehime, including adopted persons as well as biological descendants, (i) any spouse, widow
or widower of any such descendant and (iii) any trust, estate, custodian or other fiduciary
or similar account solely for the benefit of one or more individuals described in
clause
(i)
or
(ii)
above.
18
Subsidiary
of a Person means any corporation, association, partnership, limited
liability company, joint venture or other business entity of which more than 50% of the
voting stock, membership interests or other equity interests is owned or controlled directly
or indirectly by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires, references herein to a
Subsidiary refer to a Subsidiary of the Company.
Surety Instruments
means all letters of credit (including standby and
commercial), bankers acceptances, bank guaranties, shipside bonds, surety bonds and similar
instruments.
Swap Contract
means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond, note or bill option, interest
rate option, forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
Taxes
means any and all present or future taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar charges, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative Agent, franchise taxes
and taxes imposed on or measured by its net income or capital by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized or maintains a lending office.
Termination Date
means the earlier to occur of:
(a) December 7, 2015; and
(b) the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
Total Debt to EBITDA Ratio
means, for any Computation Period, the ratio of
(a) Total Indebtedness as of the last day of such Computation Period, to (b) EBITDA for such
Computation Period.
Total Indebtedness
means, at any time, all Indebtedness of the Company and its
Subsidiaries determined on a consolidated basis and to the extent not included in the
definition of Indebtedness, the aggregate outstanding investment or claim held at such time
by purchasers, assignees or other transferees of (or of interests in) receivables or other
rights to payment of the Company and its Subsidiaries in connection with any Securitization
Transaction (regardless of the accounting treatment of such Securitization Transaction).
Total Outstandings
means the combined Outstandings of all Lenders.
19
Type
has the meaning specified in the definition of Loan.
Unfunded Pension Liability
means the excess of a Pension Plans benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of such Plans
assets, determined in accordance with the assumptions used for funding such Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.
United States
and
U.S.
each means the United States of America.
Unmatured Event of Default
means any event or circumstance which, with the
giving of notice, the lapse of time or both, will (if not cured, waived or otherwise
remedied during such time) constitute an Event of Default.
Van Every Family
means (i) the lineal descendants of Salem A. Van Every, Sr.,
including adopted persons as well as biological descendants, (i) any spouse, widow or
widower of any such descendant and (iii) any trust, estate, custodian or other fiduciary or
similar account solely for the benefit of one or more individuals described in
clause
(i)
or
(ii)
.
Wholly-Owned Subsidiary
means any Subsidiary in which (other than directors
qualifying shares required by law) 100% of the capital stock of each class having ordinary
voting power, and 100% of the capital stock of every other class, or 100% of the membership
interests or other equity interests, as applicable, in each case, at the time as of which
any determination is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
20
1.2
Other Interpretive Provisions
.
(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.
(b) The words hereof, herein, hereunder and similar words refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(c) (i) The term documents includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however evidenced.
(ii) The term including is not limiting and means including without limitation.
(iii) 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.
(d) Unless otherwise expressly provided herein, (i) references to agreements (including this
Agreement) and other contractual instruments shall be deemed to include all subsequent amendments
and other modifications thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of reference only and
shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their terms. Unless otherwise
expressly provided herein, any reference to any action of the Administrative Agent, the Lenders or
the Required Lenders by way of consent, approval or waiver shall be deemed modified by the phrase
in its/their sole discretion.
(g) This Agreement and the other Loan Documents are the result of negotiations among and have
been reviewed by counsel to the Administrative Agent, the Company and the other parties, and are
the products of all parties. Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agents or Lenders involvement in their
preparation.
1.3
Accounting Principles
(a) Unless the context otherwise clearly requires, all accounting terms not expressly defined
herein shall be construed, and all financial computations required under this Agreement shall be
made, in accordance with GAAP, consistently applied;
provided
that if the
21
Company notifies the Administrative Agent that the Company wishes to amend any covenant in
Article VIII
to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Company that the Required Lenders wish to
amend
Article VIII
for such purpose), then the Companys compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Company and the Required Lenders.
(b) References herein to fiscal year and fiscal quarter refer to such fiscal periods of
the Company.
1.4
Letter of Credit Amounts
. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be 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 L/C-Related 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 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 CREDITS
2.1
Amounts and Terms of Commitments
. Each Lender severally agrees (and not jointly
or jointly and severally), on the terms and conditions set forth herein, to make Loans to the
Company from time to time on any Business Day during the period from the Closing Date to the
Termination Date, in an aggregate amount not to exceed at any time outstanding such Lenders
Commitment;
provided
,
however
, that, after giving effect to any Borrowing, the
Total Outstandings shall not exceed the Aggregate Commitment. Within the limits of each Lenders
Commitment, and subject to the other terms and conditions hereof, the Company may borrow under this
Section 2.1
, prepay under
Section 2.6
and reborrow under this
Section 2.1
.
2.2
Loan Accounts
. (a) The Loans made by each Lender and the Letters of Credit Issued
by each Issuing Lender shall be evidenced by one or more accounts or records maintained by such
Lender or Issuing Lender, as the case may be, in the ordinary course of business. The accounts or
records maintained by the Administrative Agent, each Issuing Lender and each Lender shall be
rebuttable presumptive evidence of the amount of the Loans made by the Lenders to the Company and
the Letters of Credit Issued for the account of the Company, and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Company hereunder to pay any amount owing with respect to the Loans or any
Letter of Credit.
(b) Upon the request of any Lender made through the Administrative Agent, the Loans made by
such Lender may be evidenced by a Note, instead of or in addition to loan accounts. Each such
Lender shall endorse on the schedules annexed to its Note the date, amount and maturity of each
Loan evidenced thereby and the amount of each payment of principal made by the Company with respect
thereto (or such Lender shall maintain such information in its own
22
records). Each such Lender is irrevocably authorized by the Company to endorse its Note and
each Lenders record shall be rebuttable presumptive evidence of the amount of the Loans evidenced
thereby, and the interest and payments thereon;
provided
,
however
, that the failure
of a Lender to make, or an error in making, a notation thereon or an entry therein with respect to
any Loan shall not limit or otherwise affect the obligations of the Company hereunder or under any
such Note to such Lender.
2.3
Procedure for Borrowings
. (a) Each Borrowing shall be made upon the Companys
irrevocable written notice delivered to the Administrative Agent in the form of a Notice of
Borrowing, which notice must be received by the Administrative Agent prior to (i) 11:00 a.m.
Charlotte time two Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Rate Loans, and (ii) 11:00 a.m. Charlotte time on the requested Borrowing Date, in the case of Base
Rate Loans, specifying:
(A) the amount of such Borrowing, which shall be in an aggregate amount of
$1,000,000 or a higher multiple of $500,000;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising such Borrowing; and
(D) in the case of Eurodollar Rate Loans, the duration of the initial Interest
Period applicable to such Loans.
(b) The Administrative Agent will promptly notify each applicable Lender of its receipt of any
Notice of Borrowing and of the amount of such Lenders Pro Rata Share of such Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of each Borrowing available to the
Administrative Agent for the account of the Company at the Administrative Agents Payment Office by
1:00 p.m. Charlotte time (in the case of Eurodollar Rate Loans) or by 2:00 p.m. Charlotte time (in
the case of Base Rate Loans) on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. The proceeds of all such Loans will then be made available
to the Company by the Administrative Agent by wire transfer in accordance with written instructions
provided to the Administrative Agent by the Company of like funds as received by the Administrative
Agent.
(d) After giving effect to any Borrowing, unless the Administrative Agent otherwise consents,
there may not be more than ten different Interest Periods in effect for all Borrowings.
2.4
Conversion and Continuation Elections for Borrowings
. (a) The Company may, upon
irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b)
:
(i) elect, as of any Business Day, in the case of Base Rate Loans, or as of the last
day of the applicable Interest Period, in the case of Eurodollar Rate Loans, to
23
convert such Loans (or any part thereof in an aggregate amount of $1,000,000 or a
higher integral multiple of $500,000) into Loans of the other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to continue any
Eurodollar Rate Loans having Interest Periods expiring on such day (or any part thereof in
an aggregate amount of $1,000,000 or a higher integral multiple of $500,000) for another
Interest Period;
provided
that if at any time the aggregate amount of Eurodollar Rate Loans in respect of
any Borrowing is reduced, by payment, prepayment, or conversion of any part thereof, to be less
than $1,000,000, such Eurodollar Rate Loans shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of Conversion/Continuation to be received by the
Administrative Agent not later than 11:00 a.m. Charlotte time at least (i) two Business Days in
advance of the Conversion/Continuation Date, if the Loans are to be converted into or continued as
Eurodollar Rate Loans; and (ii) on the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or continued;
(C) the Type of Loans resulting from the proposed conversion or continuation;
and
(D) in the case of conversion into or continuation of Eurodollar Rate Loans,
the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to Eurodollar Rate Loans, the
Company has failed to select timely a new Interest Period to be applicable to such Eurodollar Rate
Loans, the Company shall be deemed to have elected to convert such Eurodollar Rate Loans into Base
Rate Loans effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each applicable Lender of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the Company, the
Administrative Agent will promptly notify each such Lender of the details of any automatic
conversion. All conversions and continuations of Loans shall be made ratably among the Lenders
according to the respective outstanding principal amounts of the Loans with respect to which the
notice was given.
(e) Unless the Required Lenders otherwise consent, the Company may not elect to have a Loan
converted into or continued as a Eurodollar Rate Loan during the existence of an Event of Default
or Unmatured Event of Default.
(f) After giving effect to any conversion or continuation of Loans, unless the Administrative
Agent shall otherwise consent, there may not be more than ten different Interest Periods in effect
for all Borrowings.
24
2.5
Voluntary Termination or Reduction of Commitments
. The Company may, upon not less
than five Business Days prior notice to the Administrative Agent, terminate the Commitments, or
permanently reduce the Commitments by a minimum amount of $5,000,000 or a higher integral multiple
of $1,000,000;
unless
, after giving effect thereto, the Total Outstandings would exceed the
amount of the Aggregate Commitment then in effect. Once reduced in accordance with this Section,
the Commitments may not be increased. Any reduction of the Commitments shall be applied to reduce
the Commitment of each Lender according to its Pro Rata Share. If the Company terminates the
Commitments or reduces the Commitments to zero, the Company shall pay all accrued and unpaid
interest, fees and other amounts payable hereunder on the date of such termination.
2.6
Optional Prepayments
. Subject to the proviso to
subsection 2.4(a)
and to
Section 4.4
, the Company may, from time to time, upon irrevocable notice to the
Administrative Agent, which notice must be received by the Administrative Agent prior to 11:00 a.m.
Charlotte time (a) two Business Days prior to the date of prepayment, in the case of Eurodollar
Rate Loans, and (b) on the date of prepayment, in the case of Base Rate Loans, ratably prepay Loans
in whole or in part, in an aggregate amount of $1,000,000 or a higher integral multiple of $500,000
(or, if any Base Rate Loans have been made pursuant to
subsection 3.3(d)
, in an aggregate
amount equal to the aggregate amount of such Base Rate Loans). Such notice of prepayment shall
specify the date and amount of such prepayment and the Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of any such notice and of such Lenders Pro
Rata Share of such prepayment. If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the date
specified therein, together with, in the case of Eurodollar Rate Loans, accrued interest to such
date on the amount prepaid and any amounts required pursuant to
Section 4.4
.
2.7
Repayment
. The Company shall repay all Loans on the Termination Date.
2.8
Interest
.
(a) Each Loan shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to (i) the Eurodollar Rate plus the Applicable
Margin or (ii) the Base Rate plus the Applicable Margin, as the case may be (and subject to the
Companys right to convert to the other Type of Loan under
Section 2.4
).
(b) Interest on each Loan shall be paid in arrears on each Interest Payment Date. Interest
also shall be paid on the date of any conversion of Eurodollar Rate Loans under
Section 2.4
and prepayment of Eurodollar Rate Loans under
Section 2.6
, in each case for the portion of
the Loans so converted or prepaid.
(c) Notwithstanding the foregoing provisions of this Section, upon notice to the Company from
the Administrative Agent (acting at the request or with the consent of the Required Lenders) during
the existence of any Event of Default, and for so long as such Event of Default continues, the
Company shall pay interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans and, to the extent permitted by
Applicable Law, on any other amount payable hereunder or under any
25
other Loan Document, at a rate per annum which is determined by adding 2% per annum to the
rate otherwise applicable thereto pursuant to the terms hereof or such other Loan Document (or, if
no such rate is specified, the Base Rate plus the Applicable Margin). All such interest shall be
payable on demand.
(d) Anything herein to the contrary notwithstanding, the obligations of the Company to any
Lender hereunder shall be subject to the limitation that payments of interest shall not be required
for any period for which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary to the provisions
of any law applicable to such Lender limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Lender, and in such event the Company shall pay such
Lender interest at the highest rate permitted by Applicable Law.
2.9
Fees
. In addition to certain fees described in
Section 3.8
:
(a)
Arrangement, Agency Fees
. The Company agrees to pay to the Administrative Agent
and the Lead Arrangers such fees at such times and in such amounts as are set forth in the
applicable fee letters dated September 14, 2010 to the Company from each such Person, as each may
be amended or replaced from time to time (the
Fee Letters
).
(b)
Upfront Fee
. The Company agrees to pay to the Administrative Agent for the
account of each Lender based upon the amount of each Lenders Commitment as of the Closing Date, an
upfront fee in an amount previously agreed to among the Company, such Lender and the Administrative
Agent. Such upfront fee shall be due and payable on the Closing Date
(c)
Ticking Fee
. Commencing on the date of this Agreement and continuing until the
Closing Date, the Company agrees to pay to the Administrative Agent for the account of each Lender
a ticking fee of 12.5 basis points per annum on the amount of such Lenders Commitment. Such
ticking fee shall be due and payable on the earlier of the Closing Date and the date of the
termination of the Commitments.
(d)
Facility Fees
. The Company agrees to pay to the Administrative Agent for the
account of each Lender a facility fee computed at the Facility Fee Rate per annum on the amount of
such Lenders Commitment as in effect from time to time (whether used or unused) or, if the
Commitments have terminated, on the sum (without duplication) of (i) the principal amount of such
Lenders Loans plus (ii) the participation of such Lender in (or in the case of an Issuing Lender,
its unparticipated portion of) the Effective Amount of all L/C Obligations. Such facility fees
shall accrue from the Closing Date to the Termination Date, and thereafter until all Loans are paid
in full and, in the case of facility fees payable by the Company, all Letters of Credit are
terminated, and shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter, with the final payment to be made on the Termination Date (or, if later, on the
date all Loans are paid in full and all Letters of Credit are terminated).
2.10
Computation of Fees and Interest
. (a) All computations of interest on Base Rate
Loans when the Base Rate is determined by Bank of Americas prime rateshall be made on the
26
basis of a 365 (or 366) day year (as the case may be), and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day year and actual days
elapsed. Interest and fees shall accrue during each period during which such interest or such fees
are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative Agent shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error. The Administrative Agent
will, at the request of the Company or any Lender, deliver to the Company or such Lender, as the
case may be, a statement showing the quotations used by the Administrative Agent in determining any
interest rate and the resulting interest rate.
2.11
Payments by the Company
. (a) All payments to be made by the Company shall be
made without condition or deduction for any set-off, recoupment, defense or counterclaim. Except
as otherwise expressly provided herein, all payments by the Company shall be made to the
Administrative Agent for the account of the Lenders at the Administrative Agents Payment Office,
and shall be made in Dollars and in immediately available funds, no later than 4:00 p.m. Charlotte
time on the date specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such payment
in like funds as received. Any payment received by the Administrative Agent later than 4:00 p.m.
Charlotte time shall be deemed to have been received on the following Business Day and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business Day, such payment shall be made
on the following Business Day (unless, in the case of a payment with respect to a Eurodollar Rate
Loan, the following Business Day is in another calendar month, in which case such payment shall be
made on the preceding Business Day), and such extension of time shall in such case be included in
the computation of interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the Company prior to the date on
which any payment is due to the Lenders that the Company will not make such payment in full as and
when required, the Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the Administrative
Agent may (but shall not be so required), in reliance upon such assumption, distribute to each
Lender on such due date an amount equal to the amount then due such Lender. If and to the extent
the Company has not made such payment in full to the Administrative Agent, each Lender shall repay
to the Administrative Agent on demand such amount distributed to such Lender in immediately
available funds, together with interest thereon at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing for each day from the date such amount is
distributed to such Lender until the date repaid. If the Company and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Company the amount of such interest paid by the Company for such
period. If such Lender pays its share of the Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by the
Company shall be without prejudice to any claim the Company may have against a Lender that shall
have failed to make
27
such payment to the Administrative Agent. A notice of the Administrative Agent to any Lender
or the Company with respect to any amount owing under this subsection (d) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Credit Extension
to be made by such Lender as provided in the foregoing provisions of this
Article II
, and
such funds are not made available to the Company by the Administrative Agent because the conditions
to such Credit Extension set forth in
Article V
are not satisfied or waived in accordance
with the terms hereof, the Administrative Agent shall return such funds (in like funds as received
from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Credit Extensions, to fund participations
in Letters of Credit and to make payments pursuant to
Section 11.4
are several and not
joint. The failure of any Lender to make any Credit Extension, to fund any such participation or
to make any payment under
Section 11.4
on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Credit Extension, to purchase its
participation or to make its payment under
Section 11.4
.
(f)
Funding Source
. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Credit Extension in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Credit Extension
in any particular place or manner.
2.12
Payments by the Lenders to the Administrative Agent
. (a) Unless the
Administrative Agent receives notice from a Lender (i) at least one Business Day prior to the date
of a Borrowing of Eurodollar Rate Loans or (ii) by 12:00 noon Charlotte time on the day of any
Borrowing of Base Rate Loans, that such Lender will not make available as and when required
hereunder to the Administrative Agent for the account of the Company the amount of such Lenders
Pro Rata Share of such Credit Extension, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent in immediately available funds on the
Borrowing Date and the Administrative Agent may (but shall not be so required), in reliance upon
such assumption, make available to the Company on such date a corresponding amount.
(b) If and to the extent any Lender shall not have made its full amount of any Loan available
to the Administrative Agent in immediately available funds and the Administrative Agent in such
circumstances has made available to the Company such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the Administrative Agent, together with
interest at the Federal Funds Rate. If such amount is so made available, such payment to the
Administrative Agent shall constitute such Lenders Loan on the date of Borrowing for all purposes
of this Agreement. If such amount is not made available to the Administrative Agent on the
Business Day following the Borrowing Date, the Administrative Agent will notify the Company of such
failure to fund and, upon demand by the Administrative Agent, the Company shall pay such amount to
the Administrative Agent for the Administrative Agents account, together with interest thereon for
each day
28
elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(c) A notice of the Administrative Agent submitted to any Lender with respect to amounts owing
under
subsection (b)
above shall be conclusive absent manifest error.
(d) The failure of any Lender to make any Loan on any Borrowing Date shall not relieve any
other Lender of any obligation hereunder to make a Loan on such Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be made by such other Lender
on any Borrowing Date.
2.13
Sharing of Payments
. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any Loan
made by it, or the participations in L/C Obligations held by it, resulting in such Lenders
receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided herein, then the
Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact and
(b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C
Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and participations
in L/C Obligations,
provided
that:
(a) if any such participations or subparticipations are purchased and any portion of
the payment giving rise thereto is recovered, such participations or subparticipations shall
be rescinded and the purchase price restored to the extent of such recovery, without
interest; and
(b) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Company pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in
Section
2.15 or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or subparticipations in L/C Obligations to any
assignee or participant.
The Company consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise any right of setoff or counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Company in the amount of such participation.
2.14
Increase in Aggregate Commitment
.
(a)
Request for Increase
. Provided there exists no Event of Default or Unmatured
Event of Default, upon notice to the Administrative Agent (which shall promptly notify the
Lenders), the Company may from time to time, request an increase in the Aggregate Commitment by an
amount (for all such requests) not exceeding $100,000,000;
provided
that
29
any such request for an increase shall be in a minimum amount of $10,000,000. Such increase
shall be provided by existing Lenders that, in response to a request of the Company in each such
existing Lenders sole discretion, agree to so increase their Commitments and/or, subject to the
approval of the Administrative Agent and the Issuing Lenders (which approvals shall not be
unreasonably withheld), by Eligible Assignees that become Lenders pursuant to a joinder agreement
in form and substance satisfactory to the Administrative Agent and its counsel;
provided
that the Commitment of each Eligible Assignee shall be in a minimum amount of $5,000,000.
(b)
Effective Date and Allocations
. If the Aggregate Commitment is increased in
accordance with this Section, the Administrative Agent and the Company shall determine the
effective date (the
Increase Effective Date
) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation
of such increase and the Increase Effective Date.
(c)
Conditions to Effectiveness of Increase
. As a condition precedent to such
increase, the Company shall deliver to the Administrative Agent a certificate of the Company dated
as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of the Company (i) certifying and attaching the resolutions adopted by the Company
approving or consenting to such increase, and (ii) certifying that, before and after giving effect
to such increase, (A) the representations and warranties contained in
Article VI
are true
and correct on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this
Section 2.14
, the
representations and warranties contained in subsections (a) and (b) of
Section 6.11
shall
be deemed to refer to the most recent statements furnished pursuant to clause (a) of
Section
7.1
, and (B) no Default exists. If the Commitments are being increased on a nonratable basis,
the Company shall make such nonratable borrowings and such prepayments of Loans (and pay any
additional amounts required pursuant to
Section 4.4
) on the Increase Effective Date, to the
extent necessary so that after giving effect to such borrowings and prepayments, the Loans
outstanding are held by the Lenders ratably in accordance with the revised Pro Rata Shares arising
from the nonratable increase in the Commitments under this Section.
(d)
Conflicting Provisions
. This Section shall supersede any provisions in
Section 2.11
or
11.1
to the contrary.
2.15
Certain Credit Support Events
. Upon the request of the Administrative Agent or
an Issuing Lender, (i) if the Issuing Lender has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, any Letter of
Credit remains outstanding and partially or wholly undrawn as of the Termination Date, the Company
shall, in each case, immediately provide Cash Collateral in an amount equal to the L/C Obligations
on such date. At any time that there shall exist a Defaulting Lender, immediately upon the request
of the Administrative Agent or the Issuing Lender, the Company shall deliver to the Administrative
Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect
to
Section 2.16(a)(iv)
and any Cash Collateral provided by such Defaulting Lender).
30
(a)
Grant of Security Interest
. All Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America. The Company, and to the extent provided
by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative
Agent, for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders, and agrees
to maintain, a first priority security interest in all such cash and deposit accounts and all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be
applied pursuant to
Section 2.15(c)
. If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of the Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Company or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.
(b)
Application
. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this
Section 2.15
or
Sections
2.13
,
2.16
,
9.2
or
Article III
in respect of Letters of Credit shall
be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund
participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.
(c)
Release
. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with
Section 11.6(b)(vi)
)) or (ii) the Administrative Agents good
faith determination that there exists excess Cash Collateral;
provided
, (x) that Cash
Collateral furnished by or on behalf of the Company shall not be released during the continuance of
an Event of Default or Unmatured Event of Default and (y) the Person providing Cash Collateral and
the Issuing Lender may agree that Cash Collateral shall not be released but instead held to support
future anticipated Fronting Exposure or other obligations.
2.17
Defaulting Lenders
.
(a)
Adjustments
. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i)
Waivers and Amendments
. Such Defaulting Lenders right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in
Section 11.1
.
(ii)
Reallocation of Payments
. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to
Article IX
31
or otherwise,
and including any amounts made available to the Administrative Agent by such Defaulting
Lender pursuant to
Section 11.9
), shall be applied at such time or times as may be
determined by the Administrative Agent as follows:
first
, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder;
second
, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing
Lender hereunder;
third
, if so determined by the Administrative Agent or requested by the
Issuing Lender, to be held as Cash Collateral for future funding obligations of such
Defaulting Lender with respect to any participation in any Letter of Credit;
fourth
, as the
Company may request (so long as no Event of Default or Unmatured Event of Default exists),
to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the Administrative Agent;
fifth
, if so determined by the Administrative Agent and the Company, to be held in a
non-interest bearing deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement;
sixth
, to the payment of any amounts
owing to the Administrative Agent, the Issuing Lender or any other Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Lender
against such Defaulting Lender as a result of such Defaulting Lenders breach of its
obligations under this Agreement;
seventh
, so long as no Event of Default or Unmatured Event
of Default exists, to the payment of any amounts owing to the Company as a result of any
judgment of a court of competent jurisdiction obtained by the Company against such
Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under
this Agreement; and
eighth
, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction;
provided
that if (x) such payment is a payment of the
principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender
has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at
a time when the conditions set forth in
Section 4.02
were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any
Loans of, or L/C Borrowings owed to, such Defaulting Lender. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this
Section
2.16(a)(ii)
shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.
(iii)
Certain Fees
. A Defaulting Lender (x) shall not be entitled to receive
any ticking fee pursuant to
Section 2.9(c)
or any facility fee pursuant to
Section 2.9(d)
for any period during which such Lender is a Defaulting Lender except
to the extent allocable to the sum of (1) the aggregate outstanding principal amount of the
Loans funded by it and (2) its Pro Rata Share of the stated amount of Letters of Credit for
which it has provided Cash Collateral pursuant to
Sections 2.13
,
2.15
,
9.2
or
Article III
, as applicable (and the Company shall (A) be required to
pay to the Issuing Lender, the amount of such fee allocable to its Fronting Exposure arising
from such Defaulting Lender and (B) not be required to pay the remaining amount of such fee
that otherwise would have been required to have been paid to such Defaulting Lender) and (y)
shall be limited in its right to receive Letter of Credit Fees as provided in
Section
3.8
.
32
(iv)
Reallocation of Applicable Percentages to Reduce Fronting Exposure
.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit pursuant to
Sections 3.3
, the Pro Rata Share
of each non-Defaulting Lender shall be computed without giving effect to the Commitment of
such Defaulting Lender;
provided
that (i) each such reallocation shall be given
effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Event of
Default or Unmatured Event of Default exists; and (ii) the aggregate obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit
shall not exceed the positive difference, if any, of (1) the Commitment of such
non-Defaulting Lender
minus
(2) the aggregate outstanding principal amount of the
Loans of such Lender.
(b)
Defaulting Lender Cure
. If the Company, the Administrative Agent and the Issuing
Lenders agree in writing in their sole discretion that a Defaulting Lender should no longer be
deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto,
whereupon as of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any Cash Collateral), such Lender will, to
the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such
other actions as the Administrative Agent may determine to be necessary to cause the Loans and
funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the
Lenders in accordance with their Applicable Percentages (without giving effect to
Section
2.15(a)(iv)
), whereupon such Lender will cease to be a Defaulting Lender;
provided
that
no adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Company while such Lender was a Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the affected parties, no
cessation of the status of a Lender as a Defaulting Lender will constitute a waiver or release of
any claim of any party hereunder arising from such Lenders having been a Defaulting Lender
ARTICLE III
THE LETTERS OF CREDIT
3.1
The Letter of Credit Subfacility
. (a) On the terms and conditions set forth
herein (i) each Issuing Lender agrees, in reliance upon the agreements of the Lenders set forth in
this
Article III
, (A) from time to time on any Business Day during the period from the
Closing Date to the Termination Date to issue Letters of Credit for the account of the Company, and
to amend or renew Letters of Credit previously issued by it, in accordance with
subsections
3.2(c)
and
3.2(d)
, and (B) to honor properly drawn drafts under the Letters of Credit
issued by it; and (ii) the Lenders severally agree to participate in Letters of Credit Issued for
the account of the Company;
provided
that no Issuing Lender shall be obligated to Issue,
and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the
Issuance Date
) (1) the Total Outstandings exceed
the Aggregate Commitment, (2) the Effective Amount of all L/C Obligations would exceed the L/C
Commitment or (3) the participation of any Lender in the Effective Amount of all L/C Obligations
plus the outstanding principal amount of the Loans of such Lender would exceed such Lenders
Commitment. Within the foregoing limits, and subject to the other terms and conditions hereof, the
Companys
33
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
which have expired or which have been drawn upon and reimbursed.
(b) No Issuing Lender shall be under any obligation to Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such Issuing Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender
refrain from, the Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon
such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such Issuing Lender in good faith deems material to it (it being
understood that the applicable Issuing Lender shall promptly notify the Company and the
Administrative Agent of any of the foregoing events or circumstances);
(ii) such Issuing Lender has received written notice from any Lender, the
Administrative Agent or the Company, on or prior to the Business Day prior to the requested
date of Issuance of such Letter of Credit, that one or more of the applicable conditions
contained in
Article V
is not then satisfied;
(iii) the expiry date of such requested Letter of Credit is after the Termination Date,
unless all of the Lenders have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is not otherwise in form and
substance reasonably acceptable to such Issuing Lender, or the Issuance of a Letter of
Credit shall violate any applicable policies of such Issuing Lender;
(v) such Letter of Credit is denominated in a currency other than Dollars, unless all
of the Lenders have approved in writing denominating such Letter of Credit in such currency;
(vi) the issuance of the Letter of Credit would violate one or more policies of such
Issuing Lender applicable to letters of credit generally; or
(vii) any Lender is at that time a Defaulting Lender, unless such Issuing Lender has
entered into arrangements, including the delivery of Cash Collateral, satisfactory to such
Issuing Lender (in its sole discretion) with the Company or such Lender to eliminate such
Issuing Lenders actual or potential Fronting Exposure (after giving effect to
Section
2.16(a)(iv
)) with respect to such Defaulting Lender arising from either the Letter of
Credit then proposed to be issued or such Letter of Credit and all other
34
L/C Obligations as
to which the Issuing Lender has actual or potential Fronting Exposure, as it may elect in
its sole discretion.
(c) No Issuing Lender shall amend any Letter of Credit if such Issuing Lender would not be
permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
(d) No Issuing Lender shall be under any obligation to amend any Letter of Credit if (A) such
Issuing Lender would have no obligation at such time to issue the Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the
proposed amendment to the Letter of Credit.
Each Issuing Lender shall act on behalf of the Lenders with respect to any Letters of Credit issued
by it and the documents associated therewith, and each Issuing Lender shall have all of the
benefits and immunities (A) provided to the Administrative Agent in
Article X
with respect
to any acts taken or omissions suffered by such Issuing Lender in connection with Letters of Credit
issued by it or proposed to be issued by it and L/C Related Documents pertaining to such Letters of
Credit as fully as if the term Administrative Agent as used in
Article X
included such
Issuing Lender with respect to such acts or omissions, and (B) as additionally provided herein with
respect to such Issuing Lender.
3.2
Issuance, Amendment and Renewal of Letters of Credit
. (a) Each Letter of Credit
shall be issued or amended, as the case may be, upon the irrevocable written request of the Company
received by the applicable Issuing Lender (with a copy sent by the Company to the Administrative
Agent) at least two Business Days (or such shorter time as the applicable Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole discretion) prior to the
proposed date of issuance in the form of an L/C Application or L/C Amendment Application,
appropriately completed and signed by a Responsible Officer of the Company. Such L/C Application
or L/C Amendment Application must be received by the applicable Issuing Lender and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and
time as the Administrative Agent and the applicable Issuing Lender 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 L/C
Application shall specify in form and detail satisfactory to the applicable Issuing Lender: (i) proposed issuance date of the Letter of Credit; (ii) the amount of the
Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of the Letter of Credit
in case of any drawing thereunder; (vi) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (vii) the purpose and nature of the requested
Letter of Credit; and (vii) such other matters as the Issuing Lender may reasonably require related
to the issuance of such Letter of Credit. In the case of a request for an L/C Amendment, such
Letter of Credit Application shall specify in form and detail satisfactory to the Issuing Lender
(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 such
Issuing Lender may reasonably require related to the issuance of such Letter of Credit.
Additionally, the Company shall furnish to the Issuing Lender and the Administrative Agent such
other ordinary and customary documents and information pertaining to such requested
35
Letter of
Credit issuance or amendment, including any L/C-Related Documents, as the Issuing Lender or the
Administrative Agent may reasonably require.
(b) Promptly upon receipt of any L/C Application or L/C Amendment Application, the applicable
Issuing Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such L/C Application or L/C Amendment Application from
the Company and, if not, such Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the applicable Issuing Lender has received on or before the Business Day
immediately preceding the date such Issuing Lender is to issue or amend the applicable Letter of
Credit, (A) notice from the Administrative Agent directing such Issuing Lender not to issue such
Letter of Credit because such issuance is not then permitted under
subsection 3.1(a)
as a
result of the limitations set forth in
clauses (1)
through
(3)
thereof or (B) a
notice described in
subsection 3.1(b)(ii)
or (C) any limitation set forth in
clauses
(iii)
or
(v)
of
subsection 3.1(b)
has not been waived in writing by all
Lenders, then, subject to the terms and conditions hereof, such Issuing Lender shall, on the
requested date, issue a Letter of Credit for the account of the Company, or enter into the
applicable amendment, as the case may be, in each case in accordance with such Issuing Lenders
usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding and prior to the Termination
Date, the applicable Issuing Lender will, upon the written request of the Company received by such
Issuing Lender (with a copy sent by the Company to the Administrative Agent) at least two Business
Days (or such shorter time as the applicable Issuing Lender and the Administrative Agent may agree
in a particular instance in their sole discretion) prior to the proposed date of amendment, amend
any Letter of Credit issued by it. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed immediately (by messenger or overnight courier) in an original
writing, made in the form of an L/C Amendment Application and shall specify in form and detail
satisfactory to such Issuing Lender: (i) the Letter of Credit to be amended; (ii) the proposed
date of amendment of such Letter of Credit (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as such Issuing Lender may reasonably require
related to the amendment of such Letter of Credit. No Issuing Lender shall have any obligation to
amend any Letter of Credit if: (A) such Issuing Lender would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms of this Agreement; or (B) the
beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit. The Administrative Agent
will promptly notify the Lenders of any Issuance or amendment of a Letter of Credit.
(d) If the Company so requests in any applicable L/C Application, an Issuing Lender 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 Issuing Lender 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 three days (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 Issuing Lender, the Company
shall not be required to make a specific request to the Issuing Lender for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be
36
deemed to have
authorized (but may not require) the Issuing Lender to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit Expiration Date;
provided
,
however
, that the Issuing Lender shall not permit any such extension if
(A) the Issuing Lender has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of
Section 3.1(b)
or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is five Business Days
before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the
Company that one or more of the applicable conditions specified in
Section 5.2
is not then
satisfied, and in each such case directing the Issuing Lender not to permit such extension.
(e) Each Issuing Lender may, at its election (or as required by the Administrative Agent at
the direction of the Required Lenders), deliver any notice of termination or other communication to
any Letter of Credit beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
(f) This Agreement shall control in the event of any conflict with any L/C-Related Document
(other than any Letter of Credit).
(g) Each Issuing Lender will deliver to the Administrative Agent and the Company, concurrently
or promptly following its delivery of a Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete copy of such Letter of Credit or
of such amendment or renewal.
3.3
Risk Participations, Drawings and Reimbursements
(a) Immediately upon the Issuance of each Letter of Credit on or after the Closing Date, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Issuing Lender a participation in such Letter of Credit and each drawing thereunder in
an amount equal to the product of (i) such Lenders Pro Rata Share times (ii) the maximum amount
available to be drawn under such Letter of Credit and the amount of such drawing, respectively.
For purposes of
Section 2.1
, each Issuance of a Letter of
Credit shall be deemed to utilize the Commitment of each Lender by an amount equal to the
amount of such participation.
(b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or
transferee thereof, the applicable Issuing Lender will promptly notify the Company and the
Administrative Agent. The Company shall (subject, if applicable, to its right to obtain Base Rate
Loans as provided below) reimburse the applicable Issuing Lender prior to 11:00 a.m. Charlotte time
on each date that any amount is paid by such Issuing Lender under any Letter of Credit (each such
date, an
Honor Date
) in an amount equal to the amount so paid by such Issuing Lender;
provided that, to the extent that any Issuing Lender accepts a drawing under a Letter of Credit
after 11:00 a.m. Charlotte time, the Company will not be obligated to reimburse such Issuing Lender
until the next Business Day and the Honor Date for such Letter of Credit shall be such next
Business Day. If the Company fails to reimburse an Issuing Lender
37
for the full amount of any
drawing under any Letter of Credit by 11:00 a.m. Charlotte time on the Honor Date, such Issuing
Lender will promptly notify the Administrative Agent and the Administrative Agent will promptly
notify each Lender thereof (no later than 12:00 noon Charlotte time on such Honor Date), and the
Company shall be deemed to have requested that Base Rate Loans be made by the Lenders to be
disbursed on the Honor Date under such Letter of Credit, subject to the amount of the unutilized
portion of the Aggregate Commitment and subject to the conditions set forth in
Section 5.2
other than
Section 5.2(a)
. Any notice given by an Issuing Lender or the Administrative
Agent pursuant to this
subsection 3.3(b)
may be oral if immediately confirmed in writing
(including by facsimile or email);
provided
that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(c) Each Lender shall upon any notice pursuant to
subsection 3.3(b)
make funds
available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to the
Administrative Agent for the account of the applicable Issuing Lender an amount in Dollars and in
immediately available funds equal to its Pro Rata Share of the amount of the drawing, whereupon the
Lenders shall (subject to
subsection 3.3(d))
each be deemed to have made a Loan consisting
of a Base Rate Loan to the Company in such amount. If any Lender so notified fails to make
available to the Administrative Agent for the account of the applicable Issuing Lender the amount
of such Lenders Pro Rata Share of the amount of such drawing by no later than 2:00 p.m. Charlotte
time on the Honor Date, then interest shall accrue on such Lenders obligation to make such
payment, from the Honor Date to the date such Lender makes such payment, at a rate per annum equal
to the greater of the Federal Funds Rate in effect from time to time during such period and a rate
determined by the Issuing Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
Issuing Lender in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lenders Loan included in the
relevant Borrowing or L/C Advance in respect of the relevant Borrowing, as the case may be. A
certificate of the Issuing Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this
Section 3.3(c)
shall be conclusive absent manifest
error. The Administrative Agent will promptly give notice of the occurrence of the Honor Date, but
failure of the Administrative Agent to give any such notice on the Honor Date or in sufficient time
to enable any Lender to effect such payment on such date shall not relieve such Lender from its
obligations under this
Section 3.3
.
(d) With respect to any unreimbursed drawing that is not converted into Base Rate Loans in
whole or in part, because of the Companys failure to satisfy the conditions set forth in
Section 5.2
(other than
subsection 5.2(a)
which need not be satisfied) or for any
other reason, the Company shall be deemed to have incurred from the applicable Issuing Lender an
L/C Borrowing in the amount of such drawing, which L/C Borrowing shall be due and payable on demand
and shall bear interest (payable on demand) at a rate per annum equal to the Base Rate plus 2%, and
each Lenders payment to such Issuing Lender pursuant to
subsection 3.3(c)
shall be deemed
payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
Section 3.3
.
Until each Lender funds its Loan or L/C Advance pursuant to this
Section 3.3
to reimburse
the Issuing Lender for any amount drawn under any Letter of Credit, interest in
38
respect of such
Lenders Pro Rata Share of such amount shall be solely for the account of the Issuing Lender.
(e) Each Lenders obligation in accordance with this Agreement to make the Loans or L/C
Advances, as contemplated by this
Section 3.3
, as a result of a drawing under a Letter of
Credit, shall be absolute and unconditional and without recourse to any Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the applicable Issuing Lender, the Company or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default,
an Unmatured Event of Default or a Material Adverse Effect; or (iii) any other circumstance,
happening, event or condition whatsoever, whether or not similar to any of the foregoing;
provided
that each Lenders obligation to make Loans under this
Section 3.3
is
subject to the conditions set forth in
Section 5.2
(other than
subsection 5.2(a)
).
No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to
reimburse the Issuing Lender for the amount of any payment made by the Issuing Lender under any
Letter of Credit, together with interest as provided herein.
3.4
Repayment of Participations
. (a) Upon (and only upon) receipt by the
Administrative Agent for the account of an Issuing Lender of immediately available funds from the
Company (i) in reimbursement of any payment made by such Issuing Lender under a Letter of Credit
with respect to which any Lender has paid the Administrative Agent for the account of such Issuing
Lender for such Lenders participation in such Letter of Credit pursuant to
Section 3.3
or
(ii) in payment of interest thereon (whether directly from the Company or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent
will pay to each Lender, in the same funds as those received by the Administrative Agent for the
account of such Issuing Lender, the amount of such Lenders Pro Rata Share of such funds, and such
Issuing Lender shall receive the amount of the Pro Rata Share of such funds of any Lender that did
not so pay the Administrative Agent for the account of such Issuing Lender.
(b) If the Administrative Agent or an Issuing Lender is required at any time to return to the
Company, or to a trustee, receiver, liquidator or custodian, or to any official in any Insolvency
Proceeding, any portion of any payment made by the Company or the Lenders to the Administrative
Agent for the account of an Issuing Lender pursuant to
subsection 3.4(a)
in reimbursement
of a payment made under a Letter of Credit or interest or fee thereon, each Lender shall, on demand
of the Administrative Agent, forthwith return to the Administrative
Agent or the applicable Issuing Lender the amount of its Pro Rata Share of any amount so
returned by the Administrative Agent or such Issuing Lender plus interest thereon from the date
such demand is made to the date such amount is returned by such Lender to the Administrative Agent
or such Issuing Lender, at a rate per annum equal to the Federal Funds Rate in effect from time to
time. The obligations of the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.
3.5
Role of the Issuing Lenders
. (a) Each Lender and the Company agree that, in
paying any drawing under a Letter of Credit, the applicable Issuing Lender shall not have any
responsibility to obtain any document (other than any sight draft and certificate expressly
39
required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or delivering any such document.
(b) No Issuing Lender or Agent-Related Person, nor any of their respective Related Parties nor
any correspondent, participant or assignee of an Issuing Lender, shall be liable to any Lender for:
(i) any action taken or omitted in connection herewith at the request or with the approval of the
Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit;
provided
that this assumption
is not intended to, and shall not, preclude the Companys pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other agreement. No Issuing
Lender or Agent-Related Person, nor any of their respective Related Parties, nor any correspondent,
participant or assignee of an Issuing Lender, shall be liable or responsible for any of the matters
described in
clauses
(i) through
(vii)
of
Section 3.6
;
provided
that, anything in such clauses to the contrary notwithstanding, the Company may have a claim
against an Issuing Lender, and such Issuing Lender may be liable to the Company, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by
the Company which the Company proves were caused by such Issuing Lenders willful misconduct or
gross negligence or such Issuing Lenders willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of
the foregoing: (i) an Issuing Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or information to the
contrary; and (ii) no Issuing Lender shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.6
Obligations Absolute
. The obligations of the Company under this Agreement and any
L/C-Related Document to reimburse the applicable Issuing Lender for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a Letter of Credit converted into
Loans, shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this Agreement or any L/C-Related
Document;
(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Company in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or any of the L/C-Related
Documents;
40
(iii) the existence of any claim, counterclaim, set-off, defense or other right that
the Company or any Subsidiary may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the applicable Issuing Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by any L/C-Related Document or
any unrelated transaction;
(iv) any draft, demand, certificate or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by an Issuing Lender under any Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by an Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee, for all or any of
the obligations of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Companys
instructions or other irregularity, the Company will promptly notify the Issuing Lender. The
Company shall be conclusively deemed to have waived any such claim against the Issuing Lender and
its correspondents unless such notice is given as aforesaid.
3.7
Letter of Credit Fees
. (a) The Company shall pay to the Administrative Agent for
the account of each Lender a letter of credit fee with respect to each Letter of Credit equal to
the L/C Fee Rate per annum of the average daily maximum amount available to be drawn on such Letter
of Credit;
provided
that any letter of credit fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has
not provided Cash Collateral satisfactory to the Issuing Lender pursuant to this
Section
3.8
shall be payable, to the maximum extent permitted by Applicable Law, to the other Lenders
in accordance with the upward adjustments in their respective Pro Rata Shares allocable to such
Letter of Credit pursuant to
Section 2.16(a)(iv)
, with the balance of such fee, if any,
payable to the applicable Issuing Lender for its own account. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with
Section 1.4
. Letter of credit fees shall be (i) due and
payable on
41
the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Termination Date (or such later date upon which all outstanding Letters of Credit shall expire or
be fully drawn) and thereafter on demand and (ii) computed on a quarterly basis in arrears. If
there is any change in the Applicable Margin during any quarter, the daily amount available to be
drawn under each Letter of Credit shall be computed and multiplied by the Applicable Margin
separately for each period during such quarter that such Applicable Margin was in effect.
Notwithstanding anything to the contrary contained herein, upon the request of the Required
Lenders, while any Event of Default exists, all letter of credit fees shall accrue at a rate per
annum equal to the sum of the otherwise applicable L/C Fee Rate
plus
2%.
(b) The Company shall pay to each Issuing Lender a letter of credit fronting fee at such times
and in such amounts as are mutually agreed to from time to time by the Company and such Issuing
Lender.
(c) The Company shall pay to each Issuing Lender from time to time on demand the normal
issuance, presentation, amendment and other processing fees, and other standard costs and charges,
of such Issuing Lender relating to letters of credit as from time to time in effect.
3.8
Applicability of ISP
. Unless otherwise expressly agreed by the Issuing Lender and
the Company when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.
3.9
Conflict with L/C Related Documents
. In the event of any conflict between the
terms hereof and the terms of any L/C-Related Document, the terms hereof shall control.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1
Taxes
. (a) Any and all payments by the Company to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, the Company shall pay all
Other Taxes and Further Taxes.
(b) If the Company shall be required by law to deduct or withhold any Taxes, Other Taxes or
Further Taxes from or in respect of any sum payable hereunder to any Lender or The Administrative
Agent, then:
(i) the sum payable shall be increased as necessary so that, after making all required
deductions and withholdings (including deductions and withholdings applicable to additional
sums payable under this Section), such Lender or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have received and retained had
no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
42
(iii) the Company shall pay the full amount deducted or withheld to the relevant taxing
authority or other authority in accordance with Applicable Law.
(c) The Company agrees to indemnify and hold harmless each Lender and the Administrative Agent
for the full amount of Taxes, Other Taxes and Further Taxes in the amount that such Lender
specifies as necessary to preserve the after-tax yield such Lender would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not
such Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such Lender or the Administrative Agent
makes written demand therefor.
(d) Within 30 days after the date of any payment by the Company of any Taxes, Other Taxes or
Further Taxes, the Company shall furnish each applicable Lender and the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment
satisfactory to such Lender and the Administrative Agent.
(e) If the Company is required to pay any amount to any Lender or the Administrative Agent
pursuant to
subsection (b)
or
(c)
of this Section, then such Lender shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office so as to eliminate any such additional payment by the Company which may
thereafter accrue, if such change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender.
(f) Notwithstanding the foregoing provisions of this
Section 4.1
, if any Lender fails
to notify the Company of any event or circumstance which will entitle such Lender to compensation
pursuant to this
Section 4.1
within 120 days after such Lender obtains knowledge of such
event or circumstance, then such Lender shall not be entitled to compensation from the Company for
any amount arising prior to the date which is 120 days before the date on which such Lender
notifies the Company of such event or circumstance.
4.2
Illegality
. (a) If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending
Office to make Eurodollar Rate Loans, then, on notice thereof by such Lender to the Company through
the Administrative Agent, any obligation of such Lender to make Eurodollar Rate Loans shall be
suspended until such Lender notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any Eurodollar Rate Loan, the
Company shall, upon its receipt of notice of such fact and demand from such Lender (with a copy to
the Administrative Agent), prepay in full such Eurodollar Rate Loan of such Lender then
outstanding, together with interest accrued thereon and amounts required under
Section 4.4
,
either on the last day of the Interest Period thereof, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loan to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loan. If the Company is required to so
43
prepay any
Eurodollar Rate Loan, then concurrently with such prepayment, the Company shall borrow from the
affected Lender, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain Eurodollar Rate Loans has been so
terminated or suspended, all Loans which would otherwise be made by such Lender as Eurodollar Rate
Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under this Section, the affected
Lender shall designate a different Lending Office with respect to its Eurodollar Rate Loans if such
designation will avoid the need for giving such notice or making such demand and will not, in the
judgment of such Lender, be illegal or otherwise disadvantageous to such Lender.
4.3
Increased Costs and Reduction of Return
. (a) If any Lender determines that, due
to either (i) the introduction of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Eurodollar Rate) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with any guideline or
request from any central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Lender of agreeing to make or making, funding
or maintaining any Eurodollar Rate Loan or participating in any Letter of Credit, or, in the case
of an Issuing Lender, any increase in the cost to such Issuing Lender of agreeing to issue, issuing
or maintaining any Letter of Credit or of agreeing to make or making, funding or maintaining any
unpaid drawing under any Letter of Credit, then the Company shall be liable for, and shall from
time to time, upon demand (with a copy of such demand to be sent to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender, additional amounts as are sufficient to
compensate such Lender for such increased cost.
(b) If any Lender shall have determined that (i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Lender (or its Lending Office) or any corporation controlling such Lender with
any Capital Adequacy Regulation affects or would affect the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and (taking into
consideration such Lenders or such corporations policies with respect to capital adequacy and
such Lenders desired return on capital) determines that the amount of such capital is increased as
a consequence of its Commitment, Loans or obligations under this Agreement, then, upon demand of
such Lender to the Company through the Administrative Agent, the
Company shall pay to such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such increase.
(c) Notwithstanding the foregoing provisions of this
Section 4.3
, if any Lender fails
to notify the Company of any event or circumstance which will entitle such Lender to compensation
pursuant to this
Section 4.3
within 60 days after such Lender obtains knowledge of such
event or circumstance, then such Lender shall not be entitled to compensation from the Company for
any amount arising prior to the date which is 60 days before the date on which such Lender notifies
the Company of such event or circumstance.
44
4.4
Funding Losses
. The Company shall reimburse each Lender and hold each Lender
harmless from any loss or expense which the Lender may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any payment of principal of any
Eurodollar Rate Loan;
(b) the failure of the Company to borrow, continue or convert a Loan after the Company has
given (or is deemed to have given) a Notice of Borrowing or a Notice of Conversion/Continuation for
such Loan;
(c) the failure of the Company to make any prepayment in accordance with any notice delivered
under
Section 2.6
; or
(d) the prepayment (including after acceleration thereof) of a Eurodollar Rate Loan on a day
that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain its Eurodollar Rate Loans or from fees payable to terminate the deposits from
which such funds were obtained. For purposes of calculating amounts payable by the Company to the
Lenders under this Section and under
subsection 4.3(a)
, each Eurodollar Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR rate used in determining the Eurodollar Rate for such
Eurodollar Rate Loan by a matching deposit or other borrowing in the interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan is in
fact so funded.
4.5
Inability to Determine Rates
. If (i) the Administrative Agent determines that for
any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (ii) the Required
Lenders determine that the Eurodollar Rate applicable pursuant to
Section 2.8
for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Loans hereunder shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders, in the case of
clause (ii)
) revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not
revoke such Notice, the Lenders shall make, convert or continue such Loans, as proposed by the
Company, in the amount specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Loans instead of Eurodollar Rate Loans.
4.6
Certificates of Lenders
. Any Lender claiming reimbursement or compensation under
this
Article IV
shall deliver to the Company (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the amount payable to such Lender hereunder and the
45
manner in which such amount has been calculated, and such certificate shall be conclusive and
binding on the Company in the absence of manifest error.
4.7
Substitution of Lenders
. Upon the receipt by the Company from any Lender of a
claim for compensation under
Section 4.1
or
4.3
or a notice of the type described
in
Section 4.2
, the Company may: (i) designate a replacement bank or financial institution
satisfactory to the Company (a
Replacement Lender
) to acquire and assume all of such
affected Lenders Loans and Commitment; and/or (ii) request one or more of the other Lenders to
acquire and assume all of such affected Lenders Loans and Commitment. Any designation of a
Replacement Lender under
clause (i)
shall be subject to the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld or delayed).
4.8
Survival
. The agreements and obligations of the Company in this
Article
IV
shall survive the termination of this Agreement and the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1
Conditions to Initial Credit Extensions
. The obligation of each Lender to make
its initial Credit Extension under this Agreement shall be subject to the condition that the
Administrative Agent shall have received all of the following, in form and substance satisfactory
to the Administrative Agent and each Lender, and (except for the Notes) in sufficient copies for
each Lender, on or before December 31, 2010:
(a)
Agreement and Notes
. This Agreement and the Notes executed by each party hereto
and thereto.
(b)
Resolutions; Incumbency
.
(i) Copies of the resolutions of the board of directors of the Company authorizing the
execution and delivery of the Loan Documents to which the Company is a party and the
consummation of the transactions contemplated hereby, certified as of the Closing Date by
the Secretary or an Assistant Secretary of the Company; and
(ii) a certificate of the Secretary or Assistant Secretary of the Company certifying
the names and true signatures of the officers of the Company authorized to execute and
deliver the Loan Documents, Notices of Borrowing, Notices of Conversion/Continuation,
Compliance Certificates, L/C Applications, L/C Amendment Applications to which such Person is a party and other documents in connection
herewith.
(c)
Organization Documents
. The articles or certificate of incorporation and the
bylaws of the Company as in effect on the Closing Date, certified by the Secretary or Assistant
Secretary of the Company as of the Closing Date.
(d)
Legal Opinions
. An opinion of counsel to the Company, in form and substance
satisfactory to the Administrative Agent and the Lenders; and
46
(e)
Payment of Fees
. Evidence of payment by the Company of all accrued and unpaid
fees, costs and expenses to the extent then due and payable hereunder on the Closing Date, together
with external Attorney Costs of Bank of America to the extent invoiced prior to or on the Closing
Date.
(f)
Certificate
. A certificate signed by a Responsible Officer, dated as of the
Closing Date, stating that:
(i) the representations and warranties contained in
Article VI
are true and
correct on and as of such date, as though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default exists or would result from the
effectiveness of this Agreement;
(iii) since December 31, 2009, no event or circumstance has occurred that has resulted
or could reasonably be expected to result in a Material Adverse Effect; and
(iv) the Company and its Subsidiaries (including Snyders and its Subsidiaries) are in
compliance with all existing Material Financial Obligations.
(g)
Pro Forma Compliance Certificate
. Evidence satisfactory to the Administrative
Agent that the Company is in pro forma compliance with
Sections 8.1
,
8.4
,
8.6
and
8.10
after giving effect to the Snyders Merger, the financing contemplated
hereby, including a certificate of the Chief Financial Officer of the Company certifying as to
compliance with such financial covenants and demonstrating (in reasonable detail) the calculations
required by such covenants.
(h)
Repayment and Termination of Existing Credit Agreements
. (i) Instructions by the
Company to apply the initial borrowings hereunder to payment of all outstanding obligations under
the Existing Credit Agreement, other than the principal of and interest on the Term Loans as
defined therein, and to terminate the U.S. Revolving Credit Commitments and Canadian
Commitments under and as defined therein.
(i)
Snyders Merger
. Copies of the Snyders Merger Agreement and the documents
pursuant to which the Snyders Merger will be completed (the
Snyders Merger Documents
),
together with a certificate from a Responsible Officer of the Company certifying that:
(i) the Snyders Merger has been, or concurrently with the making of the initial Credit
Extensions hereunder will be, consummated in accordance with the terms of the Snyders
Merger Agreement and Applicable Law and regulatory approvals;
(ii) no amendment or waiver has been made to any Snyders Merger Document unless
approved by the Administrative Agent (such approval not to be unreasonably withheld or
delayed and not required for (x) any amendment or modification to correct an ambiguity or
(y) any amendment, waiver or modification that could not reasonably be expected to adversely
affect in any material respect the interests
47
of the Administrative Agent or any Lender under
or with respect to the credit facilities provided hereunder);
(iii) Except as set forth on
Schedule 5.1
, there is no action, suit,
investigation or proceeding pending in any court or before any arbitrator or Governmental
Authority that purports to prohibit the closing of this Agreement or the consummation of the
transactions contemplated hereby (including the Snyders Merger), or that could have a
Material Adverse Effect on the Company or its Subsidiaries or any transaction contemplated
hereby or on the ability of the Company and its Subsidiaries to perform their respective
obligations under the Loan Documents;
(iv) the Existing Credit Agreement has been amended to permit the Snyders Merger and
to align the covenants and defaults with the provisions of this Agreement;
(v) the Snyders Merger complies in all material respects with all applicable legal
requirements, and all necessary governmental, regulatory, shareholder and other material
consents and material approvals required for the consummation of the Snyders Merger have
been (i) duly waived or (ii) duly obtained and in full force and effect;
(vi) the consummation of the Snyders Merger does not violate any statute or regulation
of the United States or any other applicable jurisdiction, or any order, judgment or decree
of any court or other Governmental Authority, or result in a breach of, or constitute a
default under, any material agreement or indenture by which the Company, Snyders or any of
their respective Subsidiaries is bound; and
(vii) all of the representations and warranties set forth in the Snyders Merger
Agreement are true and correct in all material respects on the Closing Date.
(j)
Other Documents
. Such other approvals, opinions, documents or materials as the
Administrative Agent or any Lender may reasonably request.
5.2
Conditions to All Credit Extensions
. The obligation of each Lender to make any
Credit Extension and the obligation of any Issuing Lender to Issue any Letter of Credit is subject
to the satisfaction of the following conditions precedent on the relevant Borrowing Date or
Issuance Date:
(a)
Notice, Application
. The applicable Agent shall have received a Notice of
Borrowing as required under
Section 2.3
, or in the case of the Issuance of any Letter of
Credit, the applicable Issuing Lender and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application, as required under
Section 3.2
.
(b)
Continuation of Representations and Warranties
. The representations and
warranties in
Article VI
shall be true and correct in all material respects on and of such
Borrowing Date or Issuance Date with the same effect as if made on and as of such Borrowing Date or
Issuance Date (except to the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such earlier date).
48
(c)
No Existing Default
. No Event of Default or Unmatured Event of Default shall
exist or shall result from such Credit Extension.
Each Notice of Borrowing, notice of acceptance of an L/C Application and L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and warranty by the Company
that, as of the date of each such notice and as of the relevant Borrowing Date or Issuance Date, as
applicable, the conditions in this
Section 5.2
are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and each Lender that:
6.1
Corporate Existence and Power
. The Company and each of its Subsidiaries:
(a) is a corporation duly organized and validly existing and, if applicable in the
jurisdiction of its incorporation, in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental licenses, authorizations, consents and
approvals (i) to own its assets and to carry on its business and (ii) to execute, deliver and
perform its obligations under the Loan Documents to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in
subclause (b)(i)
,
clause (c)
or
clause
(d)
, to the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.2
Corporate Authorization; No Contravention
. The execution, delivery and
performance by the Company of each Loan Document to which it is party have been duly authorized by
all necessary corporate action, and do not and will not:
(a) contravene the terms of any of its Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any material Contractual Obligation to which the Company or any of
its Subsidiaries is a party or any order, injunction, writ or decree of any Governmental Authority
to which the Company or any of its Subsidiaries or any of its or their property is subject; or
(c) violate any Requirement of Law.
49
6.3
Governmental Authorization
. No approval, consent, exemption, authorization or
other action by, or notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement against, the Company
of the Agreement or any other Loan Document.
6.4
Binding Effect
. This Agreement and each other Loan Document to which it is party
constitute the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally or
by equitable principles relating to enforceability.
6.5
Litigation
. Except as set forth on
Schedule 6.5
, there are no actions,
suits, proceedings, claims or disputes pending or, to the best knowledge of the Company, threatened
or contemplated, at law, in equity, in arbitration or before any Governmental Authority, against
the Company or any Subsidiary or any of their respective properties (a) which purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions contemplated
hereby or thereby; or (b) as to which there exists a reasonable likelihood of an adverse
determination, which determination would reasonably be expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order or other order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of this Agreement or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or therein provided.
6.6
No Default
. No Event of Default or Unmatured Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the Closing Date, neither the
Company nor any Subsidiary is in default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.
6.7
ERISA Compliance; Canadian Plans
. Except as specifically disclosed in
Schedule 6.7
:
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS and to the
best knowledge of the Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Company, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan which has resulted
or could reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules
50
with respect to any Plan
which has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no contribution
failure has occurred with respect to a Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA; (iii) no Pension Plan has any Unfunded Pension Liability; (iv) neither the Company
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV
of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (v) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to
a Multiemployer Plan; and (vi) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(d) All Canadian Plans are duly registered when required by, and in good standing under,
Applicable Law; all required contributions have been made under all Canadian Plans; all Canadian
Plans are funded in accordance with the respective rules thereof and all Requirements of Law; and
no past service or experience deficiency funding liabilities exist under any Canadian Plan.
6.8
Use of Proceeds; Margin Regulations
. The proceeds of the Loans will be used
solely for the purposes set forth in and permitted by
Section 7.12
and
Section 8.8
.
Neither the Company nor any Subsidiary is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock.
6.9
Title to Properties
. The Company and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of their respective businesses, except for such liens, title defects
and other matters affecting title as could not, individually or in the aggregate, have a Material
Adverse Effect. As of the Closing Date, the property of the Company and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
6.10
Taxes
. The Company and its Subsidiaries have filed all Federal and other
material tax returns and reports required to be filed, and have paid all Federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or any
Subsidiary that would, if made, have a Material Adverse Effect.
6.11
Financial Condition
. (a) The audited consolidated financial statements of the
Company and its Subsidiaries dated as of December 31, 2009, and the related consolidated statements
of income or operations, stockholders equity and cash flows for the fiscal year ended on that
date:
51
(i) were prepared in accordance with GAAP consistently applied throughout the periods
covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Company and its Subsidiaries as of
the dates thereof and the results of operations for the periods covered thereby; and
(iii) except as set forth on
Schedule 6.11
, show all material indebtedness and
other liabilities, absolute or contingent, of the Company and its consolidated Subsidiaries
as of the dates thereof, including liabilities for all material taxes and material
Contingent Obligations.
(b) Since December 31, 2009, there has been no Material Adverse Effect.
6.12
Environmental Matters
. Except as set forth on
Schedule 6.12
, the Company
and its Subsidiaries are in material compliance with all applicable Environmental Laws and are not
subject to Environmental Claims except for such non-compliance and Environmental Claims that could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13
Regulated Entities
. None of the Company, any Person controlling the Company, or
any Subsidiary is an Investment Company within the meaning of the Investment Company Act of 1940.
6.14
No Burdensome Restrictions
. Neither the Company nor any Subsidiary is a party to
or bound by any Contractual Obligation, or subject to any restriction in any Organization Document
or any Requirement of Law, which could reasonably be expected to have a Material Adverse Effect.
6.15
Copyrights, Patents, Trademarks and Licenses, etc
. The Company or its
Subsidiaries own or are licensed or otherwise have the right to use all of the material patents,
trademarks, service marks, trade names, copyrights, contractual franchises, authorizations and
other rights that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Company or any Subsidiary, and which is
material to the business or operations of the Company and its Subsidiaries, infringes upon any
rights held by any other Person.
6.16
Subsidiaries
. As of the Closing Date, the Company has no Subsidiaries other than
those specifically disclosed in
part (a)
of
Schedule 6.16
and has no equity
investments in any other corporation or entity other than those specifically disclosed in
part
(b)
of
Schedule 6.16
.
6.17
Insurance
. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts,
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Company or such Subsidiary
operates.
52
6.18
Swap Obligations
. Neither the Company nor any of its Subsidiaries has incurred
any outstanding obligations under any Swap Contracts, other than Permitted Swap Obligations.
6.19
Full Disclosure
. The representations and warranties made by the Company and its
Subsidiaries in the Loan Documents as of the date such representations and warranties are made or
deemed made, and the statements contained in any exhibit, report, statement or certificate
furnished by or on behalf of the Company or any Subsidiary in connection with the Loan Documents,
taken as a whole, do not contain any untrue statement of a material fact or omit any material fact
required to be stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made or delivered.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Required Lenders waive compliance in writing:
7.1
Financial Statements
. The Company shall deliver to the Administrative Agent in
form and detail satisfactory to the Administrative Agent and the Required Lenders, with sufficient
copies for each Lender.
(a) as soon as available, but not later than 100 days after the end of each fiscal year, a
copy of the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of
such year and the related consolidated statements of income or operations, stockholders equity and
cash flows for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of KPMG LLP or another nationally-recognized
independent public accounting firm (
Independent Auditor
), which opinion (i) shall state
that such consolidated financial statements present fairly the Companys consolidated financial
position for the periods indicated in conformity with GAAP and (ii) shall not be qualified or
limited because of a restricted or limited examination by the Independent Auditor of any material
portion of the Companys or any Subsidiarys records (it being agreed that the requirements of this
subsection 7.1(a)
may be satisfied by the delivery of the applicable annual report on Form
10-K of the Company to the Administrative Agent by email to the extent that it is delivered within
the applicable time period noted herein); and
(b) as soon as available, but not later than 45 days after the end of each of the first three
fiscal quarters of each fiscal year, a copy of the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of the end of such quarter and the related consolidated statements
of income, stockholders equity and cash flows for the period commencing on the first day and
ending on the last day of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith year-end audit adjustments),
the financial position and the results of operations of the Company and its Subsidiaries as of such
date and for such period (it being agreed that the requirements of this
subsection 7.1(b)
may be satisfied by the delivery of the applicable quarterly report on Form 10-Q
53
of the Company to the Administrative Agent by email to the extent that it is delivered
within the applicable time period noted herein).
7.2
Certificates; Other Information
. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to in
subsections 7.1(a)
and
(b)
, a Compliance Certificate executed by a Responsible
Officer;
(b) promptly, copies of all financial statements and reports that the Company sends to its
shareholders, and copies of all financial statements and regular, periodic or special reports
(including Forms 10-K, 10-Q and 8-K) that the Company or any Subsidiary may make to, or file with,
the SEC (it being agreed that the requirements of this
subsection 7.2(b)
may be satisfied
by the delivery of such financial statements and reports to the Administrative Agent by email); and
(c) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
Documents required to be delivered pursuant to
Section 7.1(a)
or
(b)
or
Section 7.2(b)
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents, or provides a link thereto on
the Companys website on the Internet at the website address listed on
Schedule 11.2
; or
(ii) on which such documents are posted on the Companys behalf on an Internet or intranet website,
if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent);
provided
that: (i)
the Company shall, upon written request, deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Company to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Company with any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Company hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the Issuing Lender materials and/or information provided by or on
behalf of the Company hereunder (collectively,
Borrower Materials
) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the
Platform
) and
(b) certain of the Lenders (each, a
Public Lender
) may have personnel who do not wish to
receive material non-public information with respect to the Company or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons securities. The Company hereby
54
agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall
be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC
shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, the
Company shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing
Lenders and the Lenders to treat such Borrower Materials as not containing any material non-public
information with respect to the Company or its securities for purposes of United States Federal and
state securities laws (
provided
,
however
, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section
11.9
); (y)
all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the
Platform designated Public Side Information; and (z) the Administrative Agent and the Arranger
shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable
only for posting on a portion of the Platform not designated Public Side Information.
7.3
Notices
. The Company shall promptly (or, in the case of any event described
in
clause (c)(ii)
below, not less than 10 days prior to the occurrence of such event)
notify the Administrative Agent and each Lender:
(a) of the occurrence of any Event of Default or Unmatured Event of Default known to the
Company;
(b) of any of the following matters that has resulted or is reasonably expected to result
in a Material Adverse Effect: (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Company or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any of the following events known to the Company which affect the
Company or any ERISA Affiliate, and deliver to the Administrative Agent and each Lender a copy of
any notice with respect to such event that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Company or any ERISA Affiliate with respect to such
event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension Plan sufficient to give rise
to a Lien under Section 302(f) of ERISA;
(iii) a material increase in the Unfunded Pension Liability of any Pension Plan;
(iv) the adoption of, or the commencement of contributions to, any Plan subject to
Section 412 of the Code by the Company or any ERISA Affiliate; or
55
(v) the adoption of any amendment to a Plan subject to Section 412 of the Code, if
such amendment results in a material increase in contributions or Unfunded Pension
Liability; and
(d) of any material change in accounting policies or financial reporting practices by the
Company and its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written statement by a Responsible
Officer setting forth details of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto. Each notice under
subsection 7.3(a)
shall describe with particularity any and all clauses or provisions of
this Agreement or any other Loan Document that, to the best of such Responsible Officers
knowledge, have been breached or violated.
7.4
Preservation of Corporate Existence, Etc
. The Company shall, and shall cause
each Subsidiary to:
(a) except as otherwise permitted with respect to any Subsidiary pursuant to
Section
8.4
, preserve and maintain in full force and effect its corporate existence and valid existence
under the laws of its jurisdiction of organization;
(b) preserve and maintain in full force and effect all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary in the normal conduct of its business
(except (i) in connection with transactions permitted by
Section 8.4
and sales of assets
permitted by
Section 8.3
and (ii) to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect);
(c) use reasonable efforts, in the ordinary course of business, to preserve its business
organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a Material Adverse
Effect.
7.5
Maintenance of Property
. The Company shall, and shall cause each Subsidiary
to, maintain and preserve all its property which is used or useful in its business in good working
order and condition, ordinary wear and tear excepted, except to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect.
7.6
Insurance
. The Company shall, and shall cause each Subsidiary to, maintain,
with financially sound and reputable independent insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily insured against by Persons engaged in
the same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons.
7.7
Payment of Obligations
. The Company shall, and shall cause each Subsidiary
to, pay and discharge, as the same shall become due and payable, all their respective material
obligations and liabilities, including:
56
(a) all material tax liabilities, assessments and governmental charges or levies upon it
or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained by the Company or
such Subsidiary; and
(b) all material claims which, if unpaid, would by law become a Lien upon its property
unless the same are contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary.
7.8
Compliance with Laws
. The Company shall, and shall cause each Subsidiary to,
comply in all material respects with all material Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal Fair Labor Standards Act),
except such as may be contested in good faith or as to which a bona fide dispute may exist.
7.9
Compliance with ERISA; Canadian Plans
. The Company shall, and shall cause
each of its ERISA Affiliates to: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause each
Plan which is qualified under Section 401(a) of the Code to maintain such qualification; and (c)
make all required contributions to any Plan subject to Section 412 of the Code. The Company shall
maintain, and cause each Canadian Subsidiary to maintain, each Canadian Plan in compliance in all
material respects with all Requirements of Law.
7.10
Inspection of Property and Books and Records
. The Company shall, and shall
cause each Subsidiary to, maintain proper books of record and account, in which true and correct
entries (sufficient to permit the preparation of consolidated financial statements in conformity
with GAAP) shall be made of all financial transactions and matters involving the assets and
business of the Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent or any Lender, at any reasonable time during normal
business hours upon advance request of the Administrative Agent or the relevant Lender, to visit
and inspect the properties of the Company or any Subsidiary and to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss the affairs, finances and accounts of the Company or any Subsidiary with the appropriate
officers of the Company or such Subsidiary.
7.11
Environmental Laws
. The Company shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in material compliance with all material
Environmental Laws, except such as may be contested in good faith or as to which a bona fide
dispute may exist.
7.12
Use of Proceeds
. The Company shall use the proceeds of the Loans (a) to fund
the dividends payable to the Companys stockholders in connection with the Snyders Merger, (b) to
refinance the revolving credit obligations under the Existing Credit Agreement, (c) to refinance
certain other debt and (d) for working capital, capital expenditures and other lawful corporate
purposes;
provided
that the Company shall not use the proceeds of any Loan to make any
Acquisition if the Board of Directors of the Person to be acquired has not approved such
Acquisition.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Required Lenders waive compliance in writing :
8.1
Financial Condition Covenants
(a)
Total Debt to EBITDA Ratio
. The Company shall not permit the Total Debt to
EBITDA Ratio for any Computation Period to be greater than 3.25 to 1 or, with respect to no more
than four consecutive Computation Periods following a Material Acquisition, 3.50 to 1.
(b)
Interest Coverage Ratio
. The Company shall not permit, as of the last day of
any Computation Period, the Interest Coverage Ratio to be less than 2.50 to 1.
8.2
Limitation on Liens
. The Company shall not, and shall not suffer or permit
any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien
upon or with respect to any part of its property, whether now owned or hereafter acquired, other
than the following (
Permitted Liens
):
(a) any Lien existing on property of the Company or any Subsidiary on the Closing Date and
set forth in
Schedule 8.2
securing Indebtedness outstanding on such date, and any
extension, renewal or replacement of any such Lien so long as the principal amount secured thereby
is not increased and the scope of the property subject to such Lien is not extended;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not
delinquent or remain payable without penalty, or to the extent that non-payment thereof is
permitted by
Section 7.7
, provided that no notice of lien has been filed or recorded under
the Code or any other Requirement of Law;
(d) carriers, warehousemens, mechanics, landlords, materialmens, repairmens or other
similar Liens arising in the ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges or deposits
required in the ordinary course of business in connection with workers compensation, unemployment
insurance and other social security legislation;
(f) Liens on the property of the Company or any Subsidiary securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) surety bonds (excluding appeal bonds and other bonds posted in
58
connection with court proceedings or judgments) and (iii) other non-delinquent obligations of
a like nature; in each case incurred in the ordinary course of business, provided all such Liens in
the aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens and liens securing
contingent obligations on appeal bonds and other bonds posted in connection with court proceedings
or judgments, provided that all such liens in the aggregate at any time outstanding for the Company
and its Subsidiaries do not exceed $10,000,000 unless, in the case of judgment and judicial
attachment liens, the enforcement of such liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business which, individually or in the aggregate, do not materially detract from
the value of the property subject thereto or interfere with the ordinary conduct of the businesses
of the Company and its Subsidiaries;
(i) purchase money security interests on any property acquired or held by the Company or
its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such property;
provided
that (i) any such Lien attaches to such property concurrently with or within 90 days after the
acquisition thereof, (ii) such Lien attaches solely to the property so acquired in such
transaction, (iii) the principal amount of the debt secured thereby does not exceed 100% of the
cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all
such purchase money security interests shall not at any time exceed $10,000,000;
(j) Liens securing obligations in respect of capital leases on assets subject to such
leases, provided that such capital leases are otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common law provision relating to
bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution;
provided
that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by the FRB, and (ii)
such deposit account is not intended by the Company or any Subsidiary to provide collateral to the
depository institution;
(l) Liens arising in connection with Securitization Transactions;
provided
that
the aggregate investment or claim held at any time by all purchasers, assignees or other
transferees of (or of interests in) receivables and other rights to payment in all Securitization
Transactions shall not exceed $25,000,000; and
(m) other Liens securing Indebtedness not at any time exceeding in the aggregate
$20,000,000.
8.3
Disposition of Assets
. The Company shall not, and shall not permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose
of (whether in one or a series of transactions) any property (including accounts and notes
receivable, with or without recourse) or enter into any agreement to do any of the foregoing,
except:
59
(a) dispositions of inventory, or used, worn-out or surplus equipment, or the sale of sale
rights, distribution rights, sales routes, territories or similar rights or assets, all in the
ordinary course of business;
(b) the sale, assignment or other transfer of accounts receivable, lease receivables or
other rights to payment pursuant to any Securitization Transaction;
provided
that the
aggregate investment or claim held at any time by all purchasers, assignees or other transferees of
(or of interests in) such receivables or other rights to payment shall not exceed $25,000,000;
(c) the sale of assets that are leased back to the Company or a Subsidiary, involving
amounts not to exceed $20,000,000 in the aggregate in any fiscal year; and
(d) dispositions not otherwise permitted hereunder which are made for fair market value;
provided
that (i) at the time of any disposition, no Event of Default shall exist or shall
result from such disposition and (ii) the aggregate value of all assets so disposed of by the
Company and its Subsidiaries on or after the Closing Date shall not exceed 20% of the greater of
(x) the total assets of the Company as of the Closing Date after giving effect to the Snyders
Merger or (y) the highest amount of total assets of the Company as shown on the Companys balance
sheet as of the end of any fiscal year ending after the Closing Date.
8.4
Consolidations and Mergers
. The Company shall not, and shall not permit any
Subsidiary to, merge, consolidate or amalgamate with or into, or convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
other Person, except:
(a) any Subsidiary may merge or amalgamate with the Company, provided that the Company
shall be the continuing or surviving corporation or, in the case of an amalgamation, the resulting
corporation shall have entered into all assumption agreements and provided all further assurances
as the Administrative Agent may reasonably require, or with any one or more Subsidiaries, provided
that if any transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation, or the continuing or
surviving corporation shall be a Wholly-Owned Subsidiary;
(b) any Subsidiary may sell all or substantially all of its assets (upon voluntary
liquidation or otherwise), to the Company or another Wholly-Owned Subsidiary; and
(c) any merger, amalgamation, consolidation or disposition in connection with a
transaction permitted by
Section 8.3
or an Acquisition permitted by
Section 8.5
.
8.5
Loans and Investments
. The Company shall not, and shall not permit any
Subsidiary to, purchase or acquire, or make any commitment to purchase or acquire, any capital
stock, equity interest or obligations or other securities of, or any interest in, any Person, or
make or commit to make any Acquisition, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in any Person (including any Affiliate of
the Company)(any of the foregoing an
Investment
), except for:
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(a) Investments held by the Company or any Subsidiary in the form of cash equivalents or
short term marketable securities;
(b) extensions of credit in the nature of accounts receivable or notes receivable arising
from the sale or lease of goods or services in the ordinary course of business;
(c) Investments by the Company in any of its Subsidiaries or by any of its Subsidiaries to
another of its Subsidiaries;
(d) other Investments (including those incurred in order to consummate Acquisitions not
otherwise prohibited herein),
provided
that no Event of Default or Unmatured Event of
Default exists or will result therefrom;
(e) Investments constituting Permitted Swap Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;
(f) pledges or deposits required in the ordinary course of business in connection with
workmens compensation, unemployment insurance and other social security legislation;
(g) advances, loans or extensions of credit to suppliers in the ordinary course of
business by the Company and its Subsidiaries;
(h) advances, loans or extensions of credit in the ordinary course of business by the
Company and its Subsidiaries to employees of the Company and its Subsidiaries;
(i) repurchases by the Company of its common stock to the extent permitted by
Section
8.10
;
(j) loans to an employee stock ownership plan established by the Company, the proceeds of
which are used solely to purchase stock of the Company; and
(k) the Snyders Merger.
8.6
Limitation on Subsidiary Indebtedness
. The Company shall not permit its
Subsidiaries to create, incur, assume or suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, other than:
(a) Indebtedness owing to the Company or another Subsidiary;
(b) Indebtedness under this Agreement;
(c) Indebtedness under the Existing Credit Agreement;
(d) Indebtedness of Subsidiaries with respect to loans to independent distributors of
products of the Company and its Subsidiaries in an aggregate amount not at any time exceeding
(i) during the period from the Closing Date through May 31, 2011, $60,000,000,
61
(ii) during the period
from June 1, 2011 through the first anniversary of the Closing Date, $30,000,000 and (ii)
thereafter, $5,000,000;
(e) Indebtedness of the Company in respect of the Existing Snyders Notes; and
(f) other Indebtedness at any time outstanding in an aggregate amount not at any time
exceeding the remainder of (i) $30,000,000 minus (ii) to the extent not constituting Indebtedness,
obligations of its Subsidiaries in respect of Securitization Transactions to the extent of the
aggregate investment or claim held at any time by purchasers, assignees or other transferees of (or
of interests in) receivables and other rights to payment in Securitization Transactions.
8.7
Transactions with Affiliates
. The Company shall not, and shall not permit any
Subsidiary to, enter into any transaction with any Affiliate of the Company (other than the Company
or a Subsidiary), except upon fair and reasonable terms no less favorable to the Company or such
Subsidiary than would obtain in a comparable arms-length transaction with a Person not an
Affiliate of the Company or such Subsidiary.
8.8
Use of Proceeds
. The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Credit Extension proceeds or any Letter of Credit, directly
or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of the Company or others incurred to purchase or carry Margin Stock or (iii) to extend
credit for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness
originally incurred for such purpose.
8.9
Swap Contracts
. The Company shall not, and shall not permit any Subsidiary
to, create, incur, assume or suffer to exist any obligations under Swap Contracts except for
Permitted Swap Obligations.
8.10
Restricted Payments
. Save and except for Special Dividend paid by the
Company in connection with the Snyders Merger, the Company shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its capital stock or (ii) purchase, redeem or
otherwise acquire for value, or permit any Subsidiary to purchase or otherwise acquire for value,
any shares of the Companys capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding (any of the foregoing, a
Restricted Payment
) ,
except that:
(a) the Company may declare and make dividend payments or other distributions payable
solely in its common stock;
(b) the Company may purchase, redeem or otherwise acquire shares of its common stock or
warrants or options to acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock; and
(c) so long as (1) no Event of Default or Unmatured Event of Default exists or would
result therefrom and (2) the Companys consolidated stockholders equity, after giving effect
thereto, is not less than $200,000,000, the Company may (x) declare and pay cash
62
dividends to its
stockholders; and (y) purchase, redeem or otherwise acquire shares of its common stock or warrants
or options to acquire such shares.
8.11
ERISA
. The Company shall not, and shall not permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan which has resulted or could reasonably be expected to result in
liability of the Company in an aggregate amount in excess of $10,000,000; or (b) engage in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
8.12
Change in Business
. The Company shall not, and shall not suffer or permit
any Subsidiary to, engage in any material line of business substantially different from those lines
of business carried on by the Company and its Subsidiaries on the date hereof.
8.13
Accounting Changes
. The Company shall not, and shall not permit any
Subsidiary to, make any significant change in accounting treatment or reporting practices, except
as required by GAAP.
8.14
Burdensome Agreements
. The Company shall not, and shall not permit any
Subsidiary to, enter into any Contractual Obligation (other than any other Loan Document) that
(a) limits the ability (i) of any Subsidiary to make Restricted Payments to the Company or to
another Subsidiary or to otherwise transfer property to the Company or another Subsidiary, (ii) of
any Subsidiary to incur any Guaranty Obligation with respect to the Indebtedness of the Company or
(iii) of the Company or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person,
provided
that this
clause (a)(iii)
shall not prohibit (x)
any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under
Section 8.2(i)
or
(j)
so long as such negative pledge relates solely to the
property financed by or the subject of such Indebtedness, (y) any provision of the Existing
Snyders Notes that is substantially similar to
Section 8.2
or (z) customary non-assignment
clauses in leases, licenses and similar agreements arising in the ordinary course of business; or
(b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person;
provided
that this
clause (b)
shall
not apply to the Existing Snyders Notes or the Existing Credit Agreement.
ARTICLE IX
EVENTS OF DEFAULT
9.1
Event of Default
. Any of the following shall constitute an Event of
Default:
(a)
Non-Payment
. The Company fails to pay, (i) when and as required to be paid
herein, any amount of principal of any Loan or of any L/C Obligation, or (ii) within three Business
Days after the same becomes due, any interest, fee or any other amount payable hereunder or under
any other Loan Document.
(b)
Representation or Warranty
. Any representation or warranty by the Company or
any Subsidiary made or deemed made herein or in any other Loan Document, or
63
which is contained in
any certificate, document or financial or other statement by the Company, any Subsidiary or any
Responsible Officer furnished at any time under this Agreement or under
any other Loan Document, is incorrect in any material respect on or as of the date made or
deemed made.
(c)
Specific Defaults
. The Company fails to perform or observe any term, covenant
or agreement contained in any of
subsection 7.3(a)
,
Section 8.1
,
8.2
,
8.3
,
8.4
,
8.8
,
8.11
or
8.13
.
(d)
Other Defaults
. The Company fails to perform or observe any other term or
covenant contained in this Agreement or any other Loan Document, and such failure shall continue
unremedied for a period of 30 days after the date upon which written notice thereof is given to the
Company by the Administrative Agent or any Lender.
(e)
Cross-Default
. The Company or any Subsidiary (A) fails to make any payment in
respect of any Material Financial Obligations when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise); or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition shall exist, under any agreement
or instrument relating to any such Material Financial Obligations, if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such Material Financial
Obligations or beneficiary or beneficiaries of such Material Financial Obligations (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such Material
Financial Obligations to become due and payable prior to its stated maturity, or such Material
Financial Obligations to become payable or cash collateral in respect thereof to be demanded.
(f)
Insolvency; Voluntary Proceedings
. The Company or any Subsidiary (i) ceases
or fails to be solvent, or generally fails to pay, or admits in writing its inability to pay, its
debts as they become due, subject to applicable grace periods, if any, whether at stated maturity
or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate
or authorize any of the foregoing.
(g)
Involuntary Proceedings
. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Company or any Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process is issued or levied against a substantial part of the
Companys or any Subsidiarys properties, and such proceeding or petition shall not be dismissed,
or such writ, judgment, warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 60 days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding with respect to the Company or such Subsidiary; or (iii) the Company or any Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee
in possession (or agent therefor), or other similar Person for itself or a substantial portion of
its property or business.
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(h)
ERISA; Canadian Plans
. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in
liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of $10,000,000; (ii) a contribution failure shall
occur with respect to a Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA; (iii) the aggregate amount of Unfunded Pension Liability among all Pension Plans at any time
exceeds $10,000,000; (iv) the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period (or any period during which (x) the Company is permitted
to contest its obligation to make such payment without incurring any liability (other than
interest) or penalty and (y) the Company is contesting such obligation in good faith and by
appropriate proceedings), any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA or any contribution obligation under Section 4243 of ERISA, in each case
under a Multiemployer Plan in an aggregate amount in excess of $10,000,000; or (v) any Person shall
institute steps to terminate a Canadian Plan if as a result of such termination, the Company or any
Canadian Subsidiary could be required to make a contribution to such Canadian Plan, or could incur
a liability or obligation to such Canadian Plan, in excess of $5,000,000 (or the equivalent
thereof).
(i)
Judgments
. One or more non-interlocutory judgments, non-interlocutory orders,
decrees or arbitration awards is entered against the Company or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent third-party insurance as to which
the insurer does not dispute coverage) as to any single or related series of transactions,
incidents or conditions of $30,000,000 or more, and the same shall remain unvacated and unstayed
pending appeal for a period of 30 days after the entry thereof, with payment thereof being then
due.
(j)
Change of Control
. Any Change of Control occurs.
9.2
Remedies
. If any Event of Default occurs, the Administrative Agent shall, at
the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make any Credit Extension (including any
obligation of each Issuing Lender to Issue any Letter of Credit) to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is or at any time
thereafter may become available for drawing under all outstanding Letters of Credit (whether or not
any beneficiary shall have presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of Credit) to be immediately due and payable,
and declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be
immediately due and payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company;
(c) demand that the Company immediately provide Cash Collateral to the Administrative
Agent in an amount equal to the maximum amount then available to be drawn
65
under all Letters of
Credit, whereupon the Company shall become immediately obligated to provide such Cash Collateral;
and
(d) exercise on behalf of itself and the Lenders all other rights and remedies available
to it and the Lenders under the Loan Documents or Applicable Law;
provided
,
however
, that upon the occurrence of any event specified in
subsection (f)
or
(g)
of
Section 9.1
(in the case of
clause (i)
of
subsection (g)
, upon the expiration of the 60-day period mentioned therein), the obligation
of each Lender to make Credit Extensions (including any obligation of each Issuing Lender to Issue
Letters of Credit) shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all other Obligations shall automatically become due and payable, the Company shall
automatically become obligated to provide Cash Collateral in the amounts set forth in
clause
(c)
above without further act of the Administrative Agent, the Issuing Lender or any other
Lender.
9.3
Rights Not Exclusive
. The rights provided for in this Agreement and the other
Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1
Appointment and Authorization
. (a) Each Lender hereby irrevocably (subject
to
Section 10.8
) appoints, designates and authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in
any other Loan Document, the Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality
of the foregoing sentence, the use of the term agent in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely
as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and the Company
shall have rights as a third party beneficiary of any of such provisions.
(b) Each Issuing Lender shall act on behalf of the Lenders with respect to any Letters of
Credit Issued by it and the documents associated therewith until such time and except for so long
as the Administrative Agent may agree at the request of the Required Lenders to act
66
for such Issuing Lender with respect thereto;
provided
,
however
, that each Issuing Lender
shall have all of the benefits and immunities (i) provided to the Administrative Agent in this
Article X
with respect to any acts taken or omissions suffered by such Issuing Lender in
connection with
Letters of Credit Issued by it or proposed to be Issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as if the term
Agent, as used in this
Article X
, included such Issuing Lender with respect to such acts
or omissions, and (ii) as additionally provided in this Agreement with respect to such Issuing
Lender.
10.2
Delegation of Duties
. The Administrative Agent may execute any of its duties
under this Agreement or any other Loan Document by or through sub-agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects with reasonable care. The Administrative Agent and
any such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as the Administrative Agent.
10.3
Exculpatory Provisions
. The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether
an Event of Default or Unmatured Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents),
provided
that no Agent shall be required to
take any action that, in its opinion or the opinion of its counsel, may expose the Administrative
Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, nor shall be liable for the failure to disclose, any information relating to
the Company or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity. None of the Agent-Related
Persons shall (i) be liable to any Lender for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (a) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as such Agent-Related Person shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections
11.1
and
9.2
) or (b) in the absence of its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made in or in connection with this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document
67
referred to or provided for
in, or received by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other
agreement, instrument or document, or for any failure of the Company or any other party to any
Loan Document to perform its obligations hereunder or thereunder, or the satisfaction of any
condition set forth in
Article V
or elsewhere herein, other than, in the case of the
Administrative Agent, to confirm receipt of items expressly required to be delivered to the
Administrative Agent. No Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Companys Subsidiaries or Affiliates.
10.4
Reliance by the Administrative Agent
. (a) The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement
or other document or other writing (including any electronic message, Internet or intranet website
posting or other distribution) or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent accountants and other experts selected by
the Administrative Agent and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Credit Extension or the issuance of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the
Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Lender prior to the making of such Credit Extension or the
issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Company), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section
5.1
, each Lender that has executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lender.
10.5
Notice of Default
. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default, except
with respect to defaults in the payment of principal, interest and fees required to be paid
68
to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Company referring to this Agreement, describing such
Event of Default or Unmatured Event of Default and stating that such notice is a
notice of default. If the Administrative Agent receives such a notice, the Administrative
Agent will notify the Lenders of its receipt of such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default as may be requested
by the Required Lenders in accordance with this
Article X
;
provided
,
however
, that unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.6
Credit Decision
. Each Lender acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Company and its Subsidiaries, shall be
deemed to constitute any representation or warranty by any Agent-Related Person to any Lender.
Each Lender represents to the Administrative Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and its Subsidiaries,
and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the Company hereunder. Each
Lender also represents that it will, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of the Company which may come into the possession of any
Agent-Related Person.
10.7
Agent in Individual Capacity
. Bank of America and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Company and its Subsidiaries and Affiliates as though Bank of America
were not the Administrative Agent or an Issuing Lender hereunder and without notice to or consent
of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding the Company or its Affiliates (including information
that may be subject to confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Administrative Agent shall not be under any obligation to provide such
information to them. With respect to their respective Credit Extensions and Commitments, Bank of
America and its Affiliates shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Administrative Agent or an Issuing
Lender.
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10.8
Successor Agent
. The Administrative Agent may, and at the request of the
Required Lenders shall, resign as the Administrative Agent upon 30 days notice to the Lenders.
If the Administrative Agent resigns under this Agreement, the Required Lenders (with, so long
as no Event of Default exists, the consent of the Company, which shall not be unreasonably withheld
or delayed) shall appoint from among the Lenders or Affiliates of Lenders a successor
Administrative Agent for the Lenders, which successor shall be a bank with an office in the United
States or an Affiliate of any such bank with an office in the United States. Upon the acceptance
of its appointment as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term Administrative Agent shall mean such
successor agent and the retiring Administrative Agents appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative Agents resignation
hereunder as the Administrative Agent, the provisions of this
Article X
and
Sections
11.4
and
11.5
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Administrative Agent under this Agreement. If no successor agent has
accepted appointment as the Administrative Agent by the date which is 30 days following a retiring
Administrative Agents notice of resignation, then the retiring Administrative Agent may on behalf
of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Company and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (b) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
The fees payable by the Company to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Company and such successor.
Notwithstanding the foregoing, however, Bank of America may not be removed as the Administrative
Agent at the request of the Required Lenders unless Bank of America shall also simultaneously be
replaced as an Issuing Lender hereunder pursuant to documentation in form and substance
reasonably satisfactory to Bank of America.
10.9
Withholding Tax
. (a) If any Lender is a foreign corporation, partnership
or trust within the meaning of the Code and such Lender claims exemption from, or a reduction of,
U.S. withholding tax under Sections 1441 or 1442 of the Code, such Lender agrees with and in favor
of the Administrative Agent, to deliver to the Administrative Agent:
(i) if such Lender claims an exemption from, or a reduction of, withholding tax
under a United States tax treaty, properly completed IRS Form W-8BEN (or any successor
forms) before the payment of any interest in the first calendar year and before the payment
of any interest in each third succeeding calendar year during which interest may be paid
under this Agreement;
(ii) if such Lender claims that interest paid under this Agreement is exempt from
United States withholding tax because it is effectively connected with a United States trade
or business of such Lender, two properly completed and executed copies of IRS Form W-8ECI
(or any successor form) before the payment of any interest
70
is due in the first taxable year
of such Lender and in each succeeding taxable year of such Lender during which interest may
be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code or other laws of
the United States as a condition to exemption from, or reduction of, United States
withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding tax under a United
States tax treaty by providing IRS Form W-8BEN (or any successor form) and such Lender sells,
assigns, grants a participation in, or otherwise transfers all or part of the Obligations of the
Company to such Lender, such Lender agrees to notify the Administrative Agent of the percentage
amount in which it is no longer the beneficial owner of Obligations of the Company to such Lender.
To the extent of such percentage amount, the Administrative Agent will treat such Lenders IRS Form
W-8BEN (or any successor form) as no longer valid.
(c) If any Lender claiming exemption from United States withholding tax by filing IRS Form
W-8ECI (or any successor form) with the Administrative Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the Obligations of the Company to such Lender, such
Lender agrees to undertake sole responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable withholding tax, the
Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to
the applicable withholding tax after taking into account such reduction. If the forms or other
documentation required by
subsection (a)
of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to the applicable
withholding tax.
(e) If the IRS or any other Governmental Authority of the United States or any other
jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form was not delivered or
was not properly executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Lender shall indemnify the Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Lenders under this subsection shall
survive the payment of all Obligations and the resignation or replacement of the Administrative
Agent.
10.10
Other Agents
. Anything herein to the contrary notwithstanding, none of the
Lead Arrangers, the Syndication Agents or the Documentation Agents listed on the cover page hereof
71
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as a Lender hereunder.
ARTICLE XI
MISCELLANEOUS
11.1
Amendments and Waivers
. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent with respect to any departure by the Company
or any applicable Subsidiary therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by the Administrative Agent at the written request of the
Required Lenders) and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given;
provided
that no such waiver, amendment or consent shall, unless in writing
and signed by all Lenders and the Company and acknowledged by the Administrative Agent, do any of
the following:
(a) waive any condition set forth in
Section 5.1
without the written consent of
each Lender;
(b) increase or extend the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to
Section 9.2
);
(c) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any other Loan Document;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
reduce any fees (other than the fees referred to in
subsection 2.9(a)
or
subsections
3.8(c)
and
(d))
or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
provided
that only
the consent of the Required Lenders shall be necessary to waive any obligation of the Company to
pay interest or letter of credit fees at a rate equal to the sum of the otherwise applicable rate
plus
2% after an Event of Default;
(e) change the percentage of the Commitments or of the aggregate unpaid principal amount
of the Loans which is required for the Lenders or any of them to take any action hereunder; or
(f) change any provision of this Section or the definition of Required Lenders or any
other provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
and
provided
,
further
, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of such Issuing Lender under this
Agreement or any L/C-Related Document relating to any Letter of Credit Issued or to be Issued by it
and (ii) no
72
amendment, waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Required Lenders or all Lenders, as the case may be, affect the rights or
duties of the Administrative Agent under this Agreement or any other Loan Document.
Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove
any amendment, waiver or consent hereunder (and any amendment, waiver or consent that by its terms
requires the consent of all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of a Defaulting
Lender may not be increased or extended without the consent of such Lender and (y) any waiver,
amendment or modification requiring the consent of all Lenders or each affected Lender that by its
terms affects any Defaulting Lender more adversely than other affected Lenders shall require the
consent of such Defaulting Lender.
11.2
Notices; Effectiveness; Electronic Communications
. (a)
Notices
Generally
. Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:
(i) if to the Company, the Administrative Agent or Bank of America as Issuing
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on
Schedule 11.2
; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).
(b)
Electronic Communications
. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided
that the foregoing shall not apply to notices to any Lender pursuant to
Article II
or
III
if such Lender has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the Company
may, in their respective discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided
that
approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested
73
function, as available,
return e-mail or other written acknowledgement),
provided
that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
(c)
The Platform
. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agents or any of its
Related Parties (collectively, the
Agent Parties
) have any liability to the Company, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Companys or the Administrative Agents
transmission of Borrower Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or willful misconduct
of the Administrative Agent Party; provided, however, that in no event shall any Agent Party have
any liability to the Company, any Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).
(d)
Change of Address, Etc
. Each of the Company, the Administrative Agent, and
the Issuing Lenders may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier or telephone number for notices and other communications hereunder by notice to
the Company, the Administrative Agent and the Issuing Lenders. In addition, each Lender agrees to
notify the Administrative Agent from time to time to ensure that the Administrative Agent has on
record (i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(e)
Reliance by Administrative Agent and Lenders
. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic requests for
Credit Extensions) purportedly given by or on behalf of the Company even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Company shall indemnify the Administrative Agent, each
Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly
74
given by or on behalf of the
Company. All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.
11.3
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
11.4
Expenses; Indemnity; Damage Waiver
. (a)
Costs and Expenses
. The
Company shall pay (i) all customary and reasonable out-of-pocket expenses incurred by the
Administrative Agent and their Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Lenders in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out of pocket expenses incurred by the
Administrative Agent, any Lender or the Issuing Lenders (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the Issuing Lenders), in
connection with the enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in connection with
Credit Extensions made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Credit
Extensions or Letters of Credit.
(b)
Indemnification by the Company
. The Company shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each Issuing Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
Indemnitee
) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable and documented fees, charges
and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Company arising out of, in connection with, or
as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Credit Extension or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by an Issuing Lender to honor a demand for payment under a Letter
of Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or
any Environmental Claims related in any way to the Company or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding
75
relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Company or any of the Companys directors, shareholders or creditors, and regardless of
whether any Indemnitee is a party thereto;
provided
that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the Company against an
Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or under any other
Loan Document, if the Company has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c)
Reimbursement by Lenders
. To the extent that the Company for any reason fails
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
it to the Administrative Agent (or any sub-agent thereof), an Issuing Lender or any Related Party
of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any
such sub-agent), such Issuing Lender or such Related Party, as the case may be, such Lenders Pro
Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount,
provided
that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or an Issuing Lender in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or such Issuing Lender in connection with such capacity.
(d)
Waiver of Consequential Damages, Etc
. To the fullest extent permitted by
applicable law, the Company shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Credit Extension or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(e)
Payments
. All amounts due under this Section shall be payable not later than
ten Business Days after demand therefor.
(f)
Survival
. The agreements in this Section shall survive the resignation of any
Administrative Agent and any Issuing Lender, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.
76
11.5
Payments Set Aside
. To the extent that the Company makes a payment to the
Administrative Agent or the Lenders, or the Administrative Agent or any Lender exercises its right
of set-off, and such payment or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in
its discretion) to be repaid to a trustee, a receiver or any other party, in connection with
any Insolvency Proceeding or otherwise, then (a) to the extent of such recovery the obligation or
part thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Administrative Agent.
11.6
Successors and Assigns
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Company may not assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of
Section 11.6(b)
, (ii) by way of participation in
accordance with the provisions of
Section 11.6(d)
, or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of
Section 11.6(f)
(and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Lenders and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this
Section 11.6(a)
,
participations in L/C Obligations) at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i)
Minimum Amounts
.
(A) in the case of an assignment of the entire remaining amount of any
Commitment of the Assigning Lender and the Credit Extensions at the time owing to it
in respect of such Commitment or in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Credit Extensions of the assigning
77
Lender subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if a Trade
Date is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000, in the case of any assignment in respect of the
Commitments, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Company otherwise consents (each such consent not to be unreasonably withheld or
delayed);
provided
,
however
, that concurrent assignments to members
of an Assignee Group and concurrent assignments from members of an Assignee Group to
a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee
Group) will be treated as a single assignment for purposes of determining whether
such minimum amount has been met;
(ii)
Proportionate Amounts
. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and obligations
under this Agreement with respect to the Credit Extensions or the Commitment assigned,
except that this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Commitments on a non-pro rata basis;
(iii)
Required Consents
. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Company (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has occurred
and is continuing at the time of such assignment or (2) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any Commitment if such assignment is to a Person that is not a Lender with a
Commitment of the same type, an Affiliate of such Lender or an Approved Fund with
respect to such Lender; and
(C) the consent of the Issuing Lenders (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding).
(iv)
Assignment and Assumption
. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500;
provided
,
however
,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
78
(v)
No Assignment to Company
. No such assignment shall be made to the
Company or any of the Companys Affiliates or Subsidiaries.
(vi)
No Assignment to Natural Persons
. No such assignment shall be made to
a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of
Article IV
and
Section 11.4
with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon request, the Company
(at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
Section 11.6(d)
.
(c)
Register
. The Administrative Agent, acting solely for this purpose as an
agent of the Company, shall maintain at the Administrative Agents Office a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Credit Extensions and L/C Obligations
owing to, each Lender pursuant to the terms hereof from time to time (the
Register
). The
entries in the Register shall be conclusive, and the Company, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Company and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice
to, the Company or the Administrative Agent, sell participations to any Person (other than a
natural person or the Company or any of the Companys Affiliates or Subsidiaries) (each, a
Participant
) in all or a portion of such Lenders rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Credit Extensions (including
such Lenders participations in L/C Obligations) owing to it);
provided
that (i) such
Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Company, the Administrative Agent, the Lenders and the Issuing Lenders shall continue to deal
solely and directly with such Lender in connection with such Lenders rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided
that
such agreement or instrument may provide that such Lender will not, without the
79
consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 11.1
that affects such Participant. Subject to subsection (e) of this Section, the
Company agrees that each Participant shall be entitled to the benefits of
Article IV
and
Section 11.1
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to
Section 11.6(a)
. To the extent permitted by law, each Participant
also
shall be entitled to the benefits of
Section 11.10
as though it were a Lender,
provided such Participant agrees to be subject to
Section 2.13
as though it were a Lender.
(e)
Limitations upon Participant Rights
. A Participant shall not be entitled to
receive any greater payment under
Section 4.1
or
4.4
than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Companys prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of
Section 4.1
unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Company, to comply with
Section 4.1(e)
as though it were a Lender.
(f)
Certain Pledges
. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
(g)
Electronic Execution of Assignments
. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
(h)
Resignation as Issuing Lender after Assignment
. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its Commitment and
Loans pursuant to
Section 11.6(a)
, Bank of America may, upon 30 days notice to the Company
and the Lenders, resign as Issuing Lender. In the event of any such resignation as Issuing Lender,
the Company shall be entitled to appoint from among the Lenders a successor Issuing Lender
hereunder;
provided
,
however
, that no failure by the Company to appoint any such
successor shall affect the resignation of Bank of America as Issuing Lender. If Bank of America
resigns as Issuing Lender, it shall retain all the rights, powers, privileges and duties of the
Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date
of its resignation as Issuing Lender and all L/C Obligations with respect thereto (including the
right to require the Lenders to make Base Rate Loans or fund risk participations in L/C Obligations
pursuant to
Article III
). Upon the appointment of a successor Issuing Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring Issuing Lender, and (b) the successor Issuing Lender shall issue letters of
80
credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to Bank of America to effectively assume the obligations of
Bank of America with respect to such Letters of Credit.
11.7
Treatment of Certain Information; Confidentiality
. Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Company and its obligations, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, any Lender, the Issuing Lender or any of their
respective Affiliates on a nonconfidential basis from a source other than the Company.
For purposes of this Section, Information means all information received from the Company or
any Subsidiary thereof relating to the Company or any Subsidiary thereof or their respective
businesses, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Company or any Subsidiary thereof.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Company or a Subsidiary, as the case may be,
(b) it has developed compliance procedures regarding the use of material non-public information and
(c) it will handle such material non-public information in accordance with applicable Law,
including Federal and state securities Laws.
11.8
Survival of Representations and Warranties
. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Event of Default
81
or Unmatured Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Credit
Extension or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding.
11.9
Set-off
. In addition to any rights and remedies of the Lenders provided by
law, if an Unmatured Event of Default under
subsection 9.1(a)
,
(f)
or
(g)
or any Event of Default exists, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being expressly waived by the Company to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other indebtedness at any time owing
by, such Lender to or for the credit or the account of the Company against any and all Obligations
owing to such Lender, now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other Loan Document and
although such Obligations may be contingent or unmatured. Each Lender agrees promptly to notify
the Company and the Administrative Agent after any such set-off and application made by such
Lender;
provided
that if a Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of
Section 2.16
and, pending such payment,
shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in reasonable detail the Obligations
owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each
Lender, the Issuing Lenders and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, the Issuing Lender
or their respective Affiliates may have. Each Lender and each Issuing Lender agrees to notify the
Company and the Administrative Agent promptly after any such setoff and application,
provided
,
however
, that the failure to give such notice shall not affect the
validity of such set-off and application.
11.10
Notification of Addresses, Lending Offices, Etc
. Each Lender shall notify
the Administrative Agent in writing of any change in the address to which notices to such Lender
should be directed, of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
11.11
Counterparts; Integration; Effectiveness
. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.1
, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
82
11.12
Severability
. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or any instrument or
agreement required hereunder.
11.13
No Third Parties Benefited
. This Agreement is made and entered into for the
sole protection and legal benefit of the Company, the Lenders, the Administrative Agent and the
Agent-Related Persons, and their permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
11.14
Governing Law and Jurisdiction
. (a) THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT
REGARD TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF; PROVIDED THAT THE PARTIES HERETO SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NORTH CAROLINA OR OF THE UNITED STATES FOR
THE WESTERN DISTRICT OF NORTH CAROLINA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NORTH CAROLINA LAW.
11.15
Waiver of Jury Trial
. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
83
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16
No Advisory or Fiduciary Responsibility
. In connection with all aspects of
each transaction contemplated hereby, the Company acknowledges and agrees
,
and acknowledges its
Affiliates understanding
,
that: (i) the credit facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document) are an arms-length
commercial transaction between the Company and its Affiliates, on the one hand, and the
Administrative Agent and the Lead Arrangers, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver
or other modification hereof or thereof); (ii) in connection with the process leading to such
transaction, the Administrative Agent and the Lead Arrangers each is and has been acting solely as
a principal and is not the financial advisor, agent or fiduciary, for the Company or any of its
respective Affiliates, stockholders, creditors or employees or any other Person; (iii) neither the
Administrative Agent nor any Lead Arranger has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto, including with respect to any amendment, waiver
or other modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or any Lead Arranger has advised or is currently advising the Company or any
of their respective Affiliates on other matters) and neither the Administrative Agent nor any Lead
Arranger has any obligation to the Company or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; (iv) the Administrative Agent and the Lead Arrangers and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and its Affiliates, and neither the Administrative Agent nor any Lead Arranger
has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) neither the Administrative Agent nor any Lead Arranger has provided and will
not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other
Loan Document) and the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it has deemed appropriate. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that it may have against the Administrative Agent and the Lead
Arrangers with respect to any breach or alleged breach of agency or fiduciary duty.
11.17
USA PATRIOT Act Notice
. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Company that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the Act), it is required to obtain, verify
and record information that identifies the Company, which information includes the name and address
of the Company and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Company in accordance with the Act.
11.18
Judgment
. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under any other Loan Document in one currency into
another
84
currency, the rate of exchange used shall be that at which in accordance with normal and
customary banking procedures the Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is given. The obligation
of the Company in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under any other Loan Document shall, notwithstanding any judgment in a currency (the
Judgment Currency
) other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
Agreement
Currency
), be discharged only to the extent that on the Business Day following receipt by the
Administrative Agent or such Lender of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent or such Lender may in accordance with normal and customary banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Administrative Agent or such
Lender in the Agreement Currency, the Company agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Administrative Agent or such Lender against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent or such Lender in such currency, the Administrative Agent or such Lender
agrees to return the amount of any excess to the Company (or to any other Person who may be
entitled thereto under Applicable Law).
11.19
Entire Agreement
. This Agreement, together with the other Loan Documents
(and the Fee Letter referred in
subsection 2.9(a)
), embodies the entire agreement and
understanding among the Company, the Lenders and the Administrative Agent, and supersedes all prior
or contemporaneous agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
11.20
Waiver of Notice under Existing Credit Agreement
. The Lenders hereunder
that are also Lenders under the Existing Credit Agreement (which constitute Required Lenders
under and as defined in the Existing Credit Agreement) waive any requirement for notice of
termination of the U.S. Revolving Credit Commitments and the Canadian Commitments (each as defined
in the Existing Credit Agreement) so long as such notice is received by the Administrative Agent no
sooner than three Business Days prior to, and not later than 10:00 a.m. Charlotte time, on the
Closing Date.
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.
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LANCE, INC. (name to be changed to Snyders-Lance, Inc.)
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By:
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/s/ Rick D. Puckett
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Title:
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Executive Vice President, Chief Financial Officer,
Treasurer & Secretary
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Credit Agreement
Signature Page
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BANK OF AMERICA, N.A, as Administrative Agent
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By:
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/s/ illegible
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Title: Senior Vice President
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BANK OF AMERICA, N.A., as an Issuing Lender and a Lender
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By:
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/s/ illegible
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Title: Senior Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and a Lender
|
|
|
By:
|
/s/ illegible
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Syndication Agent and a Lender
|
|
|
By:
|
/s/ illegible
|
|
|
|
Title: Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent and a Lender
|
|
|
By:
|
/s/ illegible
|
|
|
|
Title: Senior Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
WELLS FARGO BANK, N.A., as Documentation Agent and a Lender
|
|
|
By:
|
/s/ Scott Santa Cruz
|
|
|
|
Title: Director
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
COBANK, ACB, as a Lender
|
|
|
By:
|
/s/ illegible
|
|
|
|
Title: Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
CITIZENS BANK OF PENNSYLVANIA, as a Lender
|
|
|
By:
|
/s/ Curt S. Lang
|
|
|
|
Title: Vice President
|
|
|
|
|
|
|
Credit Agreement
Signature Page
|
|
|
|
|
|
ROYAL BANK OF CANADA, as a Lender
|
|
|
By:
|
/s/ Juan Flores
|
|
|
|
Title: Authorized Signatory
|
|
|
|
|
|
|
Credit Agreement
Signature Page
SCHEDULE 2.1
REVOLVING CREDIT COMMITMENTS
AND REVOLVING PRO RATA SHARES
|
|
|
|
|
|
|
|
|
Lender
|
|
Commitment
|
|
Pro Rata Share
|
Bank of America, N.A.
|
|
$
|
45,000,000
|
|
|
|
16.9811320755
|
%
|
JPMorgan Chase Bank, N.A.
|
|
$
|
45,000,000
|
|
|
|
16.9811320755
|
%
|
Manufacturers and Traders Trust Company
|
|
$
|
45,000,000
|
|
|
|
16.9811320755
|
%
|
Branch Banking and Trust Company
|
|
$
|
35,000,000
|
|
|
|
13.2075471698
|
%
|
Wells Fargo Bank, N.A.
|
|
$
|
35,000,000
|
|
|
|
13.2075471698
|
%
|
CoBank, ACB
|
|
$
|
20,000,000
|
|
|
|
7.5471698113
|
%
|
Citizens Bank of Pennsylvania
|
|
$
|
20,000,000
|
|
|
|
7.5471698113
|
%
|
Royal Bank of Canada
|
|
$
|
20,000,000
|
|
|
|
7.5471698113
|
%
|
TOTAL
|
|
$
|
265,000,000
|
|
|
|
100.0000000000
|
%
|
Credit Agreement
Schedules
SCHEDULE 5.1
SNYDERS MERGER
Albert A. Ward, Jr. v. Lance, Inc., David V. Singer, W.J. Prezzano, James W. Johnston,
S. Lance Van Every, Dan C. Swander, William R. Holland, Jeffrey A. Atkins, J.P. Bolduc,
Isaiah Tidwell and Snyders of Hanover, Inc.
, File No. 10-CVS-16553 in the Superior
Court of Mecklenburg County, North Carolina, filed on August 5, 2010. The case was
designated a mandatory complex business case and assigned to the North Carolina Business
Court on September 1, 2010. The parties have reached a settlement for an amount less than
$100,000 and formal dismissal is pending..
Credit Agreement
Schedules
SCHEDULE 6.5
LITIGATION
1. See items Schedule 5.1.
Credit Agreement
Schedules
SCHEDULE 6.7
ERISA
None.
Credit Agreement
Schedules
SCHEDULE 6.11
FINANCIAL CONDITION
None
Credit Agreement
Schedules
SCHEDULE 6.12
ENVIRONMENTAL MATTERS
None
Credit Agreement
Schedules
SCHEDULE 6.16
SUBSIDIARIES OF LANCE, INC.
Part (a)
|
|
|
Name of Subsidiary
|
|
Jurisdiction of Formation
|
Archer Assets, LLC
|
|
North Carolina
|
|
|
|
Brent and Sams Inc.
|
|
Arkansas
|
|
|
|
Cape Cod Potato Chip Company, LLC
|
|
Massachusetts
|
|
|
|
Caronuts, Inc.
|
|
North Carolina
|
|
|
|
Fresno Ventures, Inc.
|
|
North Carolina
|
|
|
|
Lance Mfg. LLC
|
|
North Carolina
|
|
|
|
Lanhold Investments, Inc.
|
|
Delaware
|
|
|
|
Lima Merger Corp.
|
|
Pennsylvania
|
|
|
|
North State Cookies, LLC
|
|
North Carolina
|
|
|
|
Vista Bakery, Inc.
|
|
North Carolina
|
|
|
|
Tamming Foods Ltd.
|
|
Ontario
|
|
|
|
Snyders Of Hanover, Inc.
|
|
Pennsylvania
|
|
|
|
G and A Snack Distributing, Inc.
|
|
California
|
|
|
|
Grande Foods
|
|
California
|
|
|
|
Krunchers, Inc.
|
|
Delaware
|
|
|
|
Melisi Snack Foods, Inc.
|
|
Connecticut
|
|
|
|
Michaud Distributors
|
|
Maine
|
|
|
|
Patriot Snacks, L.L.C.
|
|
Massachusetts
|
|
|
|
Patriot Snacks Real Estate, LLC
|
|
Delaware
|
Credit Agreement
Schedules
|
|
|
Name of Subsidiary
|
|
Jurisdiction of Formation
|
Snyders of Delaware, Inc.
|
|
Delaware
|
|
|
|
Snyders of Hanover Manufacturing, Inc.
|
|
Pennsylvania
|
|
|
|
Snyders of Hanover Sales Company, Inc.
|
|
Pennsylvania
|
|
|
|
Snyders of Hanover Snacks, Inc.
|
|
Arizona
|
|
|
|
SOH Capital, LLC
|
|
Pennsylvania
|
|
|
|
SOH Distribution Company, Inc.
|
|
Delaware
|
|
|
|
SOH Health Services, Inc.
|
|
Delaware
|
|
|
|
SOH IP Company, Inc.
|
|
Arizona
|
|
|
|
SOH Real Estate Investment, LLC
|
|
Delaware
|
|
|
|
SOH Transportation, LLC
|
|
Pennsylvania
|
|
|
|
Thompson Distributing, Inc.
|
|
Missouri
|
Part (b)
Late July Snacks LLC
Credit Agreement
Schedules
SCHEDULE 8.2
PERMITTED LIENS
Security interest of TD Bank, N.A., f/k/a TD Bank North, N.A., f/k/a Banknorth, N.A., successor by
merger to Peoples Heritage Bank, N.A. (
TD Bank
) securing obligations in a principal
amount not exceeding $1,300,000 pursuant to a Revolving Equipment Line of Credit between TD Bank
and Michaud Distributors dated April 12, 2001, and amended November 9, 2009 and related loan
documents.
Mortgage, Security Agreement and Fixture Filing granted to Manufacturers and Traders Trust Company
by Patriot Snacks Real Estate, LLC with respect to the property located at 2 Annette Road,
Foxborough, MA securing a $2,915,184 Commercial Term Note dated January 12, 2007.
Security interest of Webster Bank, National Association (
Webster Bank
) securing
obligations in a principal amount not exceeding $1,000,000 pursuant to a Commercial Term Note
issued to Webster Bank, N.A. by Melisi Snack Foods, Inc. dated December 12, 2008 and related loan
documents.
Security interest in notes receivable payable by independent operators granted to TD Bank securing
obligations in a principal amount not exceeding $600,000 pursuant to a Commercial Term Note issued
to TD Bank by Michaud Distributors dated January 2, 2007 and related loan documents.
Security interest in inventory, chattel paper, accounts, equipment and general intangibles granted
to TD Bank securing obligations in a principal amount not exceeding $3,300,000 pursuant to a
Commercial Term Note issued to TD Bank by Michaud Distributors dated March 1, 2007 and related loan
documents.
Mortgage, Security Agreement and Fixture Filing granted to Manufacturers and Traders Trust Company
by Patriot Snacks Real Estate, LLC with respect to the property located at 2 Annette Road,
Foxborough, MA securing a $1,238,683 Commercial Term Note dated November 25, 2008.
Security interest in marketable securities granted to Wells Fargo Bank, N.A. (successor to Wachovia
Bank, NA) securing obligations in a principal amount not exceeding $10,000,000 pursuant to a
Commercial Term Note issued to Wells Fargo Bank, N.A. by Snyders of Hanover Mfg., Inc. dated
September 22, 2005 and related loan documents.
Credit Agreement
Schedules
SCHEDULE 11.2
EURODOLLAR AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
LANCE, INC
.
Mr. Rick D. Puckett
Executive Vice President, Chief Financial Officer,
Treasurer and Secretary
13024 Ballantyne Corporate Place, Suite 900
Charlotte, North Carolina 28277
Telephone: (704) 557-8021
Facsimile: (704) 554-5586
BANK OF AMERICA, N.A
.,
as Administrative Agent
Bank of America, N.A.
1455 Market Street
CA5-701-05-19
San Francisco, CA 94404
Attention: Joan Mok
Telephone: 415-436-3496
Facsimile: 415-503-5085
Administrative Agents Payment Office:
Bank of America, N.A.
Building B, 2001 Clayton Road
CA4-702-02-25
Concord, CA 94520
Attention: Tish Johnson
Telephone: 925-675-8398
Facsimile: 888-969-3312
E-mail: tish.johnson@baml.com
For Credit To:
Account No.: #
ABA#
Reference: Lance, Inc.
Credit Agreement
Schedules
BANK OF AMERICA, N.A
.,
as an Issuing Lender and as a Lender
Bank of America, N.A.
Building B, 2001 Clayton Road
CA4-702-02-25
Concord, CA 94520
Attention: Tish Johnson
Telephone: 925-675-8398
Facsimile: 888-969-3312
E-mail: tish.johnson@baml.com
Notices (other than borrowing notices and Notices of
Conversion/Continuation):
Bank of America, N.A.
540 W Madison Street
Chicago, IL 60661
Attention: William Sweeney
Telephone: 312-828-1843
Facsimile: 415-503-5027
Credit Agreement
Schedules
EXHIBIT A
FORM OF
NOTICE OF BORROWING
|
|
|
Date:
|
|
|
|
|
|
To:
|
|
Bank of America, National Association, as Administrative Agent under
the Credit Agreement, dated as of December 7, 2010 (as amended from
time to time, the
Credit Agreement
), among [Lance, Inc.]
[Snyders-Lance, Inc. (f/k/a Lance, Inc.)], various financial
institutions, and Bank of America, National Association, as
Administrative Agent.
|
Ladies and Gentlemen:
The undersigned, [Lance, Inc.] [Snyders-Lance, Inc. (f/k/a Lance, Inc.)] (the
Company
), refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing of Loans specified below:
1. The Business Day of the proposed Borrowing is
, ___
2. The Borrowing is to be comprised of [Base Rate] [Eurodollar Rate] Loans.
3. The aggregate amount of the proposed Borrowing is $
.
[4. The duration of the Interest Period for the Eurodollar Rate Loans included in the
Borrowing shall be _________ months.]
The Company certifies that the following statements are true on the date hereof, and will be
true on the date of the proposed Borrowing, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) the representations and warranties contained in Article VI of the Credit Agreement
are true and correct in all material respects as though made on and as of such date (except
to the extent such representations and warranties expressly relate to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default has occurred and is continuing or
will result from such proposed Borrowing; and
-12-
(c) the proposed Borrowing will not cause the Total Outstandings to exceed the
Aggregate Commitment].
|
|
|
|
|
|
[LANCE, INC.][SNYDERS-LANCE, INC.]
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
-13-
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
|
|
|
Date:
|
|
|
|
|
|
To:
|
|
Bank of America, National Association, as Administrative Agent under
the Credit Agreement, dated as of December 7, 2010 (as amended from
time to time, the Credit Agreement), among [Lance, Inc.]
[Snyders-Lance, Inc. (f/k/a Lance, Inc.)], various financial
institutions, and Bank of America, National Association, as
Administrative Agent.
|
Ladies and Gentlemen:
The undersigned, [Lance, Inc.] [Snyders-Lance, Inc. (f/k/a Lance, Inc.)] (the
Company
), refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, with respect to the [conversion] [continuation] of the Loans specified herein, that:
1. The Conversion/Continuation Date is
,
.
2. The aggregate amount of the Loans to be [converted] [continued] is $
.
3. The Loans are to be [converted into] [continued as] [Eurodollar Rate] [Base Rate]
Loans.
[ 4. The duration of the Interest Period for the Eurodollar Rate Loans included in the
[conversion] [continuation] shall be
months.]
The Company certifies that on the date hereof, and on the proposed Conversion/Continuation
Date both before and after giving effect thereto, no Event of Default or Unmatured Event of Default
has occurred and is continuing, or would result from such proposed [conversion] [continuation].
|
|
|
|
|
|
[LANCE, INC.][SNYDERS-LANCE, INC.]
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
-14-
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
|
|
|
To:
|
|
Bank of America, National Association, as Administrative Agent, and the Lenders which are
party to the Credit Agreement referred to below
|
Reference is made to the Credit Agreement dated as of December 7, 2010 (as amended or
otherwise modified from time to time, the
Credit Agreement
) among Snyders-Lance, Inc.
(f/k/a Lance, Inc.) (the
Company
), various financial institutions, and Bank of America,
National Association, as Administrative Agent. Terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement.
I.
|
|
Reports
. Enclosed herewith is a copy of the Companys most recent [Form 10-Q/Form
10-K] filed with the SEC, which includes the [annual audited/quarterly] report of the Company
as at __________, ____ (the
Computation Date
). This report fairly presents, in
accordance with GAAP (subject to ordinary, good faith year-end audit adjustments) the
consolidated financial position of the Company and its Subsidiaries, as of the Computation
Date and for the period then ended.
|
|
II.
|
|
Financial Tests
. The Company hereby certifies and warrants to you that the following
is a true and correct computation as at the Computation Date of the following ratios and/or
financial restrictions contained in the Credit Agreement:
|
A.
Subsection 8.1(a) Total Debt to EBITDA Ratio
|
|
|
|
|
(1) Total Indebtedness as of the last
day of the Computation Period
ending on the Computation Date:
|
|
$
|
|
|
|
|
|
|
|
(2) EBITDA for the Computation Period
ending on the Computation Date
|
|
$
|
|
|
|
|
|
|
|
(3) Ratio of Item (1)
to Item (2):
|
|
|
_._
|
%
|
|
|
|
|
|
(4) Maximum ratio allowed:
|
|
|
3.25 to 1
|
1
|
|
|
|
1
|
|
Or, with respect to no more than four
consecutive Computation Periods following a Material Acquisition, 3.50 to 1.
|
-15-
B.
Subsection 8.1(b) Interest Coverage Ratio
|
|
|
|
|
(1) EBIT for the Computation Period
ending on the Computation Date:
|
|
$
|
_____
|
|
|
|
|
|
|
(2) Interest Expense for the
Computation Period ending on the Computation Date:
|
|
$
|
_____
|
|
|
|
|
|
|
(3) Ratio of Item (1)
to Item (2):
|
|
|
_.__
|
%
|
|
|
|
|
|
(4) Minimum ratio allowed:
|
|
|
2.50 to 1
|
|
III.
|
|
Defaults
. The Company hereby further certifies and warrants to you as of the date of the filing of the [Form 10-Q/Form
10-K] referred to in
clause I
that no Event of Default or Unmatured Event of Default has occurred and is continuing.
|
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed and delivered by
its duly authorized officer this
day of
,
.
|
|
|
|
|
|
SNYDERS-LANCE, INC.
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
-16-
EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this
Assignment and Assumption
) is dated as of
the Effective Date set forth below and is entered into by and between [the][each]
2
Assignor identified in item 1 below ([the][each, an]
Assignor
) and
[the][each]
3
Assignee identified in item 2 below ([the][each, an]
Assignee
).
[It is understood and agreed that the rights and obligations of [the Assignors][the
Assignees]
4
hereunder are several and not joint.]
5
Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (the
Credit Agreement
), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and Assumption as if set
forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignors][the respective Assignors]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit included in such
facilities
6
) and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
|
|
|
2
|
|
For bracketed language here and
elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is
from multiple Assignors, choose the second bracketed language.
|
|
3
|
|
For bracketed language here and
elsewhere in this form relating to the Assignee(s), if the assignment is to a
single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
|
|
4
|
|
Select as appropriate.
|
|
5
|
|
Include bracketed language if there are
either multiple Assignors or multiple Assignees.
|
|
6
|
|
Include all applicable subfacilities.
|
-17-
(i) and (ii) above being referred to herein collectively as [the][an]
Assigned
Interest
). Each such sale and assignment is without recourse to [the][any] Assignor and,
except as expressly provided in this Assignment and Assumption, without representation or warranty
by [the][any] Assignor.
|
|
|
|
|
|
|
1.
|
|
Assignor[s]
:
|
|
____________________
|
|
|
|
|
|
|
|
|
|
|
|
|
|
____________________
|
|
|
|
|
|
|
|
|
|
2.
|
|
Assignee[s]
:
|
|
____________________
|
|
|
|
|
|
|
|
|
|
|
|
|
|
____________________
|
|
|
|
|
|
|
|
|
|
|
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [
identify Lender
]]
|
|
|
|
|
|
|
|
3.
|
|
Borrower(s)
:
|
|
____________________
|
|
|
|
|
|
|
|
|
|
4.
|
|
Administrative Agent
: Bank of America, N.A., as the administrative agent under the Credit Agreement
|
|
|
|
|
|
|
|
5.
|
|
Credit Agreement
: Credit Agreement, dated as of December 7, 2010, among Snyders-Lance, Inc. (f/k/a Lance, Inc.), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and Issuing Lender
|
-18-
6.
Assigned Interest[s]
:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate
|
|
|
|
Percentage
|
|
|
|
|
|
|
Amount of
|
|
Amount of
|
|
Assigned of
|
|
|
|
|
|
|
Commitment/Loans
|
|
Commitment/Loans
|
|
Commitment/
|
|
CUSIP
|
Assignor[s]
7
|
|
Assignee[s]
8
|
|
for all Lenders
9
|
|
Assigned
|
|
Loans
10
|
|
Number
|
|
|
|
|
$
|
|
$
|
|
%
|
|
|
|
|
|
|
|
|
|
[7.
Trade Date
: __________________]
11
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
|
|
|
|
|
|
ASSIGNOR
[NAME OF ASSIGNOR]
|
|
|
By:
|
|
|
|
|
Title:
|
|
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ASSIGNEE
[NAME OF ASSIGNEE]
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By:
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Title:
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[Consented to and]
12
Accepted:
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BANK OF AMERICA, N.A., as
Administrative Agent
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By:
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Title:
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[Consented to:]
13
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7
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List each Assignor, as appropriate.
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8
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List each Assignee, as appropriate.
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9
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Amounts in this column and in the
column immediately to the right to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
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10
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Set forth, to at least 9 decimals, as
a percentage of the Commitment/Loans of all Lenders thereunder.
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11
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To be completed if the Assignor and
the Assignee intend that the minimum assignment amount is to be determined as
of the Trade Date.
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12
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To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
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-19-
BANK OF AMERICA, N.A., as Issuing Lender
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By:
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Title:
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SNYDERS-LANCE, INC.
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By:
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Title:
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13
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To be added only if the consent of the
Borrower and/or other parties (e.g. Issuing Lender) is required by the terms of
the Credit Agreement.
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-20-
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
CREDIT AGREEMENT DATED AS OF DECEMBER [__], 2010 WITH SNYDERS-LANCE, INC.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.
Representations and Warranties
.
1.1.
Assignor
. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2.
Assignee
. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section
11.6(b)(iii)
,
(v)
and
(vi)
of the Credit Agreement (subject to such consents,
if any, as may be required under
Section 11.6(b)(iii)
of the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by [the][such] Assigned Interest and either it, or the Person
exercising discretion in making its decision to acquire [the][such] Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the most recent
financial statements delivered pursuant to Section 7.1 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned
Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
[the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent,
-21-
[the][any] Assignor or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2.
Payments
. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.
3.
General Provisions
. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of North Carolina.
-22-
EXHIBIT E
FORM OF NOTE
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, LANCE, INC. (name to be changed to SNYDERS-LANCE, INC.)
(the
Company
), hereby promises to pay to the order of ____________ (the
Lender
) the principal sum of ________________ Dollars ($____________) or, if less, the
aggregate unpaid principal amount of the Loans made by the Lender to the Company pursuant to the
Credit Agreement, dated as of December 7, 2010 (as amended or otherwise modified from time to time,
the
Credit Agreement
), among the Company, various financial institutions, and Bank of
America, National Association, as Administrative Agent, on the dates and in the amounts provided in
the Credit Agreement. The Company further promises to pay interest on the unpaid principal amount
of the Loans evidenced hereby from time to time at the rates, on the dates, and otherwise as
provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which each Loan is made and
each payment of principal with respect thereto on the schedules annexed hereto and made a part
hereof, or on continuations thereof which shall be attached hereto and made a part hereof; provided
that any failure to endorse such information on such schedule or continuation thereof shall not in
any manner affect any obligation of the Company under the Credit Agreement and this Promissory Note
(this
Note
).
This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement, which Credit Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
Terms defined in the Credit Agreement are used herein with their defined meanings therein
unless otherwise defined herein. This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of North Carolina without regard to the conflicts or choice
of law principles thereof.
-23-
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed and delivered as of
the day and year first above written.
-24-
Schedule A to Note
BASE RATE LOANS AND REPAYMENTS OF
BASE RATE LOANS
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(2)
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(3)
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Amount of
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Amount of
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(4)
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(1)
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Base
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Base Rate
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Notation
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Date
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Rate Loan
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Loan Repaid
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Made By
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-25-
Schedule B to Note
EURODOLLAR RATE LOANS AND REPAYMENTS
OF EURODOLLAR RATE LOANS
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(3)
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(4)
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(2)
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Interest
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Amount of
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Amount of
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Period for
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Eurodollar
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(5)
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(1)
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Eurodollar
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Eurodollar
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Rate
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Notation
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Date
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Rate Loan
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Rate Loan
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Loan Repaid
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Made By
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-26-